“SECOND SCHEDULE The use of the site for display of an advertisement is considered to cause substantial injury to amenity of the locality and contrary to the overall aims of the regeneration strategies for New Cross, NOMA and the Northern gateway as a whole. The advertisement is on a main arterial road and highly visible due to its dominating size at this crossroad box junction and fails to make a positive contribution to the wider regeneration strategy for the area. In addition, the junction of the A664 Rochdale Road / A665 Ring Road / Angel Street forms part of a key route network and is a highly trafficked complex junction which required increased cognitive demand from drivers. It is therefore considered that the retention of an illuminated digital sign at this location is likely to add additional conflicts and create the potential for driver distraction resulting in a ‘severe impact’ with reference to the National Planning Policy Framework and therefore detrimental to pedestrian and highway safety; it is therefore considered that the uncontrolled use of the site for the display of advertisements, deemed to be granted under the Regulations, should cease.”
“I am satisfied that despite inelegant drafting of the First Schedules, both notices were clear in that they were issued under Regulation 8(1)(b), i.e. in respect of “the use of a particular site for the display of advertisements for which there is deemed consent”.”
“30. Whilst recognising continuing plans for the area which the Council promotes, it was undisputed at the hearing that the effect the advertisement has on amenity and danger to the public must be judged having regard to the present situation, notwithstanding that the advertisement has had the benefit of deemed consent under the Regulations for a considerable time. 31. The appeal site is located in front of a car park at a busy signal-controlled staggered crossroad box junction serving 4 junctions and including cycling and pedestrian facilities. The display is single sided and has the dimensions 18.6m x 4.65m x 0.265m, erected 2m above ground level on steel legs. It is a very large structure that appears overbearing and dominates the immediately surrounding area above the pavement at ground level. The property immediately adjacent to the car park, known previously as Swan House, has now been demolished and redevelopment has substantially progressed for a 31 storey mixed use, residential led development and improvements to the public realm nearby. Other sites now completed or nearing completion include the Marriott Hotel, Stay City apart hotel and several residential schemes on Oldham Road, Addington Street, Goulden Street and Thompson Street. 32. My site inspection included a tour of the advertisement display from all angles, at close quarters and from a distance. The Regulations state that when considering whether to serve a discontinuance notice, regard shall be had to any material change of circumstances that has occurred. I was struck by how large and incongruous the advertisement structure was against the background of the newly developed Swan House when viewed from certain angles, compared with how that building during construction was shown in some of the that building during construction was shown in some of the submitted images. 33. Swan House is a high-quality development where the use of the site for the advertisement obscures and detracts from attractive architectural features of the building from several viewpoints such as its fenestration, materials but also including its interesting articulated form and disposition in the street scene. More generally the use of the site for advertisement displays significantly undermines the attractive nature of much of the residential and other forms of built development nearby. 34. Despite the quality of materials used in the advertisement, its scale and bright and constantly changing displays also jar with the appearance of the surrounding buildings. Overall, it presents as an intrusive feature in the street scene, considerably at odds with the improved appearance of built development and the public realm in the area. The large blank featureless rear of the structure, visible from within the car park and the street alongside it, adds to my concern. I therefore find that the use of the site for the advertisement display causes substantial injury to the character and appearance of the area in its urban context.”
““Advertisement” means any word, letter, model, sign, placard, board, notice, awning, blind, device or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purposes of, advertisement, announcement or direction, and (without prejudice to the previous provisions of this definition) includes any hoarding or similar structure used or designed, or adapted for use and anything else principally used, or designed or adapted principally for use for the display of advertisements, and references to the display of advertisements shall be construed accordingly”
“3.- Powers to be exercised in the interests of amenity and public safety (1) A local planning authority shall exercise its powers under these Regulations in the interests of amenity and public safety, taking into account – (a) the provisions of the development plan, so far as they are material; and (b) any other relevant factors. (2) Without prejudice to the generality of paragraph (1)(b)- (a) factors relevant to amenity include the general characteristics of the locality, including the presence of any feature of historic, architectural, cultural or similar interest; (b) factors relevant to public safety include- (i) the safety of persons using any highway, railway, waterway, dock, harbour or aerodrome (civil or military); (ii) whether the display of the advertisement in question is likely to obscure, or hinder the ready interpretation of, any traffic sign, railway sign or aid to navigation by water or air; (iii) whether the display of the advertisement in question is likely to hinder the operation of any device used for the purpose of security or surveillance or for measuring the speed of any vehicle.” (a) the provisions of the development plan, so far as they are material; and (b) any other relevant factors. (a) factors relevant to amenity include the general characteristics of the locality, including the presence of any feature of historic, architectural, cultural or similar interest; (b) factors relevant to public safety include- (i) the safety of persons using any highway, railway, waterway, dock, harbour or aerodrome (civil or military); (ii) whether the display of the advertisement in question is likely to obscure, or hinder the ready interpretation of, any traffic sign, railway sign or aid to navigation by water or air; (iii) whether the display of the advertisement in question is likely to hinder the operation of any device used for the purpose of security or surveillance or for measuring the speed of any vehicle.”
“8.- Discontinuance of deemed consent (1) Subject to paragraph (2), the local planning authority may, if it is satisfied that it is necessary to do so to remedy a substantial injury to the amenity of the locality or a danger to members of the public, serve a notice requiring the discontinuance of – (a) the display of a particular advertisement for which there is deemed consent; or (b) the use of a particular site for the display of advertisements for which there is deemed consent.” (a) the display of a particular advertisement for which there is deemed consent; or (b) the use of a particular site for the display of advertisements for which there is deemed consent.”
“How much detail is needed in the statement of reasons? Regulation 8 requires a statement of the reasons for taking discontinuance action. This must explain why the local planning authority considers that substantial injury to the amenity of the locality or a danger to members of the public, as the case may be, has been caused and also why it considers it necessary to serve the notice. The reasons given should be specific to the site and leave the person displaying the advertisement in no doubt about exactly what makes the display unacceptable to the local planning authority. If the notice specifies a particular advertisement(s), the statement should specifically address that particular advertisement(s). If the notice refers to the use of the site, the statement must explain why the use of the site as a whole for the display of advertisements should cease.”
“23. The only question in this application is whether the inspector made the error, attributed to her, of reasoning solely by reference to the existing advertisements that illuminated advertisements could not be placed on the site pursuant to a deemed consent without substantial injury to amenity. In my judgment that argument must fail. There are a number of reasons why that is so. First, it seems to me to be perfectly clear, although the inspector did not say so in so many words, that she is accepting the case made by the local authority. She spends her time dealing with why she rejects the appellant’s case, it is true, but it is clear that she must have considered the local authority’s case and is clearly to be taken, in my judgment, as accepting that it has made out the points that it made to the extent that there should be no illuminated advertisement on the site at least without there being an express consent. She is not in a position to consider every single possible illuminated advertisement which might be put forward but she was in a position to say that that should not be done by way of a deemed consent, and she could not impose conditions on the deemed consent itself. Larger advertisements would still have deemed consent. 24. The second point is that the local authority and the appellant were content to treat the existing advertisement as illustrative of the general issues that arose from the illuminated advertisements, and their arguments from the general arose from their very different appraisals of the specific advertisements. The local authority contended that it illustrated how severe were the problems of the illuminated advertisements. By contrast, the appellants contended that it illustrated how attractive they were to the street scene. Each treated the specifics as illustrating the disadvantages or otherwise of illuminated advertisements in general in Riverbank House. The inspector clearly came down against the appellant’s contention and was entitled, taking their arguments as expressed by them, to conclude that there were no illuminated advertisements that should be the subject of deemed consent. In so doing she was, in my judgment, reflecting the entire thrust of the appellant’s case. No examples were put forward of alternative advertisements which could be in place which could avoid substantial injury to amenity and thus warrant a different form of discontinuance notice.”
“17. What lay at the heart of Mr Edwards’s case about regulations 8(1)(b) was the proposition that, for a DN under regulation 8(1)(b) to be valid, the LPA had to be satisfied that the substantial injury would be, to all intents and purposes, inevitable: that no alternative size, location, or type of advertisement of the relevant category or categories at the site (whether expressly identified by the owner or not) could avoid substantial injury to the amenity of the locality. In effect, his submission was that, if the LPA could not satisfy itself that no hypothetical advertisement might remedy the injury to amenity, the LPA’s concern should be dealt with by a DN under regulation 8(1)(a) only. 18. Mr Tim 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. 19. As a matter of interpretation, I consider that Mr Buley’s submissions are correct. The straightforward distinction in regulation 8 is between a particular advertisement (regulation 8(1)(b)) on the one hand, and a particular site (regulation 8(1)(b)) on the other. If the LPA reasonably conclude that there is or is likely to be a substantial injury to the amenity of the locality, caused not by a particular advertisement, but the use of a particular site for the display of advertisements of the relevant category, then a valid DN can be served under regulation 8(1)(b). In addition, I consider that the LPA is not required to consider every hypothetical advertisement that might be put up on the site before reaching this conclusion, a point to which I return in greater detail in paras 27-35 below. 20. In the present case, it is clear that both the LPA and the inspector concluded that there was a general problem with the display of illuminated advertisements on the site. Those problems are detailed in the passages from the appeal decision which I have set out in para 9 above. As Ouseley J correctly noted, and on a proper interpretation of the regulation, I consider that the LPA and the inspector were entitled to conclude that it was necessary to serve the more extensive notice under regulation 8(1)(b) of the 2007 Regulations.”
“22. Throughout his written submissions, Mr Edwards was keen to stress what he said was the far reaching effect of the DN in this case. That is perhaps at its starkest at para 25 of his skeleton argument where he asserts that the effect of the DN “is to prevent the display of (a) any illuminated advertisement (b) of any form (c) anywhere within Riverbank House pursuant to deemed consent conferred by regulation 6 and Schedule 3, Class 12 of the 2007 Regulation”
“28. I have no hesitation in rejecting that submission. First, I consider it flows from the building owner’s incorrect interpretation of regulation 8(1) and the fact that the DN discontinues deemed consent only. 29. Secondly, I consider that it is wrong both as a matter of planning law and as a matter of practicality, to say that (regardless of the case being made by the owner of the site) the LPA or the inspector on appeal were required to satisfy themselves that every other conceivable advertisement that might have been installed at the site would also cause substantial injury. 30. It has long been recognised in planning law (and indeed in any other field where a decision-maker has to consider two opposing cases) that the decision-maker is not required in law to stray beyond the parties’ respective cases. Thus, in Finlay v Secretary of State for the Environment [1983] JPL 802 Forbes J said: “It was one thing to say that where the question of conditions was being canvassed it might be sensible for the Secretary of State to consider making a slight alteration to the condition if that would deal with the problems that might arise: M J Shanley Ltd v Secretary of State for theEnvironment [1982] JPL 380. It was a highly different thing to suggest that where there had been no canvassing of any possible condition, the Secretary of State was bound to look around and consider whether there was or was not some possible condition which might be attached which might save this planning application.” 31. This approach was endorsed by the Court of Appeal in Top Deck Holdings v Secretary of State for the Environment [1991] JPL 961.Mann LJ said that an inspector should not have imposed on him anobligation to cast about for conditions not suggested before him. 32. Moreover, from a practical point of view, it would be unworkable if the LPA (before serving the DN), or the inspector (on appeal) were required to consider every potential advertisement that could be erected within the building, and to ask whether that hypothetical advertisement would or might give rise to a substantial injury to the amenity of the locality. That would place an impossible burden on the LPA and on the inspector which, given that the DN goes to deemed consent only, would be unwarranted. 33. Thirdly and in any event, that is not what happened in this case. As Ouseley J noted in his judgment, and as was conclusively demonstrated when we were taken to the written statements of each side’s case which were produced for the inspector, there was no attempt by either side to identify other potential advertisements that would or might not have been injurious. Instead both parties focused on the particular advertisements on the site, because both parties recognised that that was the relevant thrust of any inquiry for the purposes of regulation 8(1)(b). 34. Mr Edwards argued that, because the inspector had the power to deal with the matter as if it was an application for express consent and could therefore attach conditions thereto (see para 5 above), the inspector had the power to allow entirely different kinds of advertisements at the site to those which were in situ. He said that the inspector erred in not exercising that power here. He said that she had been asked to do so, and he took, for example, para 5.34 of the building owner’s statement of case under the heading “Other matters”, where the building owner (by way of a fall-back) asked the inspector to place conditions on the use of the existing advertisements. 35. In my view, this argument fails at every level. First, it is plain that the whole thrust of the building owner’s statement of case was in respect of the advertisements actually present on site. Even para 5.34 was an argument in respect of those advertisements, not different hypothetical advertisements. Secondly, it would have been quite impossible for the inspector to consider, of her own volition, and without any material provided by either side, what illuminated advertisements might be possible on the site, what size they should be, whether they should have moving images, and what the luminescence level should be. Indeed, I consider, that if the inspector had undertaken such an exercise, one or more of the parties might properly have complained that the result was a breach of natural justice. 36. The building owner’s undisguised aim was to hang on to the existing advertisements. The building owner made no application for express consent, let alone an application by reference to new/varied conditions. It cannot now be said that the inspector should have undertaken such a task herself.” “It was one thing to say that where the question of conditions was being canvassed it might be sensible for the Secretary of State to consider making a slight alteration to the condition if that would deal with the problems that might arise: M J Shanley Ltd v Secretary of State for theEnvironment [1982] JPL 380. It was a highly different thing to suggest that where there had been no canvassing of any possible condition, the Secretary of State was bound to look around and consider whether there was or was not some possible condition which might be attached which might save this planning application.”
“38. In particular, there is nothing in the decision of the Inspector in this case that would prejudice an application for an express consent in respect of a different advertisement. On the other hand to have expected the Inspector to investigate the possible alternative advertisements that were not even proposed as being potential uses of the location is to require too broad an inquiry without giving the Inspector the means rationally to make a decision. 39. Accordingly, it was not necessary for the Inspector either to have reasons to justify the prohibition of advertisements of all classes nor to express those reasons in his decision. It was sufficient that, on the material before him as to the effect of the particular advertisement, he concluded that the Discontinuance Notice ought to be upheld. The position might have been very different had the Claimant advanced an argument for deemed consent to remain operative on the site for other classes of advertisement. As the Claimant says within its skeleton argument, the ambit of the Discontinuance Notice, in particular whether it related to advertisements of all classes specific display for which express consent had been granted or advertisements of the same class, was an issue that was raised during the course of the Appeal. However the Claimant did not advance arguments as to the class of advertisement that might not fall foul of the reasoning of the decision letter. It cannot criticise the Inspector for failing to analyse arguments that were not advanced. 40. I am not deflected from this conclusion by the fact that, during the course of the appeal, the Claimant raised the argument that the Discontinuance Notice arguably went beyond what was necessary to deal with the perceived harm of the particular advertisement since it covered advertisements of all classes under Schedule 3 of the 2007 Regulations. As I have indicated, that is the correct construction of the Discontinuance Notice, but that consequence cannot cause the Inspector to have to investigate the possible significance of the notice for other types of advertisement in circumstances where the party with consent is not arguing even in the abstract that it should be entitled to use the deemed consent procedure to house different types of advertisement on the site. The Claimant’s position is no stronger simply because it was aware of and drew the Inspector’s attention to the consequence of upholding the Discontinuance Notice – it was incumbent upon the Claimant to go further if it wished to invite the Inspector to vary the notice or grant express consent under the statutory powers.”