Build Hollywood Ltd v Hackney London Borough Council

Town and country planning – Removal notice – Advertisements – Respondent local authority issuing removal notice in relation to three advertising hoardings protruding over road at rear of property – District judge upholding notice on basis that appellant failed to show licence to construct hoardings from highway authority – Appellant appealing – Whether highway authority being “person with an interest” in site entitled to grant licence – Appeal dismissed The respondent local authority issued the appellant with a removal notice pursuant to section 225A of the Town and Country Planning Act 1990 requiring the removal, within four months, of various advertisements and their associated fixtures and fittings from a property known as The Tram Depot, 38-40 Upper Clapton Road, London E5. The respondent alleged that the low-level advertisements contravened the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 as the appellant had failed to show that they benefitted from deemed consent, as there was no express consent. The district judge held that the low-level advertisements did not have deemed consent because (even if they would otherwise have had deemed consent under class 13 of schedule 3 to the 2007 Regulations) they contravened the “standard conditions” referred to in regulation 6 of the 2007 Regulations, specifically condition 1 which stated: “No advertisement is to be displayed without the permission of the owner of the site or any other person with an interest in the site entitled to grant permission”. The district judge found that the highways authority at that location (TfL) was “the owner of the site or any other person with an interest in the site entitled to grant permission” and the appellant had not shown that it had the permission of TfL under section 177 of the Highways Act 1980 to display an advertisement which protruded over the pavement. The evidence showed that at the time of the removal notice there was no section 177 licence. The burden was on the appellant to show there was permission at that time; it was not for the respondent to disprove it. The appellant appealed. Held: The appeal was dismissed. (1) The word “site” was defined in regulation 2 of the 2007 Regulations as “any land or building, other than an advertisement, on which an advertisement was displayed”. What constituted “the site” was a question of fact. The fact that a building was suspended in air over land with which it had no physical connection might mean that the building was not part of the site together with the land over which it hung. It did not follow that lack of physical connection would necessarily mean that, for example, a building suspended mere centimetres above the land, in the path of any person seeking to walk across that land, could not be regarded as part of the same site as the land. The appellant was right to say that the “site” for the purposes of condition 1 was the property (or part of it), including the low-level advertisements attached to it but did not encompass the road. TfL was not the owner of any part of the site. The real issue was whether it was a person with an interest in the site within the meaning of standard condition 1. (2) The permission with which standard condition 1 was concerned was permission to display an advertisement on the site. However, that encompassed a person who had the power to grant or refuse permission to use the site in that way, even if, were that person to give permission, some further permission to display an advertisement would still be required. The appellant’s proposition that even if TfL had the power to grant a section 177 licence in respect of the low-level advertisements, and to impose terms and conditions, that would not constitute an entitlement to grant permission for the purposes of standard condition 1 was misconceived. If the section 177 power applied, then TfL would have the power to grant (or refuse) a licence (which was a form of permission) to construct, alter or use the low-level advertisements, and to impose terms and conditions, including in respect of their removal. Standard condition 1 was obviously intended to encompass a person who had such a power. (3) A person only contravened section 177 if they: (i) constructed a building over any part of a highway maintainable at the public expense without a licence; (ii) altered such a building without a licence; (iii) altered such a building otherwise than in accordance with the terms of a licence; or (iv) used such a building in respect of which a licence had been granted otherwise than in accordance with the terms of the licence. As no licence had been granted, (iii) and (iv) were inapplicable. The key question was whether TfL had a power to grant a licence in respect of the low-level advertisements. If it did, and the appellant failed to obtain a licence (or otherwise obtain permission from TfL), the low-level advertisements were displayed in contravention of standard condition 1. Following the service of the notice, the appellant in fact applied for a section 177 licence. On the appellant’s case, TfL had no power to grant it. For the appellant’s submission to succeed, TfL’s power under section 177 to licence, and impose terms and conditions on, the use of a building constructed over any part of a highway maintainable at the public expense, would have to be construed as falling away if ownership of a constructed building passed to a person who made no alteration to it. (4) The effect of section 177(7) was that TfL had the power to serve a notice on the owner of the building (here, the low-level advertisements) requiring its demolition or alteration. Having regard to the purpose of the provision and reading it in context, it was clear that TfL also had a continuing power to grant a licence (subject to terms and conditions) in respect of a building over a highway maintainable at public expense constructed without a licence. On the evidence, the road was in fact duly recorded as a highway maintainable at public expense. It was clear that TfL had the power to grant a licence, and impose terms and conditions, in respect of the display of the low-level advertisements. Accordingly, TfL was a “person with an interest” within standard condition 1. As the appellant had failed to show that it had a section 177 licence, or any other permission to display the advertisements, it had breached standard condition 1. Charles Merrett (instructed by Albertson Solicitors Ltd) appeared for the appellant; Edmund Robb (instructed by Hackney London Borough Council) appeared for the respondent. Eileen O’Grady, barrister Click here to read a transcript of Build Hollywood Ltd v Hackney London Borough Council