Addison Lee Ltd v Westminster City Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE AIKENS,MR JUSTICE MADDISON |
| Judgment Date | 12 January 2012 |
| Neutral Citation | [2012] EWHC 152 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 January 2012 |
| Docket Number | CO/6445/2011 |
[2012] EWHC 152 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Aikens
Mr Justice Maddison
CO/6445/2011
Mr R Taylor (instructed by Forsters LLP) appeared on behalf of the Claimant
Mr P Sharkey (instructed by Westminster City Council) appeared on behalf of the Defendant
(As Approved)
This is an appeal by way of Case Stated from a decision of District Judge Caroline Tubbs following the conviction of the appellant (whom I shall call Addison Lee) on 3 March 2011 on 21 charges in an information that had been laid concerning advertisements on cigarette bins on the walls of buildings at various sites within the City of Westminster. Addison Lee is a well-known company that provides minicab and vehicle rental services. Judge Tubbs found that the advertisements were unauthorised and contrary to section 224(3) of the Town and Country Planning Act 1990, which I will call the "TCPA". The judge was asked to state a case for the opinion of the High Court and she did so on 23 June 2011.
Before the District Judge there was also an another defendant, which is a subsidiary company of Addison Lee, called Adbins Limited: "Adbins". That company was convicted of 19 similar charges but there is, we are told, no appeal by Adbins.
The facts as stated in the case are as follows: the metal cigarette bins were affixed to the outside of various buildings within Westminster. The bins are cheap to manufacture and cheap to put up on walls of buildings and no charge is made to the premises to which the bins are attached. The bins are intended to be used by smokers who need somewhere to put their cigarette stubs. It is, in fact, an offence to drop a cigarette stub on the ground: see section 87 of the Environmental Protection Act 1980. The offence is punishable by a fixed penalty notice. In Westminster, the website of the council says that punishment will take the form of an on-the-spot fine of £80. Use of the cigarette bins therefore means that the pavement area outside the premises where the bins are placed will be cleaner and tidier.
It is accepted that there were advertisements on the outside of the bins. They take the form: "Sponsored by Addison Lee PLC. Booking number 0844 800 6000". The Addison Lee advertisement is printed on A4-type paper and displayed behind a clear front and can easily be removed and replaced. Website details are also printed directly onto the metal bin, with the legend "www.ukadbins.co.uk".
Before the judge there was no dispute that the cigarette bins were designed so that they could display advertisements and that the bins were being employed, amongst other things, for the purpose of advertisement of Addison Lee. It was accepted before this court that both sets of writing on the bins came within the definition of "advertisement" set out at section 336 of the TCPA, which is the interpretation section of that Act.
District Judge Tubbs found in particular that:
"(i) Addison Lee did display the advertisements as specified in the charges against them;
(ii) The occupiers of the relevant business premises were aware of the bins attached to their premises and there was no evidence that they objected to them being there;
(iii) The bins were provided free of charge and kept the area immediately adjacent to the premises free of smokers detritus."
It is common ground that none of the premises where the bins were placed were themselves concerned with the business of either Addison Lee or Adbins.
The question of law for the opinion of the High Court as stated by the judge is in the following terms:
"Can the supply and fixing of cigarette bins to business premises be held to be part of the otherwise unrelated range of goods and/or services supplied by those business premises thus allowing the supply of the cigarette bins lawfully to advertise upon them within the provisions of Class 5, Schedule 3 of the Town and Country Planning (Control of Advertisements)(England) Regulations 2007."
I should set out the provisions of parts of section 220, and also section 224(3) of the TCPA, which appear under the general heading of Advertisements and Advertisement Regulations, which heading is just before section 220 of that Act. Section 220(1) provides:
"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."
Paragraph (b) of section 220(2) states:
"[The regulations may provide] for requiring the consent of the local planning authority to be obtained for the display of advertisement, or of advertisements of any class specified in the regulations."
Section 224(3) provides:
"Without prejudice to any provisions included in such regulations by virtue of subsection ( 1) or (2), if any person displays an advertisement in contravention of the regulations he shall be guilty of an offence and liable on summary conviction to a fine of such amount as may be prescribed, not exceeding [level 4] on the standard scale and in the case of a continuing offence, one tenth of level 4 on the standard scale for each day during which the offence continues after conviction."
Subsection (4)(b) of the same section provides:
"Without prejudice to the generality of subsection~(3), a person shall be deemed to display an advertisement for the purposes of that subsection if—
(b)the advertisement gives publicity to his goods, trade, business or other concerns."
The Town and Country Planning (Control of Advertisements) (England) Regulations 2007, which are made pursuant to section 220 and other sections of the TCPA, have two relevant regulations. The first of those is Regulation 4, which sets out the general requirement that no advertisement may be displayed unless consent for its display has been granted either by the local planning authority or the Secretary of State on application on that behalf, or if the matter falls within Regulation 6, which deals with deemed consent.
Regulation 6, which is headed "Deemed consent for the display of advertisements" stipulates that there will be "deemed consent" to the display of advertisements in certain identified classes set out in Part 1 of Schedule 3 of the regulations. This "deemed consent" is subject to Regulations 7 and 8, and is also subject to various "standard conditions" which do not matter for present purposes. It is accepted that Regulations 7 and 8 are not relevant in this case.
Schedule 3 of the 2007 Regulations is headed "Classes of advertisements for which deemed consent is granted". The only relevant one for present purposes is Class 5. Class 5 is headed "Other advertisements on business premises". The Class is defined in the following terms:
"Any advertisement which does not fall within Class 4A or 4B displayed on business premises wholly with reference to any or all of the following: the business carried on, the goods sold or services provided, or the name or qualifications of the person carrying on the business, or supplying the goods or services, on those premises." (The judge's emphasis).
Various conditions and Limitations to the display of advertisements which come within Class 5 are then set out in that Schedule, but I need not set those out here.
Before the judge, various arguments were raised concerning the legality of the advertisements on these cigarette bins. This appeal is concerned only with one of those arguments. This is: do advertisements specified in the charges have "deemed consent" by coming within Class 5 of Schedule 3 of the 2007 Regulations. The judge held that none of the advertisements...
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