Display of Advertisements and Discontinuance Notices

The recent case of Putney Bridge Approach Limited v Secretary of State for Communities and Local Government [2018] EWCA Civ 2268 has helped clarify how local planning authorities (“LPAs”) should exercise their powers when serving discontinuance notices requiring the removal of an advertisement that has deemed consent and approach the question of whether to withdraw deemed consent for a specific advertisement or the whole site on which it is displayed.

Advertisements and Planning Control

Planning control over the display of advertisements is a self-contained regime principally found in the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (the “Regulations”).

The Regulations divide advertisements into 3 categories:

• Those that are exempt from needing deemed or express consent to be displayed;
• Those that enjoy deemed consent; and
• Those that require express consent to be displayed.

Schedule 1 specifies 9 classes of advertisement that do not need deemed or express consent to be displayed, providing that they meet certain criteria. Examples include advertisements displayed on or in a vehicle normally employed as a moving vehicle such as advertisements on the side of a bus (Class B) and advertisements relating to a pending election (Class E).

Schedule 3 identifies 17 classes of advertisement that enjoy deemed consent if they adhere to certain criteria (such as size, positioning, or whether illumination and moving parts are permitted). Examples of advertisements that can enjoy deemed consent include those displayed on forecourts of business premises (Class 6), inside buildings (Class 12), and on the side of telephone kiosks (Class 16). An advertisement that enjoys deemed consent can be displayed for as long as the advertisement complies with any terms and conditions applicable to that class of deemed consent.

All other advertisements that do not fall within an exempt class and do not enjoy deemed consent can only be displayed if the LPA grants express consent following an application.

It is a criminal offence to display an advertisement in contravention of the Regulations which is punishable with a fine of up to £2,500 (and, in the case of a continuing offence, up to £250 per day for each day the offence continues after the first conviction).

Establishing that an advertisement enjoys deemed consent is very valuable, especially for the commercial advertising display companies. The case law and experience have involved numerous examples of advertisers attempting to bring new and innovative methods of displaying advertisements within one of the classes of deemed consent.

However, the right to display an advertisement that enjoys deemed consent is subject to the LPA’s power to issue a Discontinuance Notice withdrawing that deemed consent and requiring the person to stop displaying the advertisement in circumstances where the LPA considers that it is necessary to do so to remedy a substantial injury to the amenity of the locality or if the advertisement poses a danger to members of the public.

A Discontinuance Notice can apply either to a specific advertisement being displayed (Regulation 8(1)(a)), or to a particular site that is displaying advertisements (Regulation 8(1)(b)).

The case of Putney Bridge helps clarify the approach that should be taken by LPAs when deciding whether to issue a Discontinuance Notice that withdraws deemed consent for the display of advertisements at a particular site or solely for a particular advertisement.

The Facts

In Putney Bridge, the appellant company (the “Company”) owned an office building located in a prominent position in an open setting along the River Thames. The appellant displayed an internally illuminated LED advertising screen inside the building facing outwards through its windows into the street.

Being an illuminated advertisement displayed inside a building, it enjoyed deemed consent under Class 12 of Schedule 3. The LPA considered there was a substantial injury to the amenity of the locality caused by its illumination and the flashing effect due the frequently changing advertisements that were being displayed on the screen.

The LPA issued a Discontinuance Notice withdrawing deemed consent and requiring the Company to discontinue displaying such advertisements on the whole site under Regulation 8(1)(b).

The Company appealed against the Discontinuance Notice. They argued that before serving a Discontinuance Notice withdrawing deemed consent for a site (rather than solely for a particular advertisement) the LPA had to be satisfied that the substantial injury to the amenity would be inevitable and that there was no hypothetical alternative size, location or type of advertisement that could be displayed that would avoid harming the amenity. The Company argued that if there was a hypothetical advertisement that could be displayed without causing such harm the LPA could only issue a Discontinuance Notice under Regulation 8(1)(a) withdrawing deemed consent for that particular advertisement and not the site as a whole under Regulation 8(1)(b).

The court rejected this argument. The court confirmed that a Discontinuance Notice can be issued in respect of a site under Regulation 8(1)(b) if there is likely to be a substantial injury to the amenity of the locality caused not solely by a specific advertisement but the use of a particular site for the display of advertisements within that deemed consent class. The Court confirmed that an LPA was not required to consider every hypothetical advertisement that could be displayed on the site before reaching its decision.

The court noted that to require the LPA to consider every potential advertisement that could be displayed within the building and then decide whether each hypothetical advertisement would or might give rise to a substantial injury to the amenity of the locality was unworkable in practice and would place an impossible burden on the LPA.

The Company also tried to argue that the Discontinuance Notice would prevent the display of any advertisement on the site. The Court also dismissed this argument pointing out that the effect of the Discontinuance Notice was not that draconian. All the Discontinuance Notice did was to withdraw the deemed consent for the display of advertisements within that class.

Deemed consent and express consent are separate regimes. The Discontinuance Notice did not prevent the Company from submitting an application to the LPA for express consent and the existence of the Discontinuance Notice would not be relevant in the LPA’s consideration of the merits of any application for express consent.

Practical Tips for LPAs:

• When deciding whether to issue a site specific Discontinuance Notice under Regulation 8(1)(b) the LPA will need to be satisfied that the complete removal of deemed consent is justified. The LPA and should define the site or part of the site to which the Discontinuance Notice will apply so as to avoid applying it unnecessarily to parts of the site where an advertisement could be displayed without substantially injuring the amenity of the locality or causing a danger to members of the public.
• Notwithstanding the decision in this case the planning practice guidance for advertisements recommends that before issuing a Discontinuance Notice an LPA should consider whether a modified display would be acceptable and to discuss this with the person displaying the advertisement. Discussions will also help reduce the risk of a successful appeal.
• The Discontinuance Notice must contain a statement of the reasons explaining why the LPA consider that the advertisement is causing a substantial injury to the amenity of the locality or that members of the pubic are being endangered.
• When specifying the period within which the display must be discontinued, the LPA should consider the particular circumstances and allow the person displaying the advertisement a reasonable period of time to remove the advertisement.