JC Decaux Ltd. v First Secretary of State [2003] EWHC 407 (Admin)

Case No CO/4352/2002

[2003] EWHC 407 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Tuesday, 11 February 2003

Strand

London WC2

B E F O R E:

MR JUSTICE SULLIVAN

Between

JC DECAUX LTDClaimant

-v-

Between

FIRST SECRETARY OF STATEDefendant

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR G JONES (instructed by Marons, Leicester LA19 1WY) appeared for CLAIMANT

MR J MAURICI (instructed by Treasury Solicitor, London SW1H 9JS) appeared for DEFENDANT

Tuesday, 11 February 2003

J U D G M E N T

[1]MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash two decisions made by an inspector appointed by the first defendant contained in a decision letter dated 13 August 2002. In his decision letter the Inspector dismissed two appeals under Regulation 15 of the Town and Country Planning (Control of Advertisements) Regulations 1992 ("the Regulations") made by the claimant against decisions by the second defendant to refuse to grant express consent for advertisements. The first appeal related to two illuminated display panels, and the second, to one illuminated display panel. The second defendant's reasons for refusing express consent contended that the advertisements would be unduly prominent and detrimental to the visual amenity of the area and therefore contrary to Policy BD12 in the adopted Unitary and Development Plan ("UDP").

[2]The Inspector held an informal hearing on 6 August 2002. In its pre-hearing written statement the claimant said:

"3. Dealing firstly with the policy objection [conflict with Policy BD12] it is acknowledged that policies or guidelines contained in an operative development plan can be a factor to be taken into account in the assessment and determination of applications for express consent and any associated appeals. However such policies or guidelines cannot be a decisive factor in the determination of applications and appeals since it is a requirement of the Regulations that control over advertisements be exercised in the interests of amenity and public safety; the requirement in section 54A of the Town and Country Planning Act 1990 to determine applications for planning permission in accordance with the development plan does not apply to the advertisement control regime. This does not of course mean that no weight is to be given to policies or guidelines contained in a development plan, but it does mean that they are neither the starting point nor the final decisive consideration. Furthermore the weight to be given to any particular development plan policy or guideline will very much depend on whether a quoted policy or guideline is over-prescriptive. Where a policy or guideline is over-prescriptive and does not follow the thrust of advice set out in Central Government guidance and in particular PPG19, then it is to be expected that the policy or guideline will normally command lesser weight as a material factor to be taken into account. 4. In the case of the quoted Policy BD12 it is considered that its fundamental thrust is unduly prescriptive by stating that 'advertisement hoardings may be unacceptable around building sites or where they screen unsightly areas. Elsewhere they will generally be discouraged's...' ... there is nothing in Central Government guidance to suggest that to be acceptable an outdoor advertisement panel must be restricted to being displayed in such settings. ... 5. The appellants agree that the proper way to deal with an application for express consent is to assess the particular proposal at the particular location proposed, in the interests of amenity, and where applicable, public safety."

[3]The claimant's written statement then referred to the recognition in PPG19 that there should be consistency in decisions made in response to applications for express consent. Reference was also made to a decision of Mr Duncan Ouseley QC (as he then was) in Retail Media v Secretary of State for the Environment Transport and the Regions and Macclesfield Borough Council [2001] JPL 1055. That was a case which was concerned with the adequacy of reasoning in a decision letter which was concerned with the issue of consistency. The claimant said that in the light of this case and the Policy Guidance in PPG19 it wished to draw the Inspector's attention to a number, of what I will refer to as "comparable" decisions made by the second defendant. The claimant made it clear that it was not seeking to cite those other decisions as precedents because:

"... it is fully acknowledged that the advertisement control regime operates in respect of particular proposals at particular locations and it will be rare to find an exact mirror image situation."

The claimant's representations also dealt with the history of advertisement display on the appeals site.

[4]The second defendant, in its representations said that the advertisement hoardings the subject of the appeals were unacceptable on amenity grounds:

"5.2 The proposed hoardings will be a large and visually obtrusive feature in the streetscene, particularly as they will be located in a prominent position on a well used route into and out of Leeds. Due to this prominence they will be seen from passing pedestrian and vehicular traffic along Whitehall Road. 5.3 It is considered that the display of the hoardings by virtue of their scale, mass, illumination, elevated position and siting in this very prominent position could, if allowed on appeal, represent an overdominant and intrusive feature to the detriment of the wider visual amenity of the streetscene and the surrounding area contrary to Policy BD12 of the adopted Unitary Development Plan."

[5]In his decision letter the Inspector said that the main issue in both of the appeals was the effect that the proposed advertisements would have on the character and appearance of this part of Leeds. There is no dispute that this was the main issue to be determined. Under the heading "Planning Policy", the Inspector said this (in paragraph 2):

"The Council refers to Policy BD12 of the Unitary Development Plan. This considers advertisement hoardings to be acceptable around building sites or where they screen unsightly areas. Elsewhere the policy aims to discourage them, with applications being assessed on their visual impact upon the surrounding area. This policy might be considered to be over-prescriptive but, in any case, the Regulations require decisions to be made only in the interests of amenity and public safety, and any other material considerations. Thus, whilst Policy BD12 is a material consideration, and can be afforded some weight, it cannot be decisive in itself. Planning Policy Guidance Note 19 'Outdoor Advertisement Control' (PPG19) is also a significant material consideration and I have afforded it considerable weight in relation to both of these appeals."

When dealing with matters of clarification and background information, the Inspector said in paragraph 5. "During the course of the hearing I visited the other advertisement sites referred to in the appellant's appendices. The points raised by the appellants in relation to these other sites are appropriate material considerations and relate to the advice in PPG19. Amongst other things this states that policy statements 'should give clear guidance to prospective advertisers on the likely acceptability of their proposals and provide a basis for rational and consistent decisions' and that it is 'important for the LPA to be consistent in assessing visual impact in similar surroundings'. Thus, whilst I have assessed these cases on their own merits, I have taken into account the detailed submissions of the appellants in relation to the other sites." The Inspector then set out his reasons in the case of Appeal A:

"6. Having reviewed the site from both near and distant viewpoints, I share the Council's concerns about these posters on this site. Whilst acknowledging the commercial and industrial nature of the site and the proliferation of other signage in the immediate vicinity, I consider that these particular signs, in this location, detract from the character and appearance of this part of Leeds. I acknowledge that this site shares some of the characteristics of the other sites visited, especially the facts that it is on a major route and in a predominantly commercial and industrial area. However, in my view, there are fundamental differences in this appeal, which in any case must be assessed on its merits. 7. Firstly, it is evident that considerable improvements have been carried out along the railway embankment. Secondly, the bridge and its supporting structure have also been rebuilt and the panelled metalwork re-painted. In my view, this bridge and its immediate surroundings now provide an attractive feature as one of the 'gateways' to the city. Leading from the motorway, this route passes other advertisement signs but, at the bridge approach, the appeal panels are also seen in conjunction with the signage on the appeal site buildings; the highway directional signage and other typical street furniture elements within the road. 8. In my view the overall result is one which detracts markedly from the attractive bridge structure and its embankment. I consider that this amounts to 'visual clutter' in this particular locality."

Having considered that issue in a little more detail, the Inspector concluded:

"I consider, therefore, that the panels are harmful to the character and appearance of [this] part of the city."

[6]The Inspector's approach to Appeal B in paragraph 9 of his decision letter was essentially the same, although he acknowledged that any effect of clutter would be less that in the scheme involving two advertisements. He was nevertheless concerned that the advertisement:

"would detract from the attractive 'gateway' feature and that it would harm the character and appearance of the locality by hiding the existing embankment foliage and any future growth."

So Appeal B also failed on visual amenity grounds.

[7]Under the heading "Other matters" (in paragraph 10) the Inspector said:

"In reaching my conclusions in both of these appeals, I have taken into account all of the other matters raised in favour of these two appeals. These include the full planning history; the physical nature and circumstances relating to approvals and consents at all of the other sites visited; the matters raised in relation to the 'Retail Media v Secretary of State' case and the fact that Policy BD12 of the UDP could be said to be over-prescriptive when considered against the positive advice on advertisements as set out in PPG19. However, none of these factors is so significant as to outweigh my conclusions that both proposals would visually harm the character and appearance of this part of Leeds."

[8]On behalf of the claimant, Mr Jones challenges the decision letter on five grounds. Ground 1.

[9]It is submitted that the Inspector had regard to an immaterial consideration in deciding that some weight would be given to policy BD12. Although the claimant had not argued in its written representations, or indeed in its oral representations of the hearing, that policy BD12 was legally an immaterial consideration, it was submitted before me that BD12 was unlawful because it conflicted with Regulation 4 of the Regulations, which provides:

"4(1) A local planning authority shall exercise their powers under these Regulations only in the interests of amenity and public safety, taking account of any material factors, and in particular - (a) in the case of amenity, the general characteristics of the locality, including the presence of any feature of historic, architectural, cultural or similar interest, disregarding, if they think fit, any advertisement being displayed there."

[10]It is common ground that any material factors must be factors material to the interests of amenity and public safety. Mr Jones submits that there is no power as there is when dealing with applications for planning permission to have regard to "other material considerations". That is to say, to considerations other than the interests of amenity and public safety. That, too, is not in issue.

[11]It is therefore submitted on behalf of the claimant, that the Inspector erred in saying in paragraph 2: "... the Regulations require decisions to be made only in the interests of amenity and public safety, and any other material considerations." (My emphasis)

[12]The Inspector had regarded Policy BD12 as another material consideration when he had no power to have regard to such considerations. It was further submitted that it would be inconsistent with Regulation 4, and therefore unlawful, for the local planning authority to adopt, whether as part of the development plan or on a non-statutory basis, policies relating to advertisements. The Regulations require that each advertisement has to be considered on its own merits in terms of amenity and public safety.

[13]While I accept that there is no category of "other material considerations" in addition to the interests of amenity and public safety that can lawfully be taken into consideration when determining applications for consent under the Regulations, I do not accept that planning policies, whether statutory or non-statutory, in so far as they relate to interests of amenity and public safety are irrelevant for the purposes of advertisement control. The list of material factors set out in paragraph (a) of Regulation 4(1) which must be taken into account in the case of amenity does not purport to be exhaustive. Specifically, it does not seek to exclude policies which are concerned with amenity. It includes the general characteristics of the locality. I do not understand why development plan or non-statutory policies seeking to control advertisements in the interests of amenity in any particular locality, having regard to those general characteristics, would be outwith the factors which may be considered under Regulation 4. The existence of a policy does not detract from an obligation to consider each case on its merits. The policy background merely forms part and parcel of the merits of the individual case. Development in the Green Belt is subject to the most stringent controls, but that does not mean that each case is not considered on its merits. Provided the policies in question are concerned with the interests of amenity and not with other matters such as housing or employment, then they are, as a matter of law, capable of being relevant as factors material to the interests of amenity for the purposes of Regulation 4. The fact that a particular policy, whether contained in the UDP or in a non-statutory document may be over-prescriptive or otherwise inconsistent with national policy guidance as set out in PPG19 goes to the weight to be attributed to, not the lawfulness of considering, the policy. PPG19 emphasises the need when deciding applications for express consent to avoid being over-prescriptive and also to avoid what might be described as a blanket approach. Paragraph 17 says this about advertisement control policies:

"Many LPAs have adopted (usually after public consultation) policies, often with associated design guidance, controlling outdoor advertisements in their area, or in particular parts of their area where the display of poorly designed advertisements will be especially harmful. Such policies and guidance can be helpful in advising prospective advertisers on the type of advertising displays which are likely to prove acceptable in the locality... Design guidance should allow for flexibility in design, avoiding excessive prescription and detail, and concentrating rather on the broad framework within which advertisement proposals will be considered. But even though advertisement control policies or design guidance may have been formulated having regard to matters of amenity and public safety, references to these policies and guidance cannot by themselves be the decisive factor in determining whether an advertisement is to be permitted. Because the Advertisements Regulations require that applications be considered only in the interests of amenity and public safety, taking account of any material factors, it will always be necessary to assess the specific amenity and public safety merits of the proposed advertisement display (including relevant factors mentioned in this Guidance) in relation to the particular application site."

[14]Returning to paragraph 2 of the decision letter, it is true that the Inspector referred to "other material considerations". But when one reads the remainder of the decision letter it is plain that apart from the reference to Policy B12 there were no other material considerations relied upon by the Inspector. Public safety not being relevant, the Inspector determined these appeals on visual amenity grounds alone. When dealing with Policy BD12 it is equally clear that the Inspector, in effect, accepted the claimant's argument that it was over-prescriptive and in this respect that it did not accord with the guidance in PPG19, and so should, in the claimant's words, "command lesser weight".

[15]There is a clear contrast between the Inspector's treatment of Policy BD12 which is "a material consideration and can be afforded some weight", and his treatment of national policy guidance in PPG19 which is "a significant material consideration and I have afforded it considerable weight." Perhaps of equal importance the Inspector's subsequent reasoning (in paragraphs 6 to 9) of the decision letter does not purport to rely on Policy BD12 or upon the presumption contained in that policy at all. There is nothing which suggests that the Inspector's policy starting point was that this was an area where advertisements should in general be discouraged. Instead, the Inspector adopted an approach which is entirely consistent with the advice set out in paragraph 17 of PPG19 (above).

[16]The Inspector considered whether these particular signs in this location detracted from the character and appearance of this part of Leeds. That Policy BD12 played no part in this process of reasoning is confirmed by the fact that the Inspector does not adopt the approach set out in the Council's representations or in the Council's reasons for refusal. It will be recalled that the Council's approach was that because there was detriment to visual amenity therefore the proposals were contrary to Policy BD12. If the Inspector had placed any weight on conflict with Policy BD12, as opposed to merely saying that it was capable of having some weight, then he would undoubtedly have said so. Ground 1 might have had some force if the Inspector had said words to the effect:

"Whilst these advertisements were not particularly harmful on this site in visual terms, nevertheless the Council's policy is to discourage further advertisements in this area, and I therefore conclude that permission should be refused."

That is the very antithesis of the Inspector's approach in the present case. That is not to say that the Inspector should not have referred to BD12; the second defendant had relied upon it and the claimant had argued that it was over-prescriptive. Having said that it was capable of being afforded some weight, the Inspector then proceeded to place no reliance upon it in his subsequent reasoning, and instead approached the issues in accordance with the guidelines in PPG19. Ground 2

[17]It is said that the Inspector failed to make any clear finding as to whether or not Policy B12 was over-prescriptive. Largely for the reasons set out under Ground 1 above, the Inspector was not required to say any more about Policy B12 than he did in paragraph 2 of the decision letter. He did in effect accept the claimant's contention that BD12 should be accorded lesser weigh. He then proceeded to give it no weight in his reasoning in paragraphs 6 to 9. In these circumstances, whether BD12 was or was not over-prescriptive was not the determining issue. The Inspector did not rely on any breach of BD12, but simply applied PPG19. Ground 3

[18]It is submitted that the Inspector failed to give the claimant a fair opportunity to address what is said to be a new issue raised by him in the decision letter, namely, that the site was one of the "gateways" to the city. There is no dispute that the second defendant said, in both its written and oral representations, that this site was in a very prominent position on a well-used route into and out of Leeds.

[19]At the claimant's request the Inspector visited the other sites referred to by the claimant on major routes in the city. In his witness statement Mr Hanna, who appeared at the hearing on behalf of the claimant, said that the "gateway" function of the site was not raised at the hearing or during the course of the site visit, during which the parties were free to point out the characteristics of the claimant's "comparable sites". He further says that since the appeal site is about a mile to the south of the city centre he considers that it is misleading to describe it as a "gateway."

[20]In a witness statement in response the Inspector refers to the second defendant's written submissions and says that its representative at the hearing, Carol Cunningham:

"...emphasised in oral submissions the improvements that had been made to both the bridge and the embankment along this prominent and well-used route into and out of Leeds. As I recall she described the site location as an 'entrance to the City.'"

There is also a letter from the second defendant's Department of Legal Services, dated 15 January 2003, which says, inter alia:

"Carol Cunningham was the Planning Officer present at the Inquiry held on 6th August 2002. It is her recollection that she did use the term 'entrance to the City' whilst giving oral evidence at the hearing and in the presence of the Inspector and the Appellant's Solicitor during the course of the site visit that took place."

In response to this Mr Hanna's second witness statement says:

"I would agree that in oral submissions Carol Cunningham of Leeds City Council indicated that the embankment had been improved and that the bridge had been rebuilt. The officer also advised that this was a prominent busy road. The suggestion that the officer advised the hearing that the appeal site and the adjacent bridge represented an 'entrance to the City' does not accord with my recollection."

[21]I will accept that the word "gateway" was not used at the hearing. But the Inspector was entitled to describe the impression of the site and its surroundings that he had gained at the site visit in his own words. There is a difference of recollection as to whether the planning officer used the words "entrance to the City". In my judgment, it is unnecessary to resolve that difference of recollection because I do not accept that in describing a rebuilt and repainted railway bridge over a well-used route into and out of Leeds as "one of the gateways to the city" the Inspector was doing no more than explaining in his own words his conclusion on a matter which had been fully debated at the hearing and during the site visit. He was not raising a wholly new issue which had not been previously discussed. There is no indication that he was using the word "gateway" (which he placed in inverted commas) in any technical sense, or as anything other than a convenient description of this particular bridge over this particular major route into Leeds.

[22]Mr Jones submitted that in some development plans particular importance was attached to gateways, and there were particular policies designed to protect amenity in such locations. That may well be the case; but the Inspector did not refer, nor was he referred to any such policy in the present case. He was simply describing how he perceived the site having visited it as part of his site inspection. It will be noted that he does not suggest that this bridge is the gateway to the city centre; it is merely one of the gateways to the city. The fact that the city centre is about a mile along the road does not detract from the Inspector's description of the site. He perceived this bridge over this major route as a gateway to the city, not the city centre. Ground 4

[23]It was submitted that the Inspector failed to address the need for consistency in decision-making in response to applications for approval of advertisements, or that he failed to provide adequate reasons in response to the claimant's arguments about the need for consistency with the other sites to which they had taken the Inspector on the site visit. The first part of that submission is plainly unarguable, given the terms of paragraph 5 of the decision letter. The Inspector referred not merely to the advice in PPG19 in general terms, he referred specifically to the emphasis upon the need for consistency and said that:

"it is 'important for the LPA to be consistent in assessing visual impact in similar surroundings."

In the final sentence of that paragraph he made it clear that, while he had assessed these appeals on their own merits, he had:

"taken into account the detailed submissions of the appellants in relation to the other sites."

Thus it is plain that the Inspector was well aware of the claimant's arguments on consistency. That is no doubt why he took some pains in paragraphs 6, 7 and 8 to explain why he considered that there were "fundamental differences in this appeal." In paragraph 6 he acknowledged that the site shared some of the characteristics of the other sites visited, especially the fact that it was on a major route and in a predominantly commercial and industrial areas.

[24]What then were the fundamental differences as perceived by the Inspector between this appeal and those other sites? The answer is to be found in paragraphs 7 and 8. It can be divided into two elements: positive and negative. On the positive side the Inspector referred to the considerable improvements which had been carried out along the railway embankment, and also to the fact that the bridge and its supporting structure had been rebuilt and repainted. That led him to the conclusion that this bridge and its immediate surroundings provided an attractive feature as one of the "gateways" to the city. On the negative side, while noting that on routes to this bridge one passed other advertisements, the Inspector was of the view that the appeal panels were being seen in conjunction with the signage on the appeal site buildings, the highway directional signage, and other typical street furniture, and that this resulted in visual clutter, such that the overall result was:

"one which detracts markedly from the attractive bridge structure and its embankment."

[25]Mr Jones submitted that the Inspector had not explained why this site was different from the others, because he had not said what he had made of the other sites: were they attractive? Was there visual clutter at those sites as well? Although adequate reasons are required if the Inspector is to properly deal with the issue of consistency if it is a principal issue during the course of the inquiry or hearing, it is plain that such reasons can be brief (see the observations of Mr Ouseley in RetailMedia.

[26]It is true that the Inspector does not say in express terms that the other sites on other major routes leading into the city were less attractive as gateways to the city, or that there was less visual clutter at those sites than there was at the appeal site. But the Inspector was not required to spell out the obvious. Having referred to those sites, he said that the appeal site shared some of their characteristics, then said there were fundamental differences, and explained what they were. It was sufficient for him to mention the attractiveness of the appeals site and the visual clutter there. He did not have to go further and say why he concluded that the appeal site was different in these two respects. He was obliged to give reasons for his decision, not reasons for reasons. Ground 5

[27]It is submitted that in concluding that the appeals site was a gateway to the city, the Inspector reached a perverse conclusion and/or that the conclusion was one which was disproportionate. Reference was made to the claimant's property rights under Article 1 of the first Protocol of the European Convention on Human Rights. Whilst the decision might be justified on the grounds of preserving amenity any such decision has to be proportionate. It was submitted that the detrimental effect on a gateway to Leeds was on any view too remote to be proportionate, so there was an unjustified interference with the claimant's property rights. Reference to the first Protocol adds nothing of any substance to this case. The Regulations seek to balance the interests of the landowner and the public interest in preserving amenity and safety. In so far as this ground relies on the Inspector's use of the term "gateway", and the complaint that the gateway is a mile from the city centre itself, I have dealt with those arguments. They are misconceived for the reasons set out above.

[28]In so far as this ground invites me, as a Judge sitting in the Royal Courts of Justice looking at a series of photographs, to conclude that an Inspector looking at a site and all the other sites relied on by the claimant reached an unreasonable conclusion on matters of visual impact it is doomed to fail. As I sought to explain in Newsmith v Secretary of State for Environment Transport and the Regions [2001] EWCH Admin 74:

"7. In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable. 8. Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task. It might be thought that the basic principles set out above are so well known that they do not need restating. But the Claimant's challenge in the present case, although couched in terms of Wednesbury unreasonableness, is, in truth, a frontal assault upon the Inspector's conclusions on the planning merits of this Green Belt case."

[29]In the present case the Inspector was concerned with the visual impact of these advertisements. That was pre-eminently a matter of planning judgments, and one which would be decided at the site visit, rather than in the inquiry chamber. In truth ground 5 is a frontal assault upon the Inspector's conclusions on visual amenity grounds. As such, it is doomed to fail.

[30]For all of these reasons this application must be dismissed.

[31]MR MAURICI: My Lord, I have an amended and agreed statement of cost.

MR JUSTICE SULLIVAN: Is that agreed, Mr Jones?

[33]MR JONES: Yes, my Lord.

[34]MR JUSTICE SULLIVAN: Thank you very much. The formal order is that the application is dismissed, the claimants are to pay the first defendant's costs, those costs are to be summarily assessed in the sum of £5,331.

Cited in 1 later judgment

Swindon Borough Council v First Secretary of State & Anor 2003