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R (on the application of Winfield) v Secretary of State for Communities and Local Government [2012] EWCA Civ 1415; [2012] PLLR 144

Planning control - deemed consent - Town and Country Planning Act 1990 - section 191 - continual use - advertisements - meaning of advertisement

Where a landowner had displayed advertisements on his land for a for a number of years, this did not amount to continual use sufficient to give rise to deemed consent when the advertisements had been taken down from time to time in order to avoid enforcement action by the local authority. That the wooden posts used to display the advertisements remained on the land during periods where there were no advertisements was not sufficient to constitute continuous use.

7 November 2012

Court of Appeal

Maurice Kay and Elias LLJ; Sir Stephen Sedley

(1)        The claimant (W) owned land on which he had, for a number of years, displayed advertisements for his own retail business. His application for a Certificate of Lawful Use or Development was refused. The Inspector appointed by the defendant dismissed W's appeal on the basis that the conditions for deemed consent were not met, namely that there had not been continuous use for a period of more than ten years. This decision was upheld by Supperstone J.

(2)        W claimed that the judge had been wrong in failing to find that the Inspector had erred in applying section 171B of the Town and Country Planning Act 1990 (the 1990 Act), which deals with deemed consent to a breach of planning control, rather than Class 13 of Part 1 of Schedule 3 to the Town and Country Planning Act (Control of Advertisements) (England) Regulations 2007. He further argued that the presence of the wooden frames to which the advertisements were attached was sufficient to constitute continuous use even when no advertisements were displayed.

(3)        Maurice Kay LJ (with whom Sir Stephen Sedley agreed) held (i) that the real question was whether the application of Class 13 would have give rise to a different finding. Where the interruption to the use of the land is against the landowner's will, as in the instant case where it was to avoid enforcement action following warnings from the local authority, this is a material break. This situation was to be distinguished from Westminster City Council v Moran [1999] 77 CP & CR 294, where cessation of the activity had been voluntary. Where the landowner then reinstates that use, this triggers a new period following which ten years must elapse before deemed consent can be found to exist. To hold otherwise would create a loophole which would ultimately allow landowners to avoid all enforcement action. This would have the effect of deterring light-touch enforcement by local authorities [7] - [12]. (ii) That the presence of the wooden frames was not sufficient to constitute continuous use. Advertisements were defined by section 336(1) of the 1990 Act, a common sense approach to which clearly showed that bare frames could not constitute an advertisement. One purpose of the definition was to allow some control over the exception granted for deemed consent; an interpretation allowing the unadorned frames to constitute an advertisement would create a loophole itself as landowners could erect bare frames for ten years before beginning to advertise [18] - [19].

(4)        Obiter: the definition of advertisement contained within section 336(1) of the 1990 Act was cumbersome and somewhat circular [14].

(5)        Per Sir Stephen Sedley: resolving the instant case had required a purposive approach to the interpretation of section 336(1), which was not desirable. It was to be hoped that the department would look to bring clarity to the definition [29].

Appeal dismissed

Key paragraphs

[[1] - [2] - Introduction

[3] - Inspector's decision

[4] - [6] - The grounds of appeal

[7] - [12] - The Class 13 point

[13] - [19] - ‘Advertisements'

[20] - Conclusions

[21] - [27] - Lord Justice Elias

[28] - [29] - Sir Stephen Sedley

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