Winfield v Secretary of State for Communities & Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 31 January 2012 |
| Judgment citation (vLex) | [2012] EWHC J0131-4 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/10385/2011 |
| Date | 31 January 2012 |
[2012] EWHC J0131-4
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX
Mr Justice Supperstone
Case No: CO/10385/2011
Mr Hunter appeared on behalf of the Claimant.
Mr Strachan appeared on behalf of the Defendant.
(As Approved)
This is an application under section 288 of the Town and Country Planning Act 1990 for an order to quash a decision of a Planning Inspector, Mr David Pinner, appointed by the defendant. The Inspector dismissed an appeal made by the claimant under section 195 of the 1990 Act against a decision of Rossendale Borough Council to refuse an application for a Certificate of Lawful Use or Development for the use of land at the junction of the A56 and A580, Haslingden, for the display of advertisements, including an associated structure. The council is the local planning authority for the area within which the land is situated. The council refused the application in a decision notice dated 18 April 2011. The defendant was responsible for determining the claimant's appeal against the council's refusal. The Inspector's decision on the appeal was issued on 20 September 2011.
The grounds of the application are that the defendant's decision was not within the powers of the Act, or alternatively that the relevant requirements have not been complied with, and the claimant has thereby been significantly prejudiced (see section 288(1) of the 1990 Act).
The claimant's case as to why the certificate should be granted was stated in the application to be:
"The site has been used for the display of advertisements for more than ten years, so they have the benefit of deemed consent. As a result, planning permission is not required. The structure has been on the site for more than four years and is exempt from enforcement action."
The claimant's statement in support of the application addressed what the claimant stated to be commencement of advertising on site by the installation of four posts in 1997, to which a banner was attached, followed by their replacement with a wooden structure in 2004 and use of the banner for promotions at Winfield's being replaced as promotions took place.
In paragraphs 2.9 and 2.10 the claimant's statement recorded that:
"2.9 The banner would, however, be removed if the Council requested it although the posts or structure would not. A replacement banner would be erected within a few weeks. Dale Winfield's statement says that most of these requests to remove the banner were made verbally so he has no formal record of them and that the authority has been asked about relevant correspondence but has been unable to produce any.
2.10 Interruptions in the use of the site, therefore, were the result of requests from the local authority and not as a result of the applicant's wishes. In the light of the Parker case, therefore, it is considered that such interruptions are not fatal to the continual use of the site necessary for deemed consent."
By a decision notice dated 18 April 2011 the council refused the application, giving the following reason:
"The attached aerial photograph of 2001 does not show the structure now to be seen in the field, nor do the submitted statements/evidence contend this to be the case. Furthermore, the attached photographs of 2003 show three separate advertisement banners in the field, none of which are attached to a structure of the siting and height/dimensions that now exist. The structure not having existed and been continually used for the display of an advertisement for the preceding ten years it cannot benefit from deemed advertisement consent. Accordingly, the Council is not satisfied, on the balance of probabilities, that it is appropriate to issue the Certificate of Lawfulness sought."
The claimant appealed against that decision and submitted a statement of his case. In that statement the claimant repeated his contention that the fact that the advertisement was not being displayed on the day that the 2001 aerial photograph was taken was not considered to be fatal to the claim regarding deemed consent. He stated that his case was that advertisements were placed to advertise promotions four times a year, and he contended at paragraph 4.5:
"…the banner for that promotion would be left in place until the next promotion unless the local planning authority specifically asked for its removal. Any interruption in display was, therefore, as a result of the Council's not the appellant's actions so there has been no break in the continuity of use."
The claimant contended that the council had applied a test of requiring the advertisement to be displayed continuously rather than continually.
The claimant is the owner of the land, and the claimant's business premises, Winfield's of Haslingden Limited, are located near to the land. The application for a certificate of existing lawful use or development was made in February 2011. It is the claimant's case that the land has been used for over ten years for the purpose of displaying advertisements concerning those premises. Banners were originally fixed to wooden posts, and subsequently fixed to a wooden structure for the purpose of advertising the premises.
Mr Hunter, for the claimant, submits that there are three crucial errors in the Inspector's approach. First, he erred in holding that the periods where the banners were not present on site, but the wooden structure itself was, represented any kind of break, whether material or not. Second, he erred in holding that it was not a matter for him to determine on an appeal under section 195 whether any advertisements on the land may be displayed with the benefit of deemed consent under the provisions of the Town and Country Planning (Control of Advertisement)(England) Regulations 2007. Third, as a result of his failure to treat the existence of deemed consent as relevant, the Inspector also failed to apply the correct legal test as to whether there had been a material break in the use of the land by reference to whether it was regularly occurring and in finding that there had been a material break on the basis of breaks for only short periods of a few weeks.
I shall deal with the grounds in the order taken by counsel. First, grounds two and three, which can be taken conveniently together, and then ground one. Grounds two and three: the defendant accepts that the issue of whether or not any deemed consent existed under class 13 of Part 1 of Schedule 3 to the 2007 Regulations was, contrary to the Inspector's view, a matter for the Inspector to consider. Section 222 of the 1990 Act makes special provision for advertisements. The 2007 Regulations were made under section 220 of the Act; accordingly, display of advertisements pursuant to those 2007 Regulations, whether pursuant to a consent or by reason of deemed consent, constitutes the deemed grant of planning permission for the purposes of the 1990 Act.
The Inspector analysed the appeal under section 171B of the 1990 Act, rather than in terms of deemed consent under class 13 of the 2007 Regulations. Mr Hunter submits that the Inspector consequently failed to apply the correct legal test as to whether or not there had been a material break in the use of the land. Instead of directing himself by reference to the decision in Westminster City Council v Moran [1999] 77 P&CR 294, and the need for only a use that was "regularly occurring", even if for example there were gaps of some months, he disregarded that authority, and found that there had been a material break on the basis of breaks for only a short period of a few weeks.
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