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The Court of Appeal has given an important judgment clarifying the nature of a local planning authority’s power to regulate advertisements by serving a notice under regulation 8(1)(a) of the Planning (Control of Advertisements) (England) Regulatiosn 2007. The effect of such a notice is to remove the right which would otherwise exist to display advertisements pursuant to “deemed consent” under Part II of the Regulations.

The Appellant, Putney Bridge Approach Ltd, argued that a planning inspector, in upholding a notice served by the London Borough of Hammersmith and Fulham Ltd, had focussed unduly on the particular advertisements displayed on the site, which could have been controlled by a more limited notice under reg 8(1)(a) directed at those advertisements, rather on the suitability of the site itself for advertisements, and pointed to the “draconian” effect of the notice in removing all rights to advertise pursuant to deemed consent.  In the Court of Appeal it argued that a notice under reg 8(1)(b) could only be appropriate where the site was unsuitable for any advertisements of the relevant kind. If successful that argument would have significantly restricted the ability of planning authorities to control harmful advertisements in their area.

The Court of Appeal  (Hamblen, Hickinbottom and Coulson LJJ) rejected this argument, and refused the appeal. As Coulson LJ explained:

11. Mr Buley submitted that such an interpretation would render Regulation 8(1)(b) empty in practical terms. It would mean that it would only be on the rarest occasions that the LPA could serve a valid DN under that provision, because it would only be on the rarest occasions that they could be satisfied that any kind of advertisement of the relevant category on the site, no matter how big or how small, and no matter what form it took, would inevitably cause a substantial injury to the amenity of the locality such as to justify a DN relating to the site as a whole. Mr Buley submitted that it could not be the intention of the Regulation to work that way and that, as a matter of construction, Regulation 8(1)(b) did not require the LPA to go that far. He said that, on the basis of the words in Regulation 8, if the LPA identified an inherent likelihood of substantial injury to amenity caused by advertisements on a particular site, rather than injury caused by a particular advertisement, then a DN under Regulation 8(1)(b) was justified.

12. As a matter of interpretation, I consider that Mr Buley’s submissions are correct.

This leaves a developer free to apply for express consent for a particular advertisement if it can show that it would not be harmful.

Tim Buley acted for the successful Secretary of State.

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