The King on the application of Whiteside v London Borough of Croydon
| Jurisdiction | England & Wales |
| Judge | Sir Ross Cranston |
| Judgment Date | 17 July 2023 |
| Neutral Citation | [2023] EWHC 1806 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/383/2023 |
and
[2023] EWHC 1806 (Admin)
Sir Ross Cranston
sitting as a High Court Judge
Case No: CO/383/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Fry (instructed by HOLMES & HILLS) for the Claimant
Matthew Henderson (instructed by Croydon LBC) for the Defendant
Hearing dates: 12 July 2023
Approved Judgment
Introduction
The claimant challenges the decision of the London Borough of Croydon, which I will call ‘the Council’ in this judgment, which granted consent for advertising as part of a new bus shelter outside his home in a suburban street in South Croydon, London. He says that the decision appears to be part of a broader project of replacing older bus shelters in his area which formerly displayed back-illuminated, double-sided poster advertising. The replacement bus shelters will have two-sided digitally illuminated advertising. Consequently, the claimant contends that there are broader implications of this judgment than for just this one bus stop.
The Council contends that there is no basis to the three grounds the claimant advances, a failure to consider the local development plan, a failure to conduct specific assessment of the impact of the consent for this specific site, and a failure to consult him and other neighbours. It also submits that permission should be refused because of the claimant's significant delay in making the claim.
The challenge comes to this court following an order of Lang J on 12 May 2023 that there be a rolled-up hearing, and as a result the permission and the substantive stages have been considered alongside each other.
Background
The background to the Council's decision as regards advertising and the bus shelter outside the claimant's home was that the Council's contract with its previous advertising partner was coming to an end. The interested party, Valo Smart City UK Ltd, proposed the installation of digital liquid crystal displays (“LCD”) at the 158 existing advertising sites in the borough — 110 bus shelters, 42 dual sided, freestanding rectangular poster advertisements, and six, large freestanding columns. The previous advertising at these sites was paper based.
Pre-application report
Given the scale of the programme, the interested party sought pre-application advice from the Council's officers. This was reported to the Council's planning committee on 25 March 2021.
In the pre-application report, the committee was told that it was being informed of this “to enable Members to view it at pre application stage and to comment upon it. The development does not constitute an application for planning permission and any comments made upon it are provisional, and subject to full consideration of any subsequent applications, including any comments received as a result of consultation, publicity and notification”: 2.1. The committee was also told that the report represented a snapshot in time, with negotiations and dialogue on-going; that the plans and information provided were indicative only; and that other issues might arise as more detail was provided and the depth of analysis expanded upon.
The committee was then informed that replacement bus shelters did not require planning permission since they benefitted from permitted development rights in Schedule 2, Part 12, Class A (b) of the Town and Country Planning (General Permitted Development) (England) Order 2015, but that the proposed digital advertisements on the bus shelters and freestanding advertisements did need advertising consent for each of the 158 sites: 2.3. The project was time critical: 3.3. A high level breakdown of the sites showed that 40 of the 158 sites were in suburban areas and 21 within conservation areas: 4.3.
In relation to the principle of the proposed advertisements, the pre-application report said:
“6.4 The scheme does not result in the loss of bus shelters as they are being replaced in the same (or very similar locations). Advertising is being proposed in the same locations, albeit there is a change from paper based adverts to digital adverts. Officers consider that there would be no material change of use proposed and therefore, the proposed scheme is acceptable in principle, subject to detailed design that responds to the specific characteristics of each individual site.”
The pre-application report covered design and townscape matters. It read in part:
“6.15 Whilst there has been much discussion on the overarching design, detailed discussions have not yet taken place on the specifics for each location. This is an important step and the applicant has been advised that site-by-site analysis is required in order that the specific proposals and specific siting considerations can be fully assessed and any issues can be resolved at pre-application stage.”
Brightness was adjustable, and the intensity reduced at night: 6.28.
The potential impact on neighbouring occupiers' living conditions, the pre-application report stated, was one of the critical considerations: 6.32. This part of the report added:
“6.33 It is noted that in many of the existing locations (particularly in commercial areas), the existing poster (paper) adverts are back-lit and the change to digital advertising may not be significant. However, in more residential locations, there may not be the same level of illumination to advertisements. A full assessment will need to be carried out for each individual site of the existing illumination and the impact of the illumination proposed by the digital advertising and details submitted with any future application.”
The minutes of that meeting suggest that Members were concerned with range of other matters concerning the scheme but not with the issues arising in these proceedings.
Application for advertising consent
The interested party applied to the Council for consent for digital advertising on a replacement bus shelter in essentially the same location outside the claimant's home as the previous bus shelter. The application noted that this was in a quiet, residential, suburban location. Frequent traffic on the road was noted. Photographs of the previous shelter showed that it was near the boundary of the claimant's property with the highway. A plan in the application showed that the replacement bus shelter would be narrower, giving more room for passing pedestrians. Apparently the new bus shelter would be some 15 metres from the closest elevation of the house itself. At the time of the application photographs showed established fencing and planting adjacent to the proposed shelter.
The application explained that there were two digital screens in a small hub cabinet in the proposed bus shelter. These screens would have the primary function of displaying Transport for London customer information as well as local area information for the public (maps and bus routes). They may also be used to display messages from the Council. Then forming an end panel to the bus shelter would be an 80 inch, two-sided digital screen, with advertising, measuring 2.270m in height, 1.180m in width and 0.25m in depth. Advertisement consent was sought for both the small format digital screens and the large panel.
In May 2021 the existing bus shelter outside the claimant's home was removed. The bus stop itself remained.
Officer's report
The decision to grant the advertising consent was made by the Council's head of development management under delegated powers.
There was an officer's report. The report set out the officer's decision to approve the application subject to specified conditions (paragraph 2), before going on to explain the nature of the application and the location (paragraphs 3.1–3.2). The report stated that there had been no consultation letters sent out to neighbours, and that no representations had been received (para 4.1).
Paragraph 5 of the report set out the considerations behind the decision to approve the application and that these were contained in the Town and Country Planning (Control of Advertisements) (England) Regulations 2007. These powers were to be exercised, the report said, “in the interests of amenity and public safety taking into account the provisions of the development plan, and any other relevant material factors”: 5.1. As to amenity, paragraph 5.2 stated:
“Factors relevant to amenity include the general characteristic of the locality, including the presence of any feature of historic, architectural, cultural or similar interest. Factors relevant to public safety include the safety of persons using any highway; whether the display of the advertisement is likely to obscure or hinder the interpretation of any traffic sign; and whether the display of the advertisement is likely to hinder the operation of devices used for security, surveillance or for measuring the speed of any vehicle.”
The principal issues, the report went on to explain, were amenity and public and highway safety: 5.3.
Amenity was dealt with at some length. There was, first, reference to paragraph 136 of the National Planning Policy Framework, which notes that the quality and character of places can suffer when advertisements are poorly sited and designed: 5.4. The report then detailed the importance of the public realm as follows:
“5.5 The quality of the public realm has a significant influence on quality of life because it affect's people's sense of place, security and belonging. London Plan (2021) Policy D8 ‘Public Realm’ requires development proposals to ‘ensure the public realm is well-designed, safe, accessible, inclusive, attractive, well connected [and] related to the local and historic context’. Furthermore,...
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