Clear Channel UK Ltd v London Borough of Hammersmith & Fulham [2009] EWHC 465 (Admin)

Case No CO/5887/2008[2009] EWHC 465 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 27th February 2009
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE IRWIN
Between
CLEAR CHANNEL UK LIMITEDClaimantv
Between
LONDON BOROUGH OF HAMMERSMITH AND FULHAMDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Andrew Fraser-Urquhart (instructed by Grant Saw Solicitors) (David Loveday attended for judgment) appeared on behalf of the ClaimantRobin Green (instructed by London Borough of Hammersmith and Fulham) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE IRWIN: This case concerns a site which has been used since at least 1966 for the display of advertisements. The advertisements are erected on land adjacent to the flank wall of a building at 112-114 Fulham Palace Road.[2]In around 1991 the static display, which had previously appeared at the site — static in the sense of a single paper advertisement fixed to a hoarding and replaced from time to time — was supplemented by the erection, higher up on the hoarding, of an illuminated Ultravision display (that is a brand name or technical term), that is to say a display in which the image presented to the public is made up by a series of vertical triangular panels, each face of which displays part of the advertisement. The panels rotate together periodically, with the effect that the Ultravision hoarding displayed a total of three advertisements, each on display for a short period of time before the device rotated to reveal the next advertisement.[3]In around September 1998, the Ultravision display was replaced by an illuminated scrolling display. Thus, from around that time the upper of the two panels consisted of a series of advertisements contained on a single loop of material, scrolling from time to time so that a series of advertisements were displayed. Each of these two displays were approximately 18 square metres. In 2002 the displays were replaced by a single, externally illuminated, static display, known as a "Golden Square", a term of art. This display provided the same area of display as the two pre-existing displays, around 36 square metres in total. That display — the Golden Square — was in place as at 6th April 2007.[4]The position changed again in April 2008. A new structure was built. It was freestanding, although it is said by the defendant that the previous structures were all freestanding. That appears to me to be right. The new structure was around 9 metres high, 7 metres wide and about 0.5 metres deep. It was angled away from the wall. Its position is shown in photographs and in a DVD, which have been before the court.[5]The nature of the display has also changed. From September 1991 the display totalled 36 square metres. The new display from 2008 is a single digital display, illuminated from within, displaying a new advertisement every 7½ seconds, but comprising 18 square metres of display. So although the structure is higher and taller than the previous structure, the actual area of display is about half the square metreage of the previous incarnation. The statement from Julian Renselar, team leader of the planning enforcement team of the defendant, puts the matter this way:
"9... The internally illuminated digital screen is at the top of the structure at first floor level and measures approximately 3 metres by 6 metres. The digital display changes approximately every 7 seconds. There are currently eight different advertisement displays being shown sequentially... 10. As the digital advert comprised digital sequential displays, was wider, deeper and higher than that previously displayed and was internally lit, I concluded that this was a material change from how the site had previously been used (as a static, externally lit printed canvas display) that had enjoyed deemed consent under Class 13 of the 1992 Regulations, and therefore the new advertisement did not benefit from deemed consent under Class 13, Part I of Schedule 3 to the 2007 Regulations..."
[6]The defendant wrote to the claimant, the owner of the structure, on 3rd April 2008, stating that the structure being erected did not have deemed consent according to the decision that had been reached by Mr Renselar under Class 13, Part I of Schedule 3 to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (SI 2007/783) ("the 2007 Regulations"). After some further correspondence, on 23rd May 2008 the defendant issued a notice under section 11 of the London Local Authorities Act 1995 ("the Act"), requiring the claimant to remove the unauthorised advertisement within 21 days.[7]The statutory notice requires the recipient to make a case as to any claimed deemed consent to the display, which is said to fall within the Regulations. The claimant proceeded to do so, the defendant disagreed, the matter could not be resolved and thus, on 11th June 2008, the claimant issued a claim for judicial review of the section 11 notice. An acknowledgment of service was lodged on 17th June, and on the same day Sullivan J granted permission for judicial review and stayed the section 11 notice pending determination of these proceedings, partly on the ground that "the argument as to the effect of the new limitations on the deemed consent in Class 13 of the 2007 Regulations raises issues that are potentially of much wider significance than the particular facts of this case".[8]The material part of the 1995 Act reads as follows (section 11):
"(1)This section applies to a hoarding... used... for the display of advertisements... other than such a structure for which deemed... consent has been granted under the... [the 2007 Regulations]. (2)Where there is in their area a hoarding... to which this section applies, a participating council may serve notice under this section on any person who appears to them to be responsible for the erection or maintenance thereof... (3)A notice under this section shall require the removal of the hoarding... to which it relates within a period, being not less than 21 days after the date of the notice..."
It is agreed there is no express consent in relation to this hoarding. The legality of the section 11 notice and any subsequent enforcement turns on whether this display has deemed consent or on the exercise of discretion in issuing that notice.[9]The earlier regulations providing for deemed consent were the Town and Country Planning (Control of Advertisements) Regulations 1992 (SI 1992/666) ("the 1992 Regulations"). There has been a change of wording upon which some of the reasoning in this case turns and I will return to that. However, it is simplest to begin with the detail of the 2007 Regulations, the relevant passages of which read as follows:
"6.—(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 I of Schedule 3, subject to— (a) the standard conditions; and (b) ... the conditions and limitations specified in that Part in relation to that class."
Then in Schedule 3, Class 13, the Regulations provide, under the rubric, "Advertisements on sites used for preceding 10 years for display of advertisements without express consent" and then "Description":
"13.An advertisement displayed on a site that has been used continually for the preceding 10 years for the display of advertisements without express consent."
Then are set out conditions and limitations as follows: 13.—(1) 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. ... (3) Illumination is not permitted unless— (a) the advertisement is displayed with illumination on 6th April 2007; or (b) the advertisement is first displayed after that date, and the advertisement most recently displayed was illuminated. (4) An advertisement that— (a) comprises sequential displays; or (b) otherwise includes moving parts or features; or (c) ... is not permitted unless— (i) it is displayed on 6th April 2007 and falls within the description specified in any of subparagraphs (a) to (c); or (ii)it is first displayed after that date, and the advertisement most recently displayed fell within any such description."[10]As I have recited, the decision in this case was based on the proposition that there was a "material alteration in the manner in which the site has been used". It is also argued that the advertisement here, by which is meant the display not the content of the display, comprises a sequential display within paragraph 13(4)(a) and is not a permitted sequential display. That is said to be so because, although this advertisement was first displayed after 6th April 2007, the previous display (that is to say the display on site before the construction work in April 2008) did not fall within any of the descriptions in paragraph 13(4). Thus, it is said that this advertising display is not permitted.[11]I pause to note that the construction of Class 13(4)(ii) and the meaning of the phrase "the advertisement most recently displayed" is made more difficult by its clumsy expression. The meaning, in my judgement, must be interpreted to be "the advertisement most recently previously displayed", because otherwise the phrase is redundant. I accept that argument from Mr Green, who represents the defendant, in answer to a question from me. Thus, the two key propositions which are made by this defendant in response to the challenge to the decision are that, firstly, there has been a material alteration in the manner in which the site has been used and, secondly, that this advertisement is a sequential display, first displayed after 1st April 2007, but with a predecessor which was a fixed display with fixed illumination not fulfilling any of the relevant descriptions in paragraph 13(4), and thus is not permitted.[12]Has there been a material alteration? In considering that question, one must first consider: material to what? It is agreed that the answer to that is "material to amenity and public safety", since it is to those ends that local planning authority exercises its powers under the Regulations (see Regulation 3). Two other points are agreed. Firstly, this is a question of primary fact to be decided as such by the court: see R (Clear Channel UK Limited v London Borough of Southwark [2006] EWHC 3325 (Admin). I agree with the reasoning of His Honour Judge Gilbart QC, sitting in that case as a Deputy High Court Judge, as do the parties. Secondly, I do not have the responsibility of deciding that the alterations, if material, actually had or have an adverse effect on amenity or public safety. The test is whether the alteration is capable of having such an effect, if it is material: see the decision of Sullivan J (as he then was) in Wandsworth Borough Council v South Western Magistrates' Court and Clear Channel UK Limited [2007] EWHC 1079 (Admin) at paragraphs 26 and 27.[13]The defendant says that the alterations are indeed material, consistent with the decision taken last year. In essence, they ask the court to take a number of things together. They say that this is a different structure with a different look. Instead of a hoarding, we have a structure that gives the appearance of an enormous flat screen television. It has greater bulk, it is taller, it projects somewhat farther forward and is at a somewhat lesser angle to the main road which passes it. The illumination is different: it is not static, it is illuminated from within and, as the DVD clips demonstrate, there is an impact, says the defendant, of that different nature of illumination and of the fact that it keeps changing.[14]The claimant's case can be summarised as follows. These changes are trivial: a few feet here or there in dimensions. This was a large advertising hoarding which was already brightly lit. It must be seen in the context of a very busy arterial road in South West London.[15]Specifically, it is said that the DVD evidence is not good enough: it is insufficient as an evidential basis for judging the changing illumination accurately, there are no scientific measures of the degree of illumination or its intensity, and the video recording process is very different from the effect of the illumination on the naked eye. It is also said that the impact of the lighting is to be compared with the brake lights of vehicles and lights in shop windows, which were easily visible on the DVDs.[16]The claimant also says that the court can and should look at the historic attitude of the Council to the successive changes here. There was no intervention from the Council on the basis that there had been a material change causing the deemed consent to cease when the two displays became one, or when one fixed display became a moving display with triangular rollers, or when the two became one enormous Golden Square display in the 1990s, and that the court should take cognisance of the fact that if those changes were not material, then this change is not material. It is not suggested that the planning authority is in some way bound by any suggested inconsistency in regarding one change as material as opposed to the other. Rather, it is said that that is part and parcel of the evidence which can be brought to bear on whether this change is a material change.[17]The claimant also referred me, in the course of evidence, to guidance from the relevant Government department, which has been incorporated into the report of the case of R (Maiden Outdoor Advertising Limited) v London Borough of Lambeth [2003] EWHC 1224 (Admin) at paragraphs 78 and 79. This was a decision of Collins J. In the course of his judgment at paragraph 78, he said:
"It is to be noted that the Department of the Environment, Transport and the Regions issued a document in 1999 headed 'Modernising Planning Outdoor Advertisement Control Consultation Paper'..."
A little later on, in paragraph 79, and in relation to the paper introduced,

the judge said this:

"Going back to [paragraph] 4.25.7, [the guidance] continues: '... but, as a general proposition, the replacement of a static non-illuminated board lawfully displayed by virtue of Class 13 with a non-illuminated "
Primavision" or "Ultravision" (trionic advertisements) display, is capable of being within the scope of the deemed consent provisions provided that conditions (1) and (2) are met. The Department's reason for taking this view is that regular change of advertisements displayed by these units is directly comparable to the frequent change of posters displayed on static boards: so there is no material change. The introduction of illumination, however, will usually mean that the new display cannot benefit from Clause 13'."[18]I find that guidance of some assistance, but of course it is not binding in any sense. All are agreed that one cannot make direct comparison between different factual cases, jumping from example to example. Each judgment must be taken on the specific facts which arise in that case and it is only the principles or approach in each case which are of assistance.[19]I deal first with the adequacy of evidence and with the point raised by the claimant in relation to that. In my judgement, there is enough evidence before this court to reach a proper decision on the factual issues with which I am faced: I have photographic images of a sequence of these different configurations of structure and display through time, I have a plan of the current structure, and I have seen the six DVD clips showing the display in question, both by day and by night. I do not have scientific measurements of the volume or intensity or output, in terms of light, from the display, nor do I have moving images (DVDs or film) of previous displays, although I have seen still photographs. However, it seems to me that there is enough material to make a perfectly adequate judgement.[20]I do find that the alteration of this structure is material so that it is capable of affecting amenity in the area. I do so on two mutually consistent and supportive bases. Firstly, the size, bulk and position, and the "nature of the object", if I can use that term, make this structure markedly more obtrusive in the area, reasonably capable of representing a material change in the amenity value to the immediate vicinity. Secondly, the nature of the illumination and display itself — the changing light — sometimes meaning that an 18-square-metre screen is extremely bright, casting light on to other buildings, and sometimes suddenly dark, or partly dark, represents a strikingly new illumination. This is capable of affecting amenity in the way that a fixed light from a shopfront, or the fixed light on to the previous hoarding, it seems to me, does not. The position of the illuminated screen is deliberately very high and it casts light high up on to the surrounding area, where residential property may be likely to be in question.[21]In relation to both of these conclusions as to the materiality of the alteration, I have considered the question by testing it in this way: if permission for express consent was applied for, it seems to me clear that perfectly rational people could lodge objections to the effect on amenity of this structure. We are not in the position of an application for express consent and I am not intending to pre-judge any such application, if that is what ever transpires. But it seems to me that it is plain that a rational person with an interest in the amenity of the area could say this affects amenity to a considerable degree.[22]If I am wrong on that point, then I would also find that this is a sequential display. That is a separate question from the materiality of the change, as the departmental guidance implies by necessary implication.[23]Here we look at definitions of sequential and, rather endearingly, both sides have gone to the Concise Oxford Dictionary, although in two different editions. Beginning with the 1982 edition, "sequential" is something "forming a sequence or consequence or sequela". "Sequence" is then defined as "(order of) succession, coming after or next, set of things that belong next to each other on some principle of order, series without gaps". The primary definitions in the 1995 Concise Oxford Dictionary read as follows: in relation to "sequential", "forming a sequence, consequence, or sequela" and then, in relation to sequence, the definition reads, "1 succession, coming after or next, 2 order of succession (shall follow a sequence of events; give the facts in historical sequence), 3 a set of things belonging next to one another on some principle of order; a series without gaps". I have read sufficient of the dictionary definitions.[24]Undoubtedly the terms "sequential" or "derived from a sequence" involves some principle of order, and that underpins both the earlier and later definitions. But, for example, one speaks commonly of a sequence of traffic lights. There is no connection between the content of the colours in a sequence of traffic lights, but they follow in an order, they are therefore a sequence. One can also speak of the much more complex sequence of DNA. In that case one is dealing with extremely complex information, where the content of each rung on the double helix of DNA may be widely different, with widely different effects and almost no common content, but we still speak of the sequence of DNA.[25]Even if we were here dealing with seven separate advertisements digitally displayed, each for 7 seconds, but with their orders of appearance randomised so that there was no fixed pattern, 1 followed by 2, et cetera, each would still have a pre-determined share of time, because otherwise the purchasers of the advertisement would not be guaranteed the exposure they seek. Overall, it seems to me, even a randomised order of display would probably satisfy the definition of "sequential", because they would be the same advertisements, each appearing for the same length of time, and each for a pre-determined amount over the course of a fixed period, such as a day or a week. I would tend, even in those circumstances, to find that a sequence was involved.[26]However, in the instant case we do not need to go that far in pursuing the meaning of the term. Here these seven advertisements follow each other in the same sequence, for the same length of time, and simply rotate, while the display has the content unchanged. I therefore find that this is indeed a sequential display within Class 13, paragraph 4(ii), and is thus not permitted, following the reasoning I have set out above.[27]The claimant's second argument relates to the discretion exercised by the defendant in relation to the issue of the notice. It is said that the issue of the notice is a discretionary matter and to be exercised rationally, considering all proper public law considerations. I do not take that starting proposition to be in issue. The section 11 notice is indeed a draconian procedure, because there is no appeal, by way of contrast with a notice of discontinuance under Regulation 8 of the 2007 Regulations. That point is agreed. The claimant says that the local authority should have required the claimant, if they took the view that this was a material alteration, to restore or revert to the status quo ante, whereupon deemed consent would arise again, itself restored by the restoration of the structure to its previous state.[28]That brings us to consider the question as to whether restoration or reversion of the structure can feasibly bring in its train the re-arising of a deemed consent. In a parallel decision of Collins J under the 1992 Regulations, this was indeed held to be possible. This is again the case of Maiden v Lambeth (supra). On this point I quote from the judgment of Collins J at paragraph 93 as follows:
"One must bear in mind that a person responsible for an advertisement hoarding may well reasonably believe that he is not going outside his deemed consent by, for example, introducing a form of illumination. The Department itself, in the consultation paper to which I have referred, recognised that there was a doubt about the matter and I have no reason to believe that the claimants have acted otherwise than reasonably. Indeed as, we know, no one has suggested that [they] were doing anything wrong for some 13 years before Lambeth suddenly wrote to them telling them that they were. In those circumstances, I have no hesitation in accepting the construction that Mr Holgate places upon this. That being so, it seems to me that, when considering whether they should exercise their discretion to take action under section 11, the authority should first require the removal of the offending matter — in this case, the illumination — and certainly should have regard in any event, in considering whether to use section 11, to the fact that it would be possible to remove the illumination, or whatever the offending matter was, and thus revive the deemed consent. I say that because, as I have indicated, section 11 is an all or nothing and will mean the removal in its entirety of the advertisement hoarding."
[29]That approach in relation to the older regulations, was approved by Sir John Chadwick in the Court of Appeal in R (Clear Channel) v London Borough of Southwark [2007] EWCA Civ 1328. The relevant part of his judgment, with which the other Lord Justices agreed, is set out at paragraphs 25-32. I do not intend to read all of that, but it is helpful to quote the concluding part of that section of the judgment, beginning within paragraph 32 as follows:
"So there could be no deemed consent under regulation 6 in a case where, at the time when the question fell to be considered [emphasis added], the use of the site for the display of advertisements (or hoardings) was substantially different in extent (if greater) or manner from the use on 1st April 1974: limitation (1) to Class 13. If, however, the question whether there was deemed consent for a hoarding fell to be considered in the future — at a time when (following the removal of the offending hoardings and their replacement by others) the use of the site for the display of hoardings was no longer substantially different from the use on 1st April 1974 — there would be no reason why the deemed consent given, prima facie, by regulation 6 should be denied by the operation of limitation (1): that limitation would have no application in the changed circumstances."
[30]So the claimant says that in this instance a proper exercise of discretion should have included considering the question of reversion and the re-arising of the deemed consent. The defendants should, initially at least, have required the claimant to restore the status quo ante, reserving, no doubt, the capacity to issue a section 11 notice if restoration did not take place. The defendant counters that argument by saying that on the wording of the new regulations, reversions do not arise. That is because the material wording of the regulations has changed.[31]Let us begin with the wording of the 1992 Regulations. Class 13 in Schedule 3 to the 1992 Regulations reads as follows:
"Class 13 Sites used for the display of advertisements on 1st April 1974 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 [emphasis added] permitted. (2) If any building or structure on which such an advertisement is displayed is required by or under any enactment to be removed, no erection of any building or structure to continue the display is [emphasis added] permitted."
[32]We have seen already the wording in the 2007 Regulations reads differently, to the effect that "there has been [emphasis added] a material increase" in the previous 10 years, in which case deemed consent is lost. It seems to me that the key argument here, developed by Mr Green for the defendant, is that you cannot change the past by restoring the structure. The consideration under the new regulations is whether there has been a material alteration, not whether there is one at the moment of scrutiny. This reading of the new regulations seems to me consistent with the view taken by Blake J in the case of JCDecaux UK Limited v Wandsworth Borough Council [2009] EWHC 129 (Admin). He was considering the same regulations which are in question here. At paragraph 54 of the judgment he said this:
"It seems that, in the light of the wording of [the] new Regulation 13 [that should read Class 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."
[33]It seems to me that that reading of the 2007 Regulations is correct. One cannot change history. Deemed consent is lost when these regulations are in question, if historically there has been a material alteration. I am not to be understood to be saying that no rational local planning authority could offer a party who had lost deemed consent the opportunity to restore an advertising hoarding or display to the status quo ante, although that perhaps would amount legally to, or could only best be seen in the context of, an express consent being granted to the previous display. But I see nothing wrong in a local planning authority not offering restoration. Since the language of the regulations has changed, where deemed consent has been lost, it cannot, in law, be restored. It follows that the application for judicial review is dismissed. The decision stands.[34]MR GREEN: My Lord, in that event, I seek the defendant's costs. I would ask that they be summarily assessed. My learned friend has a schedule. I do not know if I a schedule has made its way to your Lordship.[35]MR JUSTICE IRWIN: I think it did. Give me a moment to find it. I know you are not Mr Fraser-Urquhart.[36]MR LOVEDAY: My Lord is correct. Mr Fraser-Urquhart unfortunately cannot be here today.[37]MR JUSTICE IRWIN: Yes, he explained that. What is your name?[38]MR LOVEDAY: My name is Mr Loveday.

MR JUSTICE IRWIN: Loveday?

[40]MR LOVEDAY: Yes.[41]MR JUSTICE IRWIN: I do not think I do, Mr Green. I have the claimant's statement of costs, but I do not think I have [any] for you.[42]MR GREEN: I have a schedule here but, my Lord, it was produced on the basis of the hearing yesterday only, so it will require some updating.

MR JUSTICE IRWIN: Yes.

[44]MR GREEN: My Lord, may I just take instructions, because it may be because further information will be needed, it will not be possible for me to give your Lordship a figure today. It would be difficult.

MR JUSTICE IRWIN: Of course, take instructions.

[46]MR GREEN: (Pause). My Lord, having asked for a summary assessment, I now withdraw that request and simply ask for a detailed assessment of the defendant's costs.[47]MR LOVEDAY: My Lord, I have no objection.

MR JUSTICE IRWIN: You have no objection to that? I so

[49]MR GREEN: I am obliged.

MR JUSTICE IRWIN: You are not asking for any interim payment?

[51]MR GREEN: My Lord, no. The only other matter is that the injunction granted by Sullivan J should be discharged, if that requires any formal order. I do not know.

MR JUSTICE IRWIN: Let me hear Mr Loveday on that.

[53]MR LOVEDAY: My Lord, before you reach that stage, I am instructed to ask your Lordship's permission to appeal in respect of all of the issues in this case. Obviously, we have considered, very thoroughly, the issues and we are familiar with the tests. On any view, there is a compelling reason why an appeal should be heard -- in the public interest. Your Lordship's determination of this case has considerable implications going beyond the facts of this case.[54]MR JUSTICE IRWIN: There is no evidence before me about that. Can you help about that, because I see that in the course of giving permission, as indeed I have incorporated in the judgment, that Sullivan J made an observation along those lines, but I have no idea how big the implications are.[55]MR LOVEDAY: The first (?) implication, as your Lordship yourself recognised, is the draconian nature of your findings.

MR JUSTICE IRWIN: Yes, but how often is this going to arise, that is really the point.

[57]MR LOVEDAY: I will take instructions on that. (Pause). My Lord, I am instructed that the advertising industry, as a whole, is following this case with interest and there are proceedings which have been issued in which this will be a live matter.[58]MR JUSTICE IRWIN: Perhaps, but on what scale, that is really what I was trying to get a sense of, because if this is something that comes up occasionally, that is one thing; if this is widespread, then that is different.[59]MR LOVEDAY: Clear Channel themselves have thousands of hoardings around the country, and JCDecaux — there are other companies as well — each of them, and each of those particular hoardings, will be necessarily be affected by this case, certainly what the companies can do in respect of those hoardings in the future. In my submission, clearly there are significant implications on each of those sites. In any event, my Lord, in my submission there is a realistic prospect that the Court of Appeal may take a different view from your Lordship on each of the issues that have been raised, in particular in relation to the first issue, which is the materiality of change.[60]I would draw attention to Mr Fraser-Urquhart's point about the local authority's failure to issue a notice in response to any changes in the previous years — there may be an issue on that for the Court of Appeal. There has never been any litigation, so far as we are aware, on the meaning of "sequential display". Again, the Court of Appeal may accept the interpretation advanced by Mr Fraser-Urquhart.[61]As to the right to revert, there is no clear indication that it was the intention of the draftsmen to bring about the change which your Lordship has determined has been brought about. The result of your Lordship's finding is that rights to revert, which this court, and the Court of Appeal, held previously exist, no longer survive that legislation.

MR JUSTICE IRWIN: I think "a right" puts it a bit too strongly.

[63]MR LOVEDAY: Yes, the materiality of reversion.[64]MR JUSTICE IRWIN: There is a possibility of reversion, and that has gone, on my reading of the regulations.[65]MR LOVEDAY: In any case, and for all those reasons, there are draconian and, in my submission, significant implications. There are also realistic prospects of the Court of Appeal finding differently to your Lordship.[66]MR JUSTICE IRWIN: Yes, thank you. Do you want to be heard on that?[67]MR GREEN: I would simply say that your Lordship is plainly right on the facts and the law.[68]MR JUSTICE IRWIN: No, I do not think I am going to give permission to appeal, but, Mr Loveday, what I will certainly do is listen to an application to continue the injunction until such point as permission to appeal is granted or refused.[69]MR LOVEDAY: Yes, my Lord.[70]MR JUSTICE IRWIN: Because clearly it would be wrong to pre-empt any appeal for which permission may be given by the Court of Appeal themselves.[71]MR LOVEDAY: Yes, my Lord. May I very briefly take instructions?

MR JUSTICE IRWIN: Yes, of course.

[73]MR LOVEDAY: I am instructed that my clients are definitely going to seek permission to appeal in writing. Beyond that, I would submit that it is necessarily implicit in the order that has already been given that it should be an order suspending the notice until final determination of this claim. I would invite your Lordship to clarify that that is the effect of the existing order, but if my learned friend is not in a position to give an undertaking that his clients are happy to accept that, then I would invite your Lordship to make a specific order.[74]MR JUSTICE IRWIN: I do not think it matters whether there is an undertaking not to put the order into effect until the question of appeal is determined, or whether I continue the existing order. It does not make any difference.[75]MR LOVEDAY: It does not make any difference.

MR JUSTICE IRWIN: No.

[77]MR GREEN: That does raise the possibility I floated at the end of my skeleton argument, as to what terms should be required of the claimant if such an order is to be made, whether a cross-undertaking, not necessarily in damages, but a cross-undertaking to account for profits made in the period that the order has effect should be given. At the end of my skeleton argument, at page 12, paragraphs 24-25, I attempted to interest your Lordship in giving some future guidance.[78]MR JUSTICE IRWIN: Yes. As you know, I declined your kind invitation to do that. Mr Loveday, could there be a difficulty in your clients accounting for profit made during the continuation? I am not going to order that you pay it over, but in case there is a remedy along those lines, if we are going to keep you in the position you are until either permission is refused or the appeal is dealt with, in the event that eventually such a remedy could be pursued, there cannot be much difficulty in accounting for the profit.[79]MR LOVEDAY: Your Lordship is asking about practical difficulties?

MR JUSTICE IRWIN: That is right, yes.

[81]MR LOVEDAY: I will take instructions. (Pause). My Lord, I have been given very candid instructions that the person who could give a firm indication on that front is not here. My clients assume that there would not be a practical difficulty in calculating any amount they may --[82]MR JUSTICE IRWIN: There must be profit centres within the company, some sort of rental stream or whatever. I am sure that that kind of thing is capable of calculation.[83]MR LOVEDAY: Certainly my instructions are that my clients who are present assume that to be the case. Beyond any practical difficulties, I would simply submit that it is an extraordinary proposition for the local authority not only to seek to avoid harm by virtue of its property, but to profit from it.[84]MR JUSTICE IRWIN: I agree with you on that, Mr Loveday, but I do not want to have the argument today. What I want to be assured of is that if, at some stage, Mr Green persuades someone that his clients are entitled to take your profit, we will be able to calculate what it is. I think the assurance is sufficient, and I am not going to require you to undertake to furnish any accounts, as long as we are clear that it can be calculated. The position is that I refuse permission to appeal, but I will continue to suspend the notice — I think the simplest thing is to continue the existing order as to suspension of the notice — until permission to appeal is granted or refused, but I think there should be a longstop, Mr Loveday. We do not want there be an open-ended process because you drag your feet getting to an appeal. Do you want to consider what the longstop should be, whether it should be simply permission to apply, as the defendant could do, or do you want to set a date?[85]MR GREEN: My Lord, once it is before the Court of Appeal, the Court of Appeal can decide for itself whether the stay should continue. So, in my submission, it should be grant or refusal on paper, and with the application for permission to appeal can be included an application for continuation of the stay until the matter is finally determined by the Court of Appeal.

MR JUSTICE IRWIN: Yes, that is probably the simplest thing.

[87]MR LOVEDAY: Yes, my Lord.

MR JUSTICE IRWIN: So, until grant or refusal of permission to appeal on paper.

[89]MR GREEN: My Lord, yes.

MR JUSTICE IRWIN: Further suspension to be for the Court of Appeal, if they grant permission.

order

defendant's costs to be assessed if not agreed.

Cited in 1 later judgment