The High Court has thrown out a legal challenge by Clear Channel UK Limited who contested a planning authority notice to remove a digital advertising display structure. Will Gay and James Dutson report on a case with wide implications as digital sites burgeon.
Who: Clear Channel UK Limited –v- London Borough of Hammersmith and Fulham
When: 27 February 2009
Where: High Court of England & Wales
Law stated as at: June 2009
Clear Channel UK Limited ("Clear Channel") enjoyed the use of an advertising hoarding on Fulham Palace Road, London which had been in situ since 1966.
The original static hoarding benefitted from deemed consent by virtue of the use of the site for advertising without express consent for 10 years. From 1991 onwards this display was gradually upgraded with an illuminated display of rotating panels, an illuminated scrolling display and a static illuminated display. No objections were raised by Hammersmith & Fulham Council (the "Council") to these changes.
In April 2008, the last of these displays was replaced with a taller digital display with internal illumination which was programmed to show a new advertisement every seven seconds. This structure was erected without the prior consent of the Council.
On 23 May 2008 the Council served notice under section 11 of the London Local Authorities Act 1995 (the "Section 11 Notice") on Clear Channel giving them 21 days to take down the advertising display structure because it breached the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (the "Regulations").
Furthermore, the Council argued that as a result of Clear Channel having materially changed the use of the site by erecting the new digital display, the deemed consent under which it previously used the site was forfeited and they were no longer able to use the site.
Clear Channel sought Judicial Review of the Council's decision.
Clear Channel argued that it had the benefit of a deemed consent by virtue of the use of the site for advertising without express consent over the previous 10 years.
The Council defended their position and argued that the new display was a material alteration from that which was previously in place, which pursuant to the Regulations meant that the deemed consent which Clear Channel previously enjoyed was forfeited.
Furthermore, the Council argued that the saving provisions of Class 13 of Part 1 of Schedule 3 to the Regulations, which state that a new sequential display is allowed if it is (a) erected on or before 6 April 2007, or (b) erected after 6 April 2007 provided the previous display operated from the site was a "sequential" display, did not apply because the previous display was not "sequential".
Clear Channel went on to argue that regardless of the position with regards to the display itself the Council should have refrained from serving a Section 11 Notice without first asking the claimant to remove the objectionable elements, thus allowing Clear Channel to revert to the permitted display and retaining the deemed consent for the previous use.
The Court's decision
The Court refused Clear Channel's appeal and sided with the Council. In the Court's opinion the changes were material and the new display did not benefit from the saving provisions. Therefore, the Court held that the Council was within its rights to request it to be removed.
Furthermore, the Court held that the deemed consent was lost as a result of this material change and the right to revert to a previous use was forfeited. However, it is worth noting that the Court did acknowledge that it was in a council's discretion to request removal of an offending display and reverting to an original use rather than serving a formal section 11 notice to remove.
Why this matters:
This decision is important because as advertising technology evolves agencies should be very conscious of how they upgrade their advertising sites, even if historically no objections to changes have been raised by the relevant council. Most importantly, agencies should not make assumptions about deemed consent before changing the type of advertising hoarding at a particular site, as they could find they lose the right to advertise on that site altogether.
Clear Channel may be appealing the decision, so watch this space.