The Borough Council of Calderdale v The Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Timothy Mould |
| Judgment Date | 22 March 2021 |
| Neutral Citation | [2021] EWHC 695 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2208/2020 |
| Date | 22 March 2021 |
[2021] EWHC 695 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Timothy Mould QC (sitting as a Deputy High Court Judge)
Case No: CO/2208/2020
and
Sarah Reid (instructed by Head of Legal and Democratic Services) for the Claimant
Heather Sargent (instructed by Government Legal Department) for the Defendant
The Interested Party did not appear and was not represented.
Hearing date: 12 November 2020
Approved Judgment
Timothy Mould QC:
The Claim
By a decision letter dated 12 May 2020 [“the DL”], an inspector appointed by the Defendant allowed an appeal by the Interested Party and granted consent to upgrade an existing advertisement display at Traveller's Rest, 99 Huddersfield Road, Elland, Calderdale [“the appeal site”].
By this claim, the Claimant challenges the validity of the inspector's decision pursuant to section 288 of the Town and Country Planning Act 1990 [“the 1990 Act”]. On 31 July 2020 Lang J granted permission on the papers for the claim to proceed.
The Claimant raises three grounds of challenge to the inspector's decision –
(1) The inspector failed to have regard to a material consideration, namely the need to impose highways safety conditions on the grant of advertisement consent.
(2) The inspector failed to give legally adequate reasons for granting advertisement consent without imposing the necessary highway safety conditions.
(3) The inspector acted unfairly in failing to allow the Claimant an opportunity to make further representations prior to his decision to grant advertisement consent without imposing highway safety conditions, in circumstances in which the need for such conditions had been asserted by the Claimant on the advice of the local highway authority and accepted by the Interested Party.
The factual background
On 11 October 2019, the Interested Party applied to the Claimant for express consent under regulation 9 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 [“the 2007 Regulations”] to display an advertisement at the appeal site in the following terms –
“Upgrade of existing 48 sheet advert to support digital poster”.
The Interested Party applied for consent for the advertisement for a period of 5 years.
On 11 October 2019 the Interested Party's agents also wrote to the Claimant in support of the application for express consent. They described the proposal as being to “repost” the existing display at the appeal site with a “D-poster” which would display multiple, static advertisements on rotation. The agent suggested the imposition of conditions to control operation of the digital poster, including the following conditions which were proposed as both “industry standard” and “now commonly imposed on applications of this type” –
“Static images to be displayed only (no moving or flashing images).
Changes between adverts to take place instantly with no sequencing, fading, swiping or merging of images.
Maximum level of night time illuminance to be set to 300cd/m2 in accordance with ILP guidelines.
Advertisements to change no more frequently than once every ten seconds”.
The Interested Party's agents concluded their letter of 11 October 2019 in the following terms –
“The proposal will not change the size, position or orientation of the advert. As such the established acceptability of the advertisement should not change materially. The proposed conditions to control the luminance of the screens and the operation of the digital screens will ensure that there is no additional harm to amenity or road safety”.
Following receipt of the application for express consent, the Claimant consulted and received the following advice from the local highway authority –
“The proposed digital advertisement is located adjacent to a busy exit from a food store. There is evidence that digital advertisements results [sic] in an increase in the number and length of glances by passing drivers compared with traditional billboard type advertisements.
However, it is considered that an objection would be difficult to sustain.
In order to minimise the highway safety risks a number of conditions are required; to control the intensity of illumination, to avoid any moving or apparently moving images, to control the frequency of advertisement changes and to ensure that changes occur quickly”.
In order to achieve those required controls in the interests of highway safety, the highways officer suggested the terms of conditions to be imposed by the Claimant on a grant of express consent.
The Claimant's environmental health officer also recommended the imposition of conditions on a grant of express consent to control both the intensity of illumination of the advertisement display and to prohibit flashing or intermittent lighting.
On 13 December 2019, acting under delegated powers the Claimant's planning officer refused express consent. The single reason for refusal stated in the decision notice was that the proposed digital poster display, by reason of internal illumination would form an intrusive feature to the detriment of the residential amenity of neighbouring occupiers, and would accordingly be contrary to paragraph 132 of the National Planning Policy Framework [“the Framework”].
In the delegated report, under the heading “Public Safety/Highways”, the Claimant's planning officer recorded the absence of objection from the highway authority on highway safety grounds, subject to the imposition of certain conditions.
The Interested Party exercised its right of appeal to the Defendant. Paragraph 2.1 of the Interested Party's Grounds of Appeal (February 2020) drew attention to the highway authority's consultation response to the application for express consent. A copy of that consultation response was provided as Appendix 2 of the Interested Party's Grounds of Appeal. Paragraphs 4.3, 4.4 and 4.5 of the Grounds of Appeal stated –
“4.3 The advertisement will be digital and will have a maximum luminance that does not exceed 300 cd/sqm at night time. The maximum brightness will always be within the guidelines as set by the Institute of Lighting Professionals (ILP) Technical Note 5 and will be controlled by light sensors to vary the brightness of the screens according to the brightness of the day. During the daytime, the maximum brightness may increase in order to make the screen visible during bright sunlight. This will ensure that the level of luminance of the advertisements is sensitive to the change in daylight from sunrise to sunset and from summer to winter.
4.4 Only static images (i.e. no moving images or flashing lights) will be displayed, but the advertisements will be capable of changing to display new adverts every ten seconds depending on how the advertising space is sold. This is in line with industry standard units of advertising space for sale, and in compliance with the outdoor media code. The changeover between adverts will take place instantly in order to minimise the potential for driver distraction. This derives from advice received from road safety specialists in line with industry and planning standards.
Operational Conditions
4.5 The applicant accepts the standard conditions for advertising and in addition proposes the following standard operational conditions to control the operation of the digital display:
• Static images to be displayed only (no moving or flashing images);
• Changes between adverts to take place instantly with no sequencing fading, swiping or merging of images;
• Maximum level of night time illuminance to be set to 300cd/m2;
• Advertisements to change no more frequently than once every ten seconds”.
Given the Claimant's single stated reason for refusing the application for express consent, in section 6 of its Grounds of Appeal headed “Planning Considerations” the Interested Party understandably focused upon the issue of the impact of operation of the proposed digital display poster on the living conditions of neighbouring residential occupiers. Paragraph 6.1 of the Grounds of Appeal stated that the proposed advertisement would not impact on highways safety, a point that was repeated in paragraph 7.1 which concluded –
“7.1 In accordance with the NPPF, advertisements should only be controlled where they are harmful to amenity or public safety. These Grounds of Appeal have demonstrated that the Appeal Scheme does not harm amenity or public safety”.
Insofar as public safety was concerned, that conclusion was plainly to be read as drawing upon the proposed controls on operation of the digital display to which the Interested Party had referred in paragraphs 4.3 to 4.5 of the Grounds of Appeal.
The Claimant submitted its appeal questionnaire on 2 April 2020. The questionnaire indicated, correctly, that “public safety” involving highway or traffic considerations was not one of the Claimant's grounds of refusal of express consent. In response to the question “Do you consider that any condition other than the five standard conditions set out in Schedule 2 to the 2007 Regulations should be imposed in the event that express consent as applied for is granted?”, the Claimant answered “Yes”. The Claimant did not submit the terms of its proposed additional conditions. Nor did the Claimant respond to that question with an explanation of the need for additional conditions. The Claimant did provide a copy of the Planning Officer's delegated report with the completed appeal questionnaire. The Claimant did not submit a separate statement of case in response to the Interested Party's appeal.
There being no objection by either of the parties, the...
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