Jcdecaux UK Ltd., R (on the application of) v Wandsworth Borough Council [2009] EWHC 129 (Admin)

Case No CO/6836/2007

[2009] EWHC 129 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Tuesday, 20 January 2009

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE BLAKE

Between

THE QUEEN ON THE APPLICATION OF JCDECAUX UK LIMITEDClaimant

Between

WANDSWORTH BOROUGH COUNCILDefendant

Computer-Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

190 Fleet Street London EC4A 2AG

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

(Official Shorthand Writers to the Court)

Mr T Buley (instructed by Lovells) appeared for Claimant

Mr R Langham (instructed by ASB Law) appeared for Defendant

J U D G M E N T

[1]MR JUSTICE BLAKE: This is an application for judicial review of the decision of the defendant Borough Council to serve a notice pursuant to section 11 of the London Local Authorities Act 1995 requiring the claimant to remove an advertisement hoarding and its supporting structure that is erected on land belonging to Newton Preparatory School at 149 Battersea Park Road. Permission to bring these proceedings was granted by Collins J in October 2007. The Newton Preparatory School is an interested party in this these proceedings, but makes no appearance.

[2]The claimants submit that no such notice can lawfully be served because they have deemed consent for the advertisement and its structure by reason of Class 13 of Schedule 3 to the Town and Country Planning (Control of Advertisement) (England) Regulations 2007 made pursuant to section 220(1) of the Town and Country Planning Act 1990.

[3]It is common ground between the parties that the question of whether the display for advertising that is subject to the section 11 notice is indeed a proper subject of such a notice is a question of precedent fact for the court to decide. Collins J so concluded in a case of R(Maiden Outdoor Advertising Limited) v Lambeth Borough Council [2004] JPL 820 at page 826, paras 35 and 36. He did so by reference to the well-known case of Khawaja v the Secretary of State for the Home Department

[1984] AC 74

. I agree with that consensus of judicial determination and submission. I make the observation that the reason why this conclusion is reached is twofold. First, Parliament has given the power to direct removal, and in default, to enter private property and remove goods belonging to the claimant in this case where the advertisement is unlawfully displayed and not where the local authority reasonably consider it to be unlawfully displayed. Second, what the Act contemplates is precisely an interference with the rights to property as opposed to the exercise of a purely public law discretion, and that interference, just as in the case of interference with personal liberty, has to be justified by compliance with the qualifying conditions. In the absence of an effective statutory right of appeal against the giving of such a notice, it must therefore be the function of this court to decide whether the conditions precedent to the exercise of the power to give the notice are made out.

[4]I therefore turn to the facts of the case which will form the subject of the present determination. The outline facts may be described as follows. For some years, and at least since 1991, it appears that the wall (or at least part of the wall) of No. 151 Battersea Park Road that overlooks the school playground (now occupied by Newton School at 149 Battersea Park Road) has been used for advertising. In 1997 the claimant's predecessor in title entered into licence agreements with the owners of both 151 and 149 Battersea Park Road. In 2001, the claimant succeeded to these agreements and installed its own unique advertisement panel called a Wilmotte panel. In late 2006, after a disagreement as to how future licence fees would be shared between the owners of 151 and 149, the licence with 151 Battersea Park Road was terminated and a new agreement reached with the school at 149. It appears that, as a consequence, the advertising panel was detached from the wall of 151 (that is to say the flank wall) and was installed on a new structure in the playground of 149.

[5]Since the determination of the issues between the parties requires a comparison of the position before those changes in early 2007, I will endeavour here to describe the position before and after. Before the changes were made in the early part of January 2007, there was an illuminated advertisement hoarding displaying three adverts in sequence, the hoarding of which was fixed to the end wall of 151 Battersea Park Road at a maximum height of some 9 metres above the ground. The dimensions of the display screen were 3 metres in height, 6 metres in width, and 0.4 metres in depth. The screen itself extended from 6 metres in height at the bottom to 9 metres in height at the top. It was fixed to the wall by a number of short fixing bars behind the hoarding that were screwed into the wall of 151. The width of those fixing bars, the court is told, were 30 centimetres. So taking the 0.4 metres depth of the screen together with the 0.3 metres depth of the fixing bars, it would appear that the outer face of the panel was protruding some 0.7 metres from the brick wall to which it was attached. Beneath the panel there was a posting-gantry running along its six metre length and further protruding from the surface of the hoarding to a depth of about 1.1 metres. Thus, from about 6 metres up from the playground at 149, there was a gantry protruding some 1.8 metres into the airspace, and above the gantry from 6 to 9 metres, a volume of the school's airspace was displaced by the panel protruding from the wall.

[6]It is clear, therefore, that the before 2007 the advertising display interfered with the landowner's right of possession in the airspace above the land. That right of possession has been conveniently identified by Scott J (as he then was) in the case of Anchor Brewhouse Developments v Berkley House (Docklands Developments) Limited

[1987] 2 EGLR 173

. In that case a landowner complained of the overhanging cranes deployed by an adjoining landowner in the course of development. At page 175 at letter N, his Lordship said as follows:

"What is complained of in the present case is infringement of air space by a structure positioned upon a neighbour's land. The defendant has erected tower cranes on its land. Attached to each tower crane is a boom which swings over the plaintiff's land. The booms invade the air space over the plaintiffs' land. Each boom is part of the structure on the defendant's land. The tort of trespass represents an interference with possession or with the right to possession. A landowner is entitled, as an attribute of his ownership of the land, to place structures on his land and thereby to reduce into actual possession the air space above his land. If an adjoining owner places a structure on his (the adjoining owner's) land that overhangs his neighbour's land, he thereby takes into his possession air space to which his neighbour is entitled. That, in my judgment, is trespass. It does not depend upon any balancing of rights."

[7]Moreover, the hoarding attached to the flank wall could only be maintained and repaired by access from the land of the school. It was doubtless for this reason that the claimant's predecessors in title entered the two licence agreements to which reference has already been made. The first was with the owners of 151, and the substance of the agreement is reflected in the language of the preamble:

"NOW the landlords HEREBY LICENCE the Tenant to erect and thereafter to maintain within or about the premises of the Landlords and in positions to be approved by the Landlords [certain panels] and to display thereon advertisement posters for the period and upon the terms and conditions following ..."

[8]The terms of the licence with 149 (the school) are in different terms summarised as follows:

"NOW the landlords HEREBY LICENCE the Tenant to service the poster panel on the side wall of 151 Battersea Park Road, London SW8 at all reasonable times but to be agreed with the Caretaker."

[9]The claimant points out that the school might not have realised at the time that they entered the licence agreement in 1997 that it also had rights to prevent overhanging trespass to its air space. In my judgment, by signing the licence in the terms identified, it must implicitly have consented to the intrusion of its air space. The defendants submit that it is pertinent to note the terms of the licences, although it is not submitted that they determined the issue which will be eventually identified and the court has to decide in this case.

[10]Returning to the description of the premises before 2007, at ground level before the changes the playground space was of some 1,200 metres, and it extended right up to the flank wall of 151, where there was a decorative wall painting painted on the brick of the wall, at least in its lower regions.

[11]Following the changes made in January 2007, the position was as follows. First, the hoarding had lost any connection with the flank wall of 151. A number of bolts remain, but they attach nothing to the wall. It now stood on its self-supporting structure, erected within the playground at 159. Second, although this structure caused the display panel itself to be in approximately the same position as regards height and width, the back of the screen was now some 0.93 metres forward of the flank wall. Viewed from the side, therefore, the sequence would be: the flank wall; an open space of 0.43 metres; the steel girder supporting the hoarding which had the dimension from the side of 0.5 metres; and then forward of that would be the 0.4 metres occupied by the display hoarding itself that was exactly the same as previously. Thus, whereas it is said that the old screen occupied up to 0.7 metres of air space, the present one occupied some 1.33 metres of space. In front of the screen again was a gantry. Although it was a new one, it had the same material dimensions as the old one.

[12]The fact that the advertising panel had moved forward away from the flank wall would be apparent to a passer-by looking in on the scene or using the pavement alongside Battersea Park Road and looking up over the playground wall. The close-up view would be limited by the fact that the playground was bounded by a brick wall of approximately 3 metres with a wire mesh of a further metre or so on top of that. The court has been provided with photographs of what would now be seen by a passer-by moving along Battersea Park Road and also someone looking into the playground from an entrance to the playground, and also photographs within the school looking directly at the new structure.

[13]The third and perhaps the most significant feature of the changes made to the supporting structure is the presence of the two substantial upright steel girders 6 metres in height supporting the panel and gantry. They were approximately 4.5 metres apart. Between them are two diagonal supporting bars that add solidity to the structure and that appear to join the girders at the top and then move diagonally to the bottom of the opposing steel girder. I say "appear", because in the photographs the actual junction at the bottom is presently obscured by a screen to which I shall shortly turn.

[14]The gantry is attached to the supporting structure of the two steel girders by means of two large supporting brackets. All this superstructure is visible from front-on in the playground and, as indicated, to someone passing at a sufficient distance and angle from the playground wall to be able to see the upper part of it.

[15]Finally, the bottom part of the supporting structure has been screened off using what appears to be a hardboard fence to a height of some 3 metres and extending some 7 and a half metres along parallel to the rear wall of the playground. That structure has been painted to reproduce the lower part of the painted mural that used to be on the brick wall (or perhaps still is on the brick wall) and so blending with the uppers parts of the painted mural.

[16]The claimant points out in respect of this screening that it was not put up for advertising purpose, but that was a decision of the school responding to the arrival of the structure in their playground. When the case began, there was no evidence as to when and why the screening was set up, but on 20 January an e-mail of that same date was received in evidence indicating that the school had asked the claimants to construct the screening as it needed storage space. It appears that the school has not used the screened-off area as storage space to date. Indeed, it appears from the e-mail that no door has yet been cut into the enclosed-off area, that area being some 9 square metres. The defendant invites me to be cautious about the weight to be attached to this new piece of evidence as the space is not, and in its present form cannot be, used for storage until a door is cut. Moreover, whatever the future storage use to which the school might put the space, if it remains, I conclude that the arrival of two very substantial steel girders and cross-beams reaching down to ground level would have presented some health and safety hazard to children who use the playground, unless screened-off or otherwise dealt with in some appropriate way. In argument it was pointed out that the girders could be padded, but there also would be a need to prevent the cross-beams being a tripping hazard.

[17]I nevertheless accept, first, that the screening supplied by the school is in place, and there is no reason to believe that the structure as presently constituted in the playground is a danger to children as they do not come into contact with it. I accept, moreover, that this was an arrangement amenable to the school for which they received valuable consideration, and one they could terminate on reasonable notice. It is not one that they are stuck with forever, and as indicated there is a considerable financial advantage to the school if they can accommodate the claimant's advertisements within their land, and are the sole beneficiary of any licensing arrangements.

[18]Having sought to describe the essential facts before and after the changes, there are two essential issues in this case. First, have the changes led to a new site being used for advertising, or is it the same site as was the case before the changes that is being used? The second question is, if it is the same site, have there been material changes in extent or use? The reason why those two questions arise will become apparent when the court refers to the regulations that apply.

[19]There is a preliminary point raised by the claimant as to how the dispute came about. A brief reference to the history of the correspondence reveals as follows. In April 2007 the defendant wrote to the claimants indicating its view that the new arrangements were unlawful and they required removal. On 9 May the claimant claimed that they were not unlawful because there were deemed consent for them. In response to further requests from the defendant, the claimant set out its case on 6 June relating to the two licences to which reference has been made. On 8 June the defendant Council in a short letter indicated that whilst it noted the enclosures and various documents relating to the use of the flank wall of 151 Battersea Park Road to display adverts, in respect of 149- "you have failed to provide evidence to support your assertion that this site benefits from deemed advertisement consent."

[20]There were further exchanges before the claimants turned to their solicitors, and the outcome was on 23 July a letter from those solicitors complaining of the defendant's approach to the evidence that had been submitted and themselves making the following observation:

"The only difference between the previous state of affairs and the current state of affairs is that the current structure is sited in the ground of 149 Battersea Park Road whereas the previous one was suspended above it. The Council appears unwilling to have any regard to that fact, choosing instead simply to assert that there exists no evidence for the basic and obvious proposition that the structure has always been on 149 Battersea Park Road."

Within that letter, in my judgment, there appears to be the essential dispute on the first issue, namely whether a structure which is suspended above land is to be regarded as a structure on land.

[21]In the case of Maiden Outdoor Advertising, to which reference has already been made, Collins J castigated the approach of the Council to enforcement. He pointed out that they appeared to require the advertiser to prove the facts giving rise to deemed consent beyond reasonable doubt by affidavit evidence and from independent sources apparently untainted by the fact that they were the advertisers. He observed that all three requirements were errors and not a proper application of the regulations. But I do not accept that the Council made similar errors in the present case. They took the view that the new arrangements were unlawful. They considered the submission of evidence made to them, but maintained the view and indicated by 8 June that the reason for that view was that the previous arrangements related entirely to the flank wall of 151. Perhaps their reasoning was tight and condensed and was only unpacked in response to the claimant's solicitor's letter, but in my judgment the essential points were there to see in the earlier letter. Following that exchange, these proceedings were launched in August 2007.

[22]To decide the two questions, it is now necessary to set out the statutory regime, which I do as follows. In section 55(5) of the Town and Country Planning Act, there is a reference to "advertisement" in the context of planning consent and the concept of development. The sub-section reads as follows:

"(5) Without prejudice to any regulations made under the provisions of this Act relating to the control of advertisements, the use for the display of advertisements of any external part of a building which is not normally used for that purpose shall be treated for the purposes of this section as involving a material change in the use of that part of the building."

[23]One then moves to section 220(1) of that Act. Under the heading "Regulations controlling display of advertisements", it is provided:

"(1) Regulations under this Act shall make provision for restricting or regulating the display of advertisements so far as appears to the Secretary of State to be expedient in the interests of amenity or public safety."

[24]Pausing at this moment, although there is a nexus between planning control generally and the regulations, I accept the claimant's submissions that the regulations are a self-contained code for the control of advertisements, and apart from the fact that section 55(5) contemplates that the first use of an external wall for advertising is a change of use, and that, in context, an external wall is capable of being a site, which is a concept found in the regulations, no further steer is provided to the court in the interpretation of the regulations.

[25]I now then turn to the regulations themselves. They are the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 as previously indicated. First, in Regulation 2 there are the interpretation provisions. In the interpretation provisions "deemed consent" means consent granted by Regulation 6. "Site" means any land or building other than an advertisement on which an advertisement is displayed. Regulation 6 provides:

"(1) Subject to regulations 7 and 8, and in the case of an area of special control also to regulation 21, consent is granted for the display of an advertisement of any class specified in Part 1 of Schedule 3, subject to— (a) the standard conditions; and (b) in the case of any class other than Class 12, the conditions and limitations specified in that Part in relation to that class."

[26]By this route, the curious reader is directed then to Schedule 3 of the regulations in which the various classes of advertisement for which deemed consent is granted are set out. Class 13 is the class in issue in the present case. The heading is "Advertisements on sites used for preceding ten years for display of advertisements without express consent". Alongside the sub-heading, Class 13 is identified as- "An advertisement displayed on a site that has been used continually for the preceding ten years for the display of advertisements without express consent."

[27]Beneath that, under the sub-heading "Conditions and limitations", 13(1) provides:

"An advertisement does not fall within this description if, during the relevant 10-year period, there has been either a material increase in the extent to which the site has been used for the display of advertisements or a material alteration in the manner in which it has been so used."

It thus appears that issue 1 deals with whether the site falls within the description of Class 13, and issue 2 is whether, on the facts in the present case, there has been a material increase either in extent or material alteration in the manner in which the site has been used for displaying of advertisements.

[28]For completeness, cross-reference can be made to the 1992 Regulations, which have been the subject of some observation in some of the case law. Class 13 of the 1992 Regulations is in the following terms:

"Description 13. An advertisement displayed on a site which was used for the display of advertisements without express consent on 1st April 1974 and has been so used continually since that date. Conditions and Limitations 13(1) No substantial increase in the extent, or substantial alteration in the manner, of the use of the site for the display of advertisements on 1st April 1974 is permitted."

Certainly for the purposes of the first issue, the changes in wording and the duration of the deemed consent do not appear to be significant.

[29]There is also a definition of "advertisement" itself, but that is contained not in the regulations but in section 336 of the Town and Country Planning Act 1990- "'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 adapted for use, for the display of advertisements, and references to the display of advertisements shall be construed accordingly ..."

[30]That definition, in my judgment, is sufficiently broad to ensure that the structure that supports the display panel is to be regarded as part of the overall mechanism for the display of an advertisement, and it therefore can colloquially be described as part of the advertisement itself.

[31]As indicated, there is some case law dealing with the same subject matter, although mostly concerned with the predecessor regulations to those that the court is now considering. Four propositions appear to this court to emerge from the deciding cases. First, what constitutes a site for the purpose of Class 13 of the regulations is a question of fact for the Tribunal of fact and not a term of art precisely defined by law. Depending upon the facts, a Tribunal may be entitled to conclude that the site that has been used in the past was limited to the space actually occupied by the particular advertisement or panel: see Scotts Restaurant Plc v City of Westminster [1993] JPL B34, a decision of the Divisional Court of 4 December 1992 that was approved and followed in London Borough of Barking v Mills and Allen

[1997] 3 PLR 1

[32]Second, the extent of the site that is used for the purposes of advertising is not confined to the particular poster or hoarding or similar, but may extend to the whole of any premises dedicated to the use of advertising. That is a proposition that emerges from the decision in Mills and Allen just quoted.

[33]Third, the interpretation of whether Class 13 and the conditions for deemed consent have been met should have regard to the purposes for which the regulations are promoted, as set out in section 220, namely the protection of amenity and safety: see the judgment of the Divisional Court in Wandsworth Borough Council v the South Western Magistrates' Court and Clear Channel UK Limited

[2007] EWHC 1079 (Admin)

. In his judgment, Sullivan J at paragraph 26 said as follows. "26. It is not in dispute that the Regulations control the display of advertisements only "in the interests of amenity or public safety": see section 220(1) of the Act and Regulation 4(1)(a) of the Regulations. The question whether there has been a "substantial alteration" must be considered within that context. However, it does not follow that a Magistrates' Court, in deciding whether or not there has been a "substantial alteration" in the manner of the use of the site for the display of advertisements, should attempt to decide whether the alteration has or has not had an adverse effect on amenity or public safety. It is sufficient that the alteration is capable of having such an effect. An alteration in the manner of the use of the site for the display of advertisements may still, in ordinary language, be described as "substantial" even if its effects are beneficial in terms of amenity or public safety. Views may legitimately differ as to whether a particular alteration to the manner in which a site is being used for the display of advertisements is harmful or beneficial to amenity or public safety." I observe therefore that that guidance is directed to the second issue of alteration and is less relevant to the first issue, the definition of site.

[34]The fourth proposition is that it is plain from the decision in the case of London Borough of Barking v Mills and Allen, to which reference has already been made, that depending upon the factual context, it could be said at least that a site that is used for advertising may extend to the flank wall of an adjoining property and still form part of a single site.

[35]With that legal background, I turn to the consideration of the issues. Issue 1: the question of site

[36]The claimant, in the light of all the evidence describing the degree of alteration before and after January 2007, poses the rhetorical question: how can it fail to be the same site where the screen used for the display is the same, it is at the same height and in the same position with respect to the end wall of 151 as it was before, but it has been merely brought forward about a metre? It is submitted that, to the general public, the impact of the display is the same, and the advance of the structure supporting the hoarding into the playground is immaterial and has little impact on the environment. The claimant places strong reliance in support of the submission that the court should conclude that there has been no change of site on the decision of the Divisional Court in the London Borough of Barking v Mills and Allen case. It is appropriate to quote passages of that case to see how far they support the claimant's arguments in the present case.

[37]The Barking case, as I shall call it, was a prosecutor's appeal from a decision of justices dismissing the information for an offence of breach of the regulations relating to display of advertisements. The facts found by the magistrates that were before the court by way of case stated included the fact that the advertiser had purchased a parcel of land immediately adjacent to a property known as 14 Tanner Street for the purpose of displaying advertisements. Two hoardings had been used, each with a display of a 48 sheet advertisement at that location since at least 1970. One of the hoardings was attached to the external wall of 14 Tanner Street, which formed the south boundary of the parcel of the land. The second advertisement was attached by means of metal supports to a fence which formed the boundary of the land. It certainly appears that the external wall of 14 Tanner Street, although forming a boundary to the land, was not land owned by the advertiser.

[38]The justices came to the conclusion that the word "site" should be interpreted as meaning the parcel of land upon which advertisements are displayed, rather than the specific position within that parcel: see page 4(5) of the extract. It appears that the justices had not been referred to the Scotts Restaurant case and had, in part, reached their conclusions by reference to other regulations in the case that the court considered immaterial. There then follows this quotation:

"Mr David Lambing for the appellant authority argues that had the justices addressed the issue correctly they would have found that there were two sites respectively: (a) the land adjoining 14 Tanner Street, which was purchased by the respondents; and (b) the flank wall of 14 Tanner Street itself. For my part, I would reject that contention. Such a case was not argued below and, in my judgment, there is no sufficient factual foundation for it. Of course the respondents needed permission from the owners of 14 Tanner Street to affix their hoarding, but it does not follow that the hoarding and the advertisement itself was not properly to be regarded as being within their own adjoining land. In these circumstances it seems to me highly likely that, even had the justices been given the assistance they needed and in the result directed themselves in accordance with Scotts Restaurant, they would have reached the self-same conclusion, namely that as a matter of fact the relevant site referred to the whole of the adjoining premises. After all they were also to conclude that the overall change did not involve '... a substantial alteration in the manner of the use of the site ...' and the two conclusions, to my mind, are in a real sense harmonious. In these circumstances I see no good reason why the justices' conclusion upon the matter should be labelled 'incorrect'."

[39]In dealing with the second issue, the court continued disagreeing again with the submissions of the appellant prosecutor:

"Once the site is recognised to be the whole parcel of land upon which these various advertisements, old and new, stood (as for the purposes of resolving the second issue it must be), then it seems to me that the justices' conclusions at paras 6 and 7 amply justify their factual finding on the second issue. They had, after all, visited the site in order to make themselves fully aware of its appearance."

I should have added that the judgment in that case was given by Simon Brown LJ (as he then was).

[40]The defendants, however, point out that that is an authority dealing with a particular appeal by a prosecutor from a particular set of findings based upon a particular set of considerations, including how the case was put to the justices below. In my judgment, apart from the proposition identified earlier in this judgment as proposition 4, little further guidance can be obtained from the Barking case for the reasons submitted by the defendants. It was a case in which the finding that there was a single site was based upon the fact that the land was acquired by the advertiser for the purpose of advertising generally, and clearly was using its own land as well as the adjoining wall for that purpose. That of course is a contrast, or may be a contrast, with the situation in the present case where there was only one advertisement, and the question is whether the overhanging by the advertisement of the land is to be regarded as use of that land for advertising purposes.

[41]The defendant further submits that what is a site has to be capable of certainty, and the focus of the regulations is on the history of use of the site. It is submitted that, as a matter of commonsense, in the present case the site that was used for the display of advertisement was the flank wall of 151 Battersea Park Road, to which the display was attached. As already indicated, although not decisive of it, he submits that the licence agreements are informative as to what the parties thought they were agreeing to by way of use of their respective premises. One licence was for the use of the site as an attachment of the advertisement, and the other was to get access to it to service it.

[42]The defendant submits that no part of the playground was being used for the display of the advertisement in question. The claimant submits that, in fact, on proper analysis, before the 2007 changes, there was one site that extended from both the flank wall to the playground. It makes no difference that there were two owners of the properties in question. Further, it is submitted it makes no difference that there was only one advertisement hoarding being displayed. In truth, the claimant's case depends entirely on the proposition that intrusion into the air space of the playground is use of that space for advertising. The claimant in support of that submission stresses that the law of trespass treats exclusion from air space and the surface of the land the same. Conclusions: issue 1

[43]I accept that that last submission may be true, but reach the conclusion that that is not the question to be decided in the present case. By reference to the definition section in the regulations, "site" means land or building. A playground in this context is not a building, and in my judgment, in the context of the advertisement regulations, the land of the playground is not being used for the display of advertisements merely because advertisements overhang the land to the marginal extent described earlier some 6 to 9 metres up.

[44]Moreover, the fact that the owner of the land is willing for the advertiser to access his land in order to service it does not mean that the land being used for access is being used for a display. The Barking case provides no assistance to the claimant in this case because of the material differences between the facts under consideration by the Divisional Court and the present case. There the land was clearly being used for the purpose of advertisement displays before and after the changes. Where the advertiser used the land and the adjoining wall as a single site for display, the movement of the display from the wall to another part of the site did not result in a change of site, and the justices were entitled to conclude in that case that the whole of the land adjoining the flank wall was already being used for advertising display.

[45]By contrast, in the present case, to move the display from the flank wall to the land of the playground is, in my judgment, a relevant and critical distinction. The distance of the movement may not be great, but the significance of the movement is not judged merely by the distance, but by the loss of any connection with the former site on the flank wall and the acquisition for the first time of a physical connection with the land of the playground by the erection of the structure that supports the hoarding for the display of advertising.

[46]Looking at the matter as a whole, in the light of the guidance obtained from the regulation, I therefore conclude that this was not the same site in the terms of Class 13. In my judgment, the playground was not being used for the display of an advertisement in 2006; it was being used to access such a display, and its owners merely permitted the advertisement on the flank wall to overhang its air space. The display had no physical connection with 149. That conclusion is decisive against the application of the deemed consent under Class 13. But in case I am wrong on that conclusion, I go on to consider the second issue, which is material variation. Conclusions: issue 2

[47]The claimant submits that the practical effects of the changes described earlier in this judgment are minimal. It is a marginal loss of playground space, if you were to take the screened-off area of 9 metres as a loss by contrast to a space of 1,200 square metres. It is a marginal physical advance into the territory of the playground. It has a marginal impact on amenity as set out in the regulations. Further, because of the screening, no issue as to safety arises.

[48]The defendant's case was put primarily on amenity, and I am reminded that in the Oxford English Dictionary "amenity" in its modern use and frequently in the context of planning is said to be "applied to the more human and pleasurable environmental aspects of a house, factory, town etc as distinguished from the features of the house itself". It is "a particularly advantageous or convenient feature of this kind". I accept that one is considering the impact of the new arrangements upon the environmental aspects and the use and visual appearance of the structures.

[49]I accept that if one focused entirely upon the display panel itself, there would be very considerable strength in the claimant's submissions because it is the same display panel displayed in more or less the same place, and simply advancing a metre forward has very little impact on the amenity by itself. But when regard is to be had to the supporting infrastructure, the task before the court can be seen to raise more difficult issues. The supporting infrastructure means that a lot more space has been given over to the advertisement than before. The court has a somewhat difficult task of making a comparison upon impact based upon limited photographs as to what the previous position was, and indeed the only photograph available to the court is taken from one angle from directly down the playground, whereas the defendant has placed emphasis upon photographs of the side angle from the street, which cannot be precisely reproduced, although the claimants have helpfully provided a photograph of a similar structure from the side in a different location.

[50]However, looking at the photographic material that has been provided to me, in my judgment bringing the structure forward and the considerable additional steel work required to support the hoarding free from the wall are all capable of having an impact on the visual amenity of the area. It is difficult to make the assessment where the most obvious thing is the display panel itself which has not changed, but in my judgment the defendant is right that the concerned passer-by would be entitled to observe, and possibly to be unhappy, that more space is being devoted to this display than was previously the case, and below the actual display panel itself are the somewhat intrusive steel supports described earlier in this judgment.

[51]I recognise that decisions about material increase and material alteration should not be concerned with such minor amendments as to prevent the advertising industry using sites to the best modern standards, and some capacity for adaption without exceeding the limits of Class 13 must be permitted, but I do conclude that, even if the site was the same, the limits here have been exceeded.

[52]The claimant's argument on the first issue depended upon the use of the air space being a sufficient form of use to be a site. If, contrary to the ruling I have just made on that issue, those submissions are right, then, in my judgment, building a structure downwards to make contact with the ground must be an alteration to the way that the site is used. Installing the steel in the playground is, in my judgment, a material alteration, not merely from the visual impact on the passer-by, but also the loss of some play space and at least the need for some measures to address the potential collision between children and the steel girders that now intrude into the playground.

[53]I therefore find for the defendant on the second issue as well. The volume of space occupied by the supporting superstructure and its capacity for affecting amenity, both visual and to some extent in terms of use of the playground, make it a material alteration in the manner of the display and the material increase in the extent of the display. For those reasons, again, this site falls out with deemed consent. Conclusions

[54]It seems that, in the light of the wording of new Regulation 13, there can be no return to the status quo as of right, and there would have to be an application for planning permission that is clearly not for this court to determine. As things stand, therefore, the school stands to lose the licence fee and the claimants to lose the use of the site that it had been using up until 2007, where its hoarding has long been displayed. It seems therefore that those in the position of the claimants who are proposing to make amendments to the site need to be very careful and think through the consequences of any changes before making them, and that might involve consultation with the relevant local authority. But for reasons I have endeavoured to give, this application for judicial review is dismissed.

[55]MR LANGHAM: My Lord, there are a number of consequential orders that we require. Firstly, if I can ask for an order dismissing the application. So far as costs are concerned, although the case was always listed for two days, we had entertained the hope of finishing in one day and therefore had prepared a schedule.

[56]MR JUSTICE BLAKE: I am sorry if I have extended the case by asking questions and spending an hour to deliver judgment. Do you want me to assess costs?

[57]MR BULEY: My Lord, I was going to invite your Lordship to leave it to detailed assessment. I do not question the principle, but we do say detailed assessment. It is quite a lot of money.

MR JUSTICE BLAKE: But costs in principle?

[59]MR BULEY: Yes.

[60]MR LANGHAM: I am not going to --

MR JUSTICE BLAKE: Detailed assessment, I suspect, certainly at 10 past 4.

[62]MR BULEY: My Lord, I think my learned friend may have another matter he wants to raise, but since I am on my feet I do have an application for permission to appeal. I will make it shortly. Your Lordship is familiar, no doubt, with the relevant parts of CPR 52, real prospect of success or other compelling reason. My Lord, there are two issues in the case: obviously, first of all, the site issue; and secondly, the assessment of material change. In relation to the site issue -- in relation to both points, my Lord, I do say that there is a real prospect of success, and this was a case which, I suspect, was relatively finely balanced in your Lordship's mind. Your Lordship will know that better than us. I do not want to recite the arguments. However, also in terms of the site issue, my Lord, there is, in my submission, a compelling reason for granting permission to appeal: the Court of Appeal has not considered this issue previously, but in particular, my Lord, as your Lordship put it in your Lordship's judgment, the issue turned in a sense on my submission of whether or not the intrusion into the air space, something which physically occupies the air space of the school's property, was something that could amount to use of that air space. That, my Lord, is a point of principle which can affect other cases, in my submission. In those circumstances, I say both that there is a real prospect of success and another compelling reason.

[63]On the other issue, my Lord, very finely balanced I suggest, and it is possible the Court of Appeal would reach a different view.

[64]MR JUSTICE BLAKE: I am going to refuse the application. You will have to go to the Court of Appeal to get permission.

[65]MR BULEY: I am grateful.

[66]MR LANGHAM: The point that I need to raise relates to the existence of an injunction at page 21 of the bundle restraining us from interfering --

MR JUSTICE BLAKE: Yes.

[68]MR LANGHAM: Plainly I apply for that to be discharged. It does not in fact discharge itself automatically as far as I can make out.

MR JUSTICE BLAKE: You had to get an injunction?

[70]MR LANGHAM: Yes, I was not involved at that stage, but I am told that the injunction was granted shortly after the Council had given the requisite undertaking voluntarily.

[71]MR JUSTICE BLAKE: Well, I have said that the claimant will have to go to the Court of Appeal to get permission to appeal, and they may well want to because I recognise that there is no Court of Appeal authority upon it. Therefore, it seems to me that the injunction can be discharged, but I do not think they should be at risk of summary trespass tomorrow morning.

[72]MR LANGHAM: No, certainly, my Lord.

MR JUSTICE BLAKE: Are the two of you able to identify 21 days or something of that sort?

[74]MR BULEY: Yes, I wanted to say something about that. I do not want to interrupt my learned friend.

[75]MR LANGHAM: My point is this: I am not going to be arguing that the Council should be entitled, until any appeal procedures are completed, to enter the land. My point is this: there is a cross-undertaking in damages, and at the time that the injunction is finally discharged, I will be asking, or do now ask, for an inquiry into the damages which the Council has suffered, and I make the application because I am instructed that at the time there were some preparatory works done in expectation of the removal of the hoarding. It was only securing --

[76]MR JUSTICE BLAKE: Okay, what are you seeking? First, discharge; second, an order that unless this judgment is reversed, the matter for inquiry into damages be remitted to the Master or something like that?

[77]MR LANGHAM: Yes, something like that.

[78]MR BULEY: My Lord, subject to any appeal, I cannot resist that there be an inquiry. We reserve our position as to whether damages were caused, but I do not need to say that to your Lordship. If your Lordship expresses it in the terms that it would be subject to any grant of permission to appeal --

[79]MR JUSTICE BLAKE: Yes, I am trying to think out loud, and obviously I am thinking out loud in the middle of your submissions, which is not very helpful, but at the moment I am thinking: discharge the injunction upon terms that the defendant does not seek to enforce the order whilst the claimant makes an application for permission to appeal, and pending any order that you will then have to get from the Court of Appeal, but I am holding the fort until you get to the Court of Appeal -- or 21 days.

[80]MR BULEY: Yes, there is a couple of things in that, none of them are, I hope, terribly difficult. I was going to ask your Lordship first of all whether you would consider -- as your Lordship knows it is always more preferrable to have a transcript of the judgment before one decides finally whether to appeal. I do not know whether your Lordship would be content to order expedition.

MR JUSTICE BLAKE: Yes, I can order expedition of the transcript.

[82]MR BULEY: My Lord, in those circumstances the time limit for an appeal either 21 days or such other order as the court directs. Would your Lordship be prepared to order, say, 14 days from receipt of the expedited transcript?

[83]MR JUSTICE BLAKE: I think you can probably formulate your grounds. I am conscious that I cannot trespass upon the Council's undertaking forever. You have had two years on this, and I think there probably needs to be -- I am going to say you have 21 days to lodge a notice of appeal, and I hope you get something before then, and you might, and if you do not, you will have to apply to someone -- or if you cannot agree. But I think during that time, if you are prepared to give an undertaking not to enforce for that time, or until such further order, I think that is a balance.

[84]MR BULEY: I follow that entirely, my Lord. Can I just clarify one point to make sure I have it clear? What I would invite your Lordship to do would be -- the undertaking would be 21 days, or if an appeal is made, such time as the Court of Appeal makes any order on the application for permission. Otherwise we need to ask the Court of Appeal to expedite consideration of permission, and that is not the easiest thing in the world to do.

[85]MR JUSTICE BLAKE: It does not make much sense if you have an appeal after 21 days for suddenly then not to be able to argue your appeal. Do you have any observations upon that?

[86]MR LANGHAM: No. There certainly is a desire to avoid the need to go before any court.

[87]MR JUSTICE BLAKE: So 21 days for you to decide and then you will reflect and maybe decide you do not want to do it.

[88]MR BULEY: If we do not pursue it, that is an end of the matter.

[89]MR JUSTICE BLAKE: And after 21 days the undertaking to continue whilst the application for permission is being considered by the Court of Appeal. I think there is a requirement that you have to pursue that expeditiously.

[90]MR BULEY: Of course, we have no choice. We have to put it within 21 days.

[91]MR JUSTICE BLAKE: Quite, and ask for the Court of Appeal to look at it. I am conscious that it has taken nearly two years for this case to come before this court.

[92]MR LANGHAM: There is one technical point I think I need to raise. I would need to take instructions as to whether I can give an undertaking or whether your Lordship needs to make an order. I am entirely content with the import, but I may not have authority.

MR JUSTICE BLAKE: Do that, but I thought you were being given authority.

[94]MR LANGHAM: I am being given the nod.

MR JUSTICE BLAKE: Right, now, have we sorted everything out?

[96]MR BULEY: That is everything.

[97]MR LANGHAM: Are we going to have to draft the order?

[98]MR BULEY: We need to know one way or the other.

[99]MR JUSTICE BLAKE: It would probably be helpful if you did. I am probably not going to be able to give much more attention to it tonight for various reasons, but I will be around.

[100]MR BULEY: I am very grateful, my Lord.