The case raises several issues over the relationship between deemed and express consent and the obligation for planning inspectors to consider hypothetical alternatives to the specific advertisement concerned before issuing notice on the whole site.
The appellant company had been granted deemed consent for the display of an illuminated advertisement inside its London office building alongside the River Thames. The council considered the building to be in a prominent position and placed emphasis on the flashing effect of the sign due to the frequency of the changing adverts, which it said resulted in a distracting pattern of light. Any form of illuminated advertisement displayed on or behind the building’s windows would cause substantial injury to the amenity of the locality. It claimed.
The council issued a discontinuance notice under regulation 8(1)(b) of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 withdrawing the company’s deemed consent for the whole building, rather than for the particular advert. The company appealed, arguing that the local planning authority had to be satisfied that there were no hypothetical acceptable alternatives to the specific advertisement before issuing a notice relating to the whole site.
The Court of Appeal confirmed that authorities are not required to consider every hypothetical advertisement that could be displayed on the site before reaching their decision. It held that if the authority is satisfied that there is likely to be substantial injury to the amenity of the locality caused by the use of a particular site, rather than a particular advert, then a valid notice can still be served. Importantly, the court emphasised the long-recognised principle in planning law that decision-makers are not required to stray beyond the parties’ respective cases. It would be impracticable and place an unnecessary burden on an authority if it was required to consider every potential advertisement that could be erected within a building, the court observed.
The judgment also emphasised the difference between deemed and express consent, stating that the discontinuance notice did not prevent the company from making an application for express consent in relation to any advertisement in any specified form. Deemed and express consent are separate regimes and discontinuing a deemed consent would not automatically mean refusal of an application for express consent, it reasoned. The case is an important reminder that even if an advertisement benefits from deemed consent, for example by virtue of having been in place continuously for over ten years, a discontinuance notice can still be served.
Putney Bridge Approach Ltd v Secretary of State for Communities and Local Government and London Borough of Hammersmith and Fulham; Date: 19 October 2018; Ref:  EWCA Civ 2268
Alex Ground is a partner in the real estate team at Russell-Cooke. Trainee solicitor Christopher Brown also contributed to this article.