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Issue 68 – December 2009

 
News


Features

Cases
  • London and Bath Estates plc v Secretary of State for Communities and Local Government
    Town and country planning – Development. The Administrative Court held that the Secretary of State's inspector was perfectly entitled to dismiss appeals brought under sections 78 and 174 of the Town and Country Planning Act 1990, and regulation 17 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, SI 2007/783, and that adequate reasons had been given for that decision, in the instant application and appeal, which were heard together, having been brought under sections 288 and 289 of the 1990 Act respectively. Hence, the local planning authority's decisions to refuse planning permission, refuse advertisement consent and issue enforcement notices in respect of the erection of an advertising tower / monopole, together with some internally illuminated advertising displays, were justified
  • *R (on the application of the Health and Safety Executive) v Wolverhampton City Council
    Town and country planning – Permission for development. In the instant judicial review, the Administrative Court gave a ruling on whether paragraph A5 of DETR Circular 04/2000, which concerned 'planning controls for hazardous substances', contained a mandatory requirement or was directory in effect, and, further, held that the defendant local authority had erred in numerous respects in granting planning permission to the interested party, against the advice of the claimant, the Health and Safety Executive, for the construction of four blocks of flats, to be used for the accommodation of students attending Wolverhampton University, at a site in Wolverhampton which was located near to a liquid gas petroleum facility
  • *The River Club v Secretary of State for Communities and Local Government and another
    Town and country planning - Permission for development. The Administrative Court gave a ruling on the meaning which was to be attributed to the words 'and any other harm' in paragraph 3.2 of Planning Policy Guidance 2 and arrived at a judgment in respect of the question of whether the approach of the Secretary of State's inspector to the claimant's planning appeal was flawed
  • Gregory Projects (Halifax) Ltd v Tenpin (Halifax) Ltd and another
    Landlord and tenant – Lease. A judge of the Chancery Division, interpreting a conditional agreement for a lease of a commercial and leisure development agreed between the parties declared, inter alia, that the first defendant had not been entitled to rescind the agreement when it purported to do so
  • *R (on the application of Clear Channel UK Ltd) v Hammersmith and Fulham London Borough Council
    Town and country planning – Advertisement. The Court of Appeal, Civil Division found that the judge had been correct to find, inter alia, that the replacement of a single illuminated display by a digital hoarding represented a material alteration in the manner of use of the site; and that whatever the position under the Town and Country Planning (Control of Advertisements) Regulations 1992, SI 1992/666 (the 1992 Regulations) (the predecessor of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, SI 2007/783), under the 2007 Regulations once deemed consent had been lost as a result of a material alteration in the manner in which the site was used it could not be recovered by reverting to a former use.
  • Trustees Ltd v Papakyriacou and another
    Easement - Right of access. The Court of Appeal, Civil Division, allowed the claimant's appeal against the judge's finding that the defendants tenants had not used the claimant's loading bay, over which the defendants and their tenants had an easement entitling them to use it during prescribed hours, outside of the permitted hours. However, while the grant of an injunction was no longer appropriate, the judge should have granted an injunction against the defendants requiring them to notify the tenants of the prescribed time limits
  • Davies v Dennis and others
    Landlord and tenant – Covenant. The Court of Appeal, Civil Division upheld the judge's decision where, on the claimants' claim for enforcement of certain restrictive covenants to prevent the building of an extension to the defendant's property, he had ruled that the extension proposed by the defendant did constitute an annoyance within the meaning of a covenant restricting nuisance and annoyance
  • Mid Suffolk District Council v Secretary of State for Communities and Local Government and another
    Town and country planning – Development. The Administrative Court held that the first defendant Secretary of State's inspector's decision to grant a 'certificate of lawfulness of existing use or development' to the second defendant under section 191 of the Town and Country Planning Act 1990 involved a clear error of law and had to be quashed on an application under section 288 of the 1990 Act. The error, as identified by the claimant local planning authority, was the inspector's decision to treat a planning permission as irrelevant to his task of deciding whether to issue a certificate

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London and Bath Estates plc v Secretary of State for Communities and Local Government

Citation: [2009] All ER (D) 186 (Nov)
Hearing date: 17 November 2009
Court: Queen's Bench Division, Administrative Court (London)
Judge: Christopher Symons QC sitting as a deputy judge of the High Court (Judgment delivered extempore)
Representation: Gregory Jones (instructed by Howard Kennedy) for LBE. Lisa Busch (instructed by the Treasury Solicitor) for the Secretary of State.
Keywords: Town and country planning – Development – Unauthorised – Erection of advertising tower/monopole together with some internally illuminated advertising displays – Local planning authority refusing planning permission, advertisement consent and issuing enforcement notices – Secretary of State's inspector dismissing appeals against authority's decisions - Whether inspector correct - Whether inspector's decision adequately reasoned – Town and Country Planning (Control of Advertisements) (England) Regulations 2007, SI 2007/783, regulation 17 - Town and Country Planning Act 1990, sections 78, 174, 288, 289.

Summary: By a decision letter dated 1 May 2009, the Secretary of State's planning inspector dismissed the six appeals which were then before her. Two of the appeals had been commenced pursuant to section 174 of the Town and Country Planning Act 1990; another two had been commenced pursuant to section 78 of the 1990 Act; the remaining two appeals had been commenced pursuant to regulation 17 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, SI 2007/783. Some of the appeals had been brought by London and Bath Estates plc (LBE), others by Clear Channel UK.

The appeals related to decisions that had been taken by the local planning authority, which had refused planning permission, advertisement consent and issued enforcement notices against LBE and Clear Channel UK in respect of the erection of an advertising tower/monopole and some internally illuminated advertising displays. The site, at which the tower/monopole and advertisements had been erected, was near the Chiswick roundabout in the west of London (the surrounding area was designated as 'metropolitan open land', and comprised various conservation areas). The inspector had determined that the development in question impacted on the general local environment.
In relation to the tower/monopole, the inspector had said that the verticality of the same was intrusive, both from the skyline and at ground level.

In relation to the advertisements, it was said that those were detrimental to the interests of amenity. It was further said that a grant of permission for a limited period of time - two years was suggested - either with or without conditions, was not sufficient justification for the grant of permission, having in regard, particularly, to the site's planning history. In the event, LBE brought proceedings - an application under section 288 of the 1990 Act and an appeal under section 289 of the 1990 Act - seeking an order quashing the inspector's decision, and the enforcement notices which had been served upon it. Various criticisms were made; the principal point, however, was that the inspector's decision was inadequately reasoned.

The application would be dismissed. The appeal would be dismissed.

In the circumstances, there was nothing in any of LBE's criticisms. The inspector had made a planning judgment, a value judgment, of which she was perfectly entitled to make. Her decision had been adequately reasoned. All relevant considerations had been taken into account, even though not all of them had been made explicit in the decision letter. No grounds had been made out which justified a quashing of the decision.

Accordingly, the inspector's decision would be upheld.

South Bucks District Council v Secretary of State for Transport, Local Government and the Regions [2004] 4 All ER 775 applied.

Robert Chan, barrister
Published date: 17/11/2009
 
*R (on the application of the Health and Safety Executive) v Wolverhampton City Council

Citation: [2009] All ER (D) 60 (Nov)
Alternative citations: [2009] EWHC 2688 (Admin)
Hearing date: 5 November 2009
Court: Queen's Bench Division, Administrative Court (London)
Judge: Collins J
Representation: Philip Coppel QC and Carine Patry-Hoskins (instructed by the Treasury Solicitor) for the claimant. Robert Griffiths QC and Estelle Dehon (instructed by Wolverhampton City Council, Legal Services) for the authority. James Maurici and Jacqueline Lean (instructed by Reed Smith LLP) for the interested party.

Keywords: Town and country planning – Permission for development – Material consideration – Circular on planning controls for hazardous substances Application for planning permission for development near to liquid gas petroleum facility – Claimant (HSE) advising against grant of permission – Defendant authority's committee granting permission following recommendation of its planning officers - Meaning of paragraph in Circular concerning giving of 'advance notice' of intention to grant permission against HSE advice – Whether failure to have regard to material considerations – Whether grant unlawful, irrational or otherwise perverse - Town and Country Planning (General Development Procedure) Order 1995, SI 1995/419, article 22(1).

Summary: The judgment is available at: [2009] EWHC 2688 (Admin)
In July 2007, the interested party submitted an application for planning permission for the construction of four blocks of flats, to be used for the accommodation of students attending Wolverhampton University, at a site known as the 'Canalside Quarter' in Wolverhampton. In September, the defendant local authority consulted the claimant (HSE) – a body established by statute tasked with the function of protecting against risks to health and safety arising from the conduct of operations at work and the storage and use of dangerous substances - by entering the details of the proposed development into the HSE's software known as PADHI (Planning Advice for Developments near Hazardous Installations) (currently PADHI+). The PADHI+ was to be used in the process of deciding whether planning permission should be granted where a potential development was in one or more of the identified 'risk zones'.

The calculation of 'risk' depended upon a number of factors, but at its most basic level, was based on the effects of a 'Boiling Liquid Expanding Vapour Explosion'. It was not in dispute that a facility at which liquid gas petroleum (LPG), a dangerous and hazardous substance, was stored, was situated on the other side of railway lines and within 100m of the Canalside Quarter; and that were there to be a major accident at the facility, the effects could be catastrophic, with deaths and serious injuries to persons a likely result. In the event, the HSE responded with the following advice: 'the risk of harm to people at the proposed development is such that HSE's advice is that there are sufficient reasons, on safety grounds, for advising against the granting of planning permission in this case'. Reference was made to several paragraphs of DETR Circular 04/2000 which concerned 'planning controls for hazardous substances' (the Circular), including paragraph A5, which provided, so far as material: 'where a local planning authority  [...]  is minded to grant planning permission  [...]  against HSE's advice, it should give HSE advance notice of that intention, and allow 21 days from that notice for HSE to give further consideration to the matter [...] ' After receiving HSE's advice, the authority entered into a period of negotiations with the interested party. A planning officers' report was submitted to the authority's committee in March 2008.

The committee followed the officers' recommendation to delegate authority to the Director for Sustainable Communities to grant permission subject to the satisfactory resolution of various issues. Those issues were dealt with and permission was, as a result, formally granted on 4 August (see [17] of the judgment for an extract of the 'notice of decision'). In due course, the HSE applied for judicial review of the grant of 4 August, seeking various orders, including an order for the permission to be quashed, and injunctive relief to prevent further construction work at the site, and the occupation of the blocks of flats of which, pursuant to the permission, three of the four had been built. An order was also sought requiring the authority to revoke the permission following its refusal to modify or revoke it on 29 May 2009.

The HSE submitted that there had been a failure to have regard to material considerations by reason of the fact that certain relevant material had not been placed before the committee prior to its decision of 4 August; that the grant itself was unlawful on the ground that no summary of the 'policies and proposals in the development plan which are relevant', as required by article 22(1) of the Town and Country Planning (General Development Procedure) Order 1995, SI 1995/419, was given; and that the grant was irrational or otherwise perverse. An issue also arose as to whether paragraph A5 of the Circular contained a mandatory requirement or was directory in effect.

The court ruled:

(1) Paragraph A5 of the Circular contained a mandatory requirement with regard to the giving of 'advance notice' of an intention to grant planning permission against HSE advice (see [13] of the judgment).

The fact that the requirement was mandatory would enable the HSE to seek full information about the particular development and to consider whether the PADHI+ advice, of which was based solely upon the information put in by a planning authority and the general view resulting from it, should be maintained. No consideration would have to be given to the value of the development or to whether measures could be taken which might permit the development subject to certain conditions. Further, and most importantly, the HSE could, if it decided to maintain its advice against permission, request the Secretary of State to call-in the application and hold an inquiry. In the end, the Secretary of State would have to make a judgment based on the value of the development and the risk resulting from the proximity of the hazardous establishment, but that judgment would have to be made on a consideration of all the relevant evidence (see [13] of the judgment).

(2) In the circumstances of the instant case, there could be no doubt that the officers had failed to put material matters before the committee prior to 4 August. That in itself meant that the decision of the committee to grant permission was flawed. Further, and in any event, the committee had made errors. While a number of conditions were imposed, and the policies relevant to each of those conditions were specified, no summary as required by article 22(1) of the 1995 Order was provided.
In addition, no reference was made to a policy that was clearly highly relevant. In the instant case, a substantial issue was the risk created by the proximity of the LPG facility and the advice given by the HSE that permission should be refused. Nowhere was that referred to. Anyone interested in the grant of permission for the development at the Canalside Quarter would want to know that the safety issue had been raised by the HSE and why the authority had decided that it was right not to follow the advice given. As for irrationality and perversity, there was nothing in HSE's challenge. The committee was wrong to have had granted permission, but its decision could not properly be categorised as perverse in the sense that it was one which no reasonable decision maker could have had made. Bad faith was not established but a failure to do what should have been done was. So far as the decision of May 2009 was concerned, that could not be categorised as irrational either. The impact on the interested party coupled with the completion of three of the four blocks and the reasonable view that the HSE's failure to take immediate action showed that the risk could not be regarded as immediate entirely justified a refusal to revoke or modify (see [15], [17], [18], [21]-[23], [40] and [44] of the judgment).

To grant injunctive relief would not be appropriate. Further, it would not be appropriate to quash the permission or to grant any relief in respect of the decision refusing to revoke or modify the permission. However, declarations would be made to the effect that the authority had: (i) failed to notify the HSE that it was minded to grant permission; (ii) failed to notify the HSE that it had granted permission; (iii) failed to provide an adequate summary of its reasons for granting permission; and (iv) failed to provide a summary of the relevant policies. The authority would be ordered to take steps to address the failings at (iii) and (iv) (see [7], [32], [42] and [45] of the judgment).
R (on the application of Tratt) v Horsham District Council [2007] All ER (D) 437 (May) applied; Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 considered.

Robert Chan, barrister
Published date: 05/11/2009
 

*The River Club v Secretary of State for Communities and Local Government and another

Citation: [2009] All ER (D) 66 (Oct)
Alternative citations: [2009] EWHC 2674 (Admin)
Hearing date: 7 October 2009
Court: Queen's Bench Division, Administrative Court (London)
Judge: Frances Patterson QC sitting as a deputy judge of the High Court (Judgment delivered extempore)
Representation: Stephen Whale (instructed by Seddons) for the claimant. Katherine Olley (instructed by the Treasury Solicitor) for the Secretary of State. The authority did not appear and was not represented.
Keywords: Town and country planning –Permission for development – Metropolitan open land – Appropriate development – Planning policy requiring regard to be given to harm by reason of inappropriateness 'and any other harm' – Claimant applying for planning permission to make alterations to fitness studio lying within metropolitan open land – Local planning authority rejecting application – Secretary of State's inspector upholding authority's decision on appeal - Meaning of 'and any other harm' – Whether inspector's decision flawed – Town and Country Planning Act 1990, section 288.

Summary: The judgment is available at: [2009] EWHC 2674 (Admin)
The claimant submitted an application for planning permission to make alterations to its fitness studio, which was located within its club grounds. Those grounds were, for planning purposes, within the 'Metropolitan Open Land' (MOL). The application was refused by the development control committee of the second defendant local planning authority. In essence, the committee had stated that the development proposal was contrary to planning policy, and, further, that it was in an unsuitable location. The claimant subsequently appealed to the first defendant Secretary of State, making representations, inter alia, regarding the use to which the new fitness studio would be put, and, the effect, in financial terms, which the development would have on its club.

An inspector, who was appointed by the Secretary of State to consider the appeal, found, following a site visit, that there were no 'very special circumstances' in the claimant's case sufficient to outweigh the harm – including harm to the green belt and harm in terms of the lack of sustainable transport - which would be caused to the MOL. Accordingly, the planning permission sought was refused. The claimant consequently applied to the High Court under section 288 of the Town and Country Planning Act 1990, seeking an order quashing the inspector's decision on the basis that it was flawed, having regard to authority, and on the ground that the inspector had misapplied planning policy, particularly paragraph 3.2 of Planning Policy Guidance 2 (PPG2), which so far as material read: 'Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations [...] ' Consideration was given, in particular, to the meaning which was to be attributed to the words 'and any other harm' in paragraph 3.2 of PPG2.

The application would be allowed.

(1) The words 'and any other harm' in paragraph 3.2 of PPG2 was not to be constrained to harm which affected the green belt only, but included both harm which was by definition 'inappropriate harm' and some other harm. That would then enable a decision-maker to clearly measure the level of 'harm' which might be caused to the green belt by a particular development against the benefits of the same, for the purposes of concluding whether 'very special circumstances' existed to enable a grant of planning permission.

Doncaster Metropolitan Borough Council v Secretary of State for Transport, Local Government and the Regions [2002] All ER (D) 17 (Apr) considered.

(2) The inspector's decision to refuse planning permission was flawed to the extent that he had not stated that he had considered the cumulative position in respect of the circumstances which had been relied upon by the claimant as amounting to 'very special circumstances' to justify the grant of planning permission.

Accordingly, the decision under challenge would be quashed.

Wychavon District Council v Secretary of State for Communities and Local Government [2008] All ER (D) 286 (Jun) considered.

Robert Chan, barrister
Published date: 05/11/2009
 

Gregory Projects (Halifax) Ltd v Tenpin (Halifax) Ltd and another

Citation: [2009] All ER (D) 299 (Oct)
Alternative citations: [2009] EWHC 2639 (Ch)
Hearing date: 27 October 2009
Court: Chancery Division
Judge: Lewison J
Representation: Jonathan Gaunt QC (instructed by Addleshaw Goddard) for the claimant. Anthony de Garr Robinson QC (instructed by Herbert Smith) for the defendants.
Keywords: Landlord and tenant – Lease – Construction – Parties agreeing conditional agreement –
Conditions fulfilled – First defendant seeking to rescind agreement – Whether first defendant entitled to rescind agreement.

Summary: The judgment is available at: [2009] EWHC 2639 (Ch)
The claimant proposed to develop an island site in Halifax. The development consisted of a multi-level retail, commercial and leisure development with ancillary car parking. The leisure components of the development were intended to include a cinema and a bowling alley. The second defendant was a company that operated bowling alleys. Its subsidiary, the first defendant, entered into a conditional agreement for a lease with the claimant on 23 February 2007. The main provisions of the provisional agreement became unconditional after: (i) the claimant had acquired a freehold or long leasehold interest in the site; (ii) an agreement for a lease with a cinema operator for premises within the development was agreed; (iii) a satisfactory premises and gaming licence had been obtained; and (iv) planning permission was obtained that was free from unacceptable conditions in respect of the developer's works or the use of the premises. The agreement provided that if, at any point prior to the 'end date' of 23 February 2009, the conditions (i) to (iv) had not been satisfied, and the agreement had not become unconditional, either the first defendant or the claimant could, by written notice rescind the agreement. Satisfactory premises and gaming licences were granted on 23 May 2008. On 28 October, the relevant borough council granted planning permission subject to a number of conditions. In November, the claimant informed the first defendant who indicated that it no longer wanted to enter into an agreement for the lease. The claimant completed its acquisition of the site on 1 December. On 11 February 2009, an agreement for lease between the claimant and a cinema operator became unconditional completing the conditions (i) to (iv). On 23 February, the first defendant purported to terminate the agreement. The claimant denied that the first defendant was entitled to rescind the agreement.

The key issue for the court's determination was whether the planning permission with the requisite characteristics had been granted before the 'end date'.

The court ruled:

In interpreting a lease the court had to decide what meaning the agreement would convey to a reasonable person having all the background knowledge of the parties. The court had no power to alter or improve the meaning of the agreement or lease, or to make it fairer. Even where the court was invited to imply a term, the exercise was still one of interpretation. In such a case, although the instrument might not have contained that term expressly, the court might conclude that the agreement, taken as a whole and read against the relevant background, had to contain that term. The court was not adding to the agreement, it was merely spelling out what the agreement actually meant (see [20] of the judgment).

On the true construction of the instant agreement the date it became unconditional had occurred before the 'end date' (see [36] of the judgment).
A declaration would be made to the effect that the first defendant had not been entitled to rescind the agreement when it purported to do so (see [36] of the judgment).
A-G of Belize v Belize Telecom Ltd [2009] 2 All ER 1127 considered.

Gareth Williams, barrister
Published date: 30/10/2009
 
 
*R (on the application of Clear Channel UK Ltd) v Hammersmith and Fulham London Borough Council

Citation: [2009] All ER (D) 269 (Oct)
Alternative citations: [2009] EWCA Civ 2142
Hearing date: 27 October 2009
Court: Court of Appeal, Civil Division
Judge: Sir Anthony May P, Wall and Moore-Bick LJJ
Representation: Andrew Fraser-Urquhart (instructed by Grant Saw) for the claimant. Robin Green (instructed by Michael Cogher) for the authority.
Keywords: Town and country planning – Advertisement – Hoarding Service of notice requiring removal of 'new hoarding' on claimant's site – Authority finding that hoarding comprising sequential display which was not permitted - Authority requesting that claimant remove hoarding – Judge finding that material alteration in manner of use of site - Judge finding site could not be recovered by reverting to former use - Whether judge erring – London Local Authorities Act 1995, section 11 - Town and Country Planning (Control of Advertisements) (England) Regulations 2007, SI 2007/783, schedule 3, part 1, Class 13.
 
Summary: The judgment is available at: [2009] EWCA Civ 2142
Schedule 3, Class 13 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, SI 2007/783, so far as material, provides: 'Advertisements on sites used for preceding ten years for display of advertisements without express consent  [...]  (4) An advertisement that--(a) comprises sequential displays; or (b) otherwise includes moving parts or features; or (c) features intermittent lighting in a manner designed to give the appearance of movement, is not permitted unless--(i) it is displayed on 6 April 2007 and falls within the description specified in any of sub-paragraphs (a) to (c); or (ii) it is first displayed after that date, and the advertisement most recently displayed fell within any such description.'

Planning permission had been granted by the defendant local authority for the display of advertising hoardings on a site owned by the claimant. In 2002, the combination of a static display containing paper advertisements, which had been introduced in 1991, and an ultra-vision scrolling display containing illuminated advertisements, which had been introduced in 1998, was replaced by a single illuminated display known in the industry as a 'golden square', and of which had a total coverage of about 36 sq metres. That was the position until April 2008, when the golden square was replaced with a digital hoarding of approximately 18 sq metres. From 6 April 2007, the display of advertisements was controlled by the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, SI 2007/783 (the 2007 Regulations). Subsequently, the authority notified the claimant that the hoarding had to be removed on the grounds that it had not received express consent and had not benefited from deemed consent under the 2007 Regulations because it was materially different from the hoarding that had previously been displayed on the site.
The claimant declined to comply with the authority's demand. The authority served on the claimant a notice under section 11 of the London Local Authorities Act 1995 (the 1995 Act) requiring the claimant to remove the hoarding.

The claimant applied for judicial review. In the event, the judge found that the replacement in April 2008 of the golden square by a digital hoarding represented a material alteration in the manner of use of the site; that the hoarding was an advertisement that comprised a sequential display; and that whatever the position under the Town and Country Planning (Control of Advertisements) Regulations 1992, SI 1992/666 (the 1992 Regulations) (the predecessor of the 2007 Regulations), under the 2007 Regulations once deemed consent had been lost as a result of a material alteration in the manner in which the site was used it could not be recovered by reverting to a former use. Accordingly, he dismissed the claim. The claimant appealed.

The issues were whether: (i) the judge's approach to the issue of material alteration had been correct and whether there had been sufficient evidence supporting his finding; (ii) the digital hoarding was an advertisement that comprised sequential displays; (iii) under the 2007 Regulations, there existed a 'right to revert'; and (iv) the authority's decision to serve a notice under section 11 of the 1995 Act was unlawful because it failed to take relevant matters into account. Consideration was given to section 336(1) of the Town and Country Planning Act 1990 (the 1990 Act).

The appeal would be dismissed.

(1) It was settled law that whether there had been a material alteration in the use of the site was to be judged by reference to considerations of amenity and public safety. Whether there had been any such alteration was a matter of fact for the judge to decide (see [9] of the judgment).
In the instant case, the evidence that the judge had had was sufficient to support the finding that he had made. In all the circumstances, the judge's finding that there had been a material alteration in the manner of use of the site was unassailable (see [13], [15] of the judgment).

(2) The definition of the word 'advertisement' in section 336(1) of 1990 Act was capable of meaning both the image itself and the structure on which it was displayed. An animated display fell within condition 13(4)(a) of the 2007 Regulations, as did a structure which displayed sequential images. Such a structure also fell within condition 13(4)(b) if it had moving parts or features (see [17], [18] of the judgment).
 
In the instant case, if the equipment had been set to display the images in a random order, and for random periods of time, they could properly be described as a sequential display. However, in the context of condition 13(4), which covered advertisements with moving parts or features and intermittent lighting designed to give the appearance of movement, paragraph (a) was intended to apply where there was a change of image and the expression 'sequential displays' was apt to refer to any display in which one image followed another. Accordingly, the judge had been right to hold that the instant case fell within condition 13(4)(a) (see [20] of the judgment).

(3) The language of condition 13(1) of the 2007 Regulations directed attention to changes in the extent to which the site had been used and to alterations in the manner in which it had been used. If there had been any such change or alteration and if it was material, the advertisement currently on the site fell outside Class 13 altogether and did not enjoy deemed consent. The position under the 2007 Regulations did not equate to that under the 1992 Regulations. Moreover, a further change could not effectively restore the former position. The choice of language was sufficient evidence of an intention to depart from the previous position. Accordingly, there was no right to revert under the 2007 Regulations of the kind that was held to exist under the 1992 Regulations (see [25] of the judgment).

In the instant case, the judge had been correct to find that deemed consent could not be recovered by reverting to a former use (see [25] of the judgment).

(4) In the light of the 2007 Regulations, there had only been two courses open to the authority if there had been a material alteration in the manner of the use of the site: (a) to tolerate an unlawful use of the site; or (b) to obtain the removal of the advertisement. Accordingly, while the site had been in use for advertising for many years that could not properly influence the authority in favour of tolerating a use that had recently become unlawful. In all the circumstances, in exercising its discretion to serve a notice under section 11 of the 1995 Act, the authority had not acted unlawfully (see [27], [29] of the judgment).

Decision of Irwin J [2009] All ER (D) 276 (Feb) affirmed.

Jade Campbell, barrister
Published date: 27/10/2009
 
Trustees Ltd v Papakyriacou and another

Citation: [2009] All ER (D) 274 (Oct)
Alternative citations: [2009] EWCA Civ 1089
Hearing date: 27 October 2009
Court: Court of Appeal, Civil Division
Judge: Longmore, Moses and Rimer LJJ
Representation: Jonathan Arkush (instructed by Greenwood & Co) for the claimant. Andrew Skelly (instructed by Stennett & Stennett) for the defendants.
Keywords: Easement –Right of access – Restrictions on access – Injunction – Defendants and tenants having easement entitling them to use claimant's land – Claimant alleging that defendants and tenants flouting time restrictions – Judge refusing to grant injunction on basis that neither defendants nor tenants flouting restrictions – Whether judge erring.
Summary: The judgment is available at: [2009] EWCA Civ 1089
The claimant company owned land which adjoined land owned by the defendants. The claimant's land included a small area over which the defendants and their tenants had an easement entitling them to use it as a loading bay for the purposes of their businesses. The claimant asserted that the defendants and their tenants had flouted certain time restrictions relating to the enjoyment of that easement, had trespassed on the servient land and had committed a nuisance. In a letter dated 29 January 2008, the claimant wrote to the defendants notifying them of the times they would be permitted to use the loading bay. The claimant subsequently alleged that those time restrictions were not being observed. Accordingly, it commenced proceedings against the defendants seeking injunctions restraining any continued infringements. The judge found that neither the defendants nor their tenants had flouted the restrictions, and therefore refused to grant the injunction sought. The claimant appealed.

The issues were whether, inter alia: (i) the judge had been right to find that the defendants had not used the loading bay outside of the prescribed hours; (ii) he judge had been right to find that the tenants had not used the loading bay outside of the prescribed hours; and (iii) the had been wrong to refuse an injunction.

The appeal would be allowed in part.

(1) On the evidence, the judge had been entitled to find that the defendants had not used the loading bay outside the prescribed hours. Moreover, he had been justified in concluding that it had not been proved that the defendants had used the loading bay since 29 January 2008 outside the prescribed hours; and that the defendants would respect the temporal limitations imposed by the claimants with regard to future use (see [41] of the judgment).

(2) There had been material before the judge to which his judgment had made no reference. Certain of that material had amounted to a clear admission, indeed an assertion, by the defendants that the tenants had continued to use the loading bay outside the prescribed hours. The judge had paid no regard to any of it. If he had considered that material, he could have only concluded that the claimant had established the case that the tenants had continued to use the loading bay outside the prescribed hours. Accordingly, the judge had fallen into error in finding that the tenants had not used the loading bay outside of the prescribed hours (see [48] of the judgment).

(3) The judge ought to have accepted that the tenants had continued to use the loading bay out of hours. It was unrealistic to regard the tenants as having used the loading bay otherwise than with the defendants' permission; and for a period, that permission contained no temporal restrictions. Following 29 January 2008, the tenants' permission from the defendants continued to be of an unrestricted nature. The defendants should have taken steps to limit the tenants' permission to a use within the prescribed hours. Had the judge accepted that the tenants had continued to use the loading bay out of hours and recognised that they had done with the defendants' permission he should have granted an injunction against the defendants requiring them to notify the tenants of the prescribed time limits and to limit the tenants' permission to use the loading bay to within those limits. However, in all the circumstances, the grant of an injunction was no longer appropriate (see [49], [50], [53], [55], [60], [63] of the judgment).

Jade Campbell, barrister
Published date: 27/10/2009
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