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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Thomas (t/a RT Properties) v National Assembly for Wales & Anor [2009] EWHC 1734 (Admin) (14 July 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/1734.html Cite as: [2009] EWHC 1734 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CARDIFF DISTRICT REGISTRY
ADMINISTRATIVE COURT IN CARDIFF

		Birmingham Civil Justice Centre Birmingham
		14 July 2009

Mr Justice Wyn Williams:

1. In these proceedings the Claimant seeks an order under section 288 of the Town and Country Planning Act 1990 quashing the decision of an Inspector duly appointed by the Minister for Environment, Sustainability and Housing, one the Welsh Ministers, whereby he dismissed an appeal made by the Claimant against a decision of the Second Defendant.
2. The relevant background is as follows. On 10 March 2008 the Claimant, by his agent, applied to Neath Port Talbot County Borough Council, the Second Defendant, for permission to display an advertisement upon a building owned or occupied by the Claimant at Swansea Gate Business Park, Fabian Way, Swansea. Consent for the display was sought for a period of 10 years.
3. The advertisement in question measured 10.99 metres wide by 5.4 metres high and it was mounted atop the elevated end of a long two storey business premises. It was internally illuminated and the Claimant had erected the advertisement before he made the application for permission. The application was made pursuant to the Town and Country Planning (Control of Advertisements) Regulations 1992 which are the applicable Regulations in Wales.
4. A planning officer prepared a report upon the application. Under the heading "Relevant Planning History" the officer wrote the word "none". Under the heading "Appraisal" he identified the main issues for consideration as being the impact upon visual amenity of the surrounding area and public safety. The officer concluded that the application for permission should be refused. His assessment was that the advertisement would have an adverse impact upon visual amenity to the detriment of the street scene and character of the surrounding area.
5. On 9 June 2008 the Second Defendant's Head of Planning, Mr White, issued a notice refusing permission for the retention of the advertisement. He specified the reasons for refusal as being:-

"The advertisement sign by virtue of its illumination, sighting, size and design will have an adverse impact upon visual amenity to the detriment of the street scene and character of the surrounding area. The proposal is therefore contrary to policies C1, ENV 17 and ENV 25 of Neath Port Talbot Unitary Development Plan".

6. The Claimant exercised his right of appeal under Regulation 15 of the 1992 Regulations. He elected to have his appeal conducted by the written representations procedure. The Claimant, by his agent, served two statements in support of the appeal. As I understand it, the Second Defendant did not serve a statement of evidence but it relied upon the officer's report to which I have referred. The Inspector undertook an unaccompanied sight visit before issuing a decision upon the appeal.
7. By his decision letter dated 21 November 2008 the Inspector dismissed the appeal.
8. In this claim the Claimant relies upon two grounds in support of his application for a quashing order. He argues first that the Inspector failed to provide any reasons whatsoever for rejecting an important part of his case. As an alternative to this first ground of challenge the Claimant also argues that the Inspector failed to have regard to a material consideration or, if he did, his approach to that consideration was irrational. The second ground relied upon by the Claimant raises an issue as to whether or not it was open to the Inspector on the appeal to reach a conclusion as to whether a deemed consent for the display existed and, if so, whether he should have issued a decision to that effect. I begin my consideration of the two grounds by setting out the facts additional to those set out above which are germane.
9. In the first of the two statements served in support of the appeal the Claimant described the advertisement as being internally illuminated and erected upon "existing supports and framework"(see paragraph 1.2). He also sought make it clear that the advertisement for which he sought permission was a replacement for an advertisement which had been in place for at least 10 years prior to the application (see paragraphs 4.1, 4.3, 5.2, 8.2.1, 8.3.2, 9.1 and 10.1). The Claimant also asserted that the only differences between the sign for which permission was sought and the sign which had been in place previously was that the previous sign was "marginally" larger and illuminated externally (see paragraph 4.1.).
10. In paragraph 4.3 of the first statement the Claimant recorded that the Second Defendant confirmed that a sign had been in situ for "some 10 years." He also made the point that the Second Defendant had never raised an objection to the existence of that sign and in paragraph 10.1 the Claimant asserted that the previous sign had caused "no concern for over 10 years."
11. In his second statement in support of the appeal the Claimant provided further information about the history of a sign at the appeal location. In paragraph 6 9.1 the following appears:-

"We understand that the sign may, in fact, have been sited in this position for over 40 years. A copy of an aerial photograph has been located and blown up detail from it showing the sign is attached as photo 1. This clearly shows the sign in this position, utilising what appears to be the existing supports and framework. It is also understood that this sign was internally illuminated. The fact that the sign refers to Ford, who ceased operations well over 10 years ago, clearly indicates the longevity of the sign."

12. In the decision letter the Inspector makes no reference to the facts alleged in the Claimant's two statements.
13. Mr Kolinsky, on behalf of the Claimant, submits that one of the central contentions advanced on behalf of the Claimant in his written representations to the Inspector was the point that there had been an advertisement of a virtually identical nature to the advertisement under appeal displayed in the identical place for which permission was sought for many years without objection. The Inspector's analysis of the character of the area and the impact of the advertisement in question in terms of its impact on amenity did not acknowledge this uncontested history. In fact, the Inspector makes no express reference to this issue, at all, in the decision letter.
14. In his written Skeleton Argument and oral submissions, on behalf of the First Defendant, Mr Maurici submits that Mr Kolinsky is wrong to categorise the fact that an advertisement had existed in situ for many years prior to the application as a central issue or central contention. In the submission of Mr Maurici, the fact that a previous similar sign had been in place for over ten years without objection was a relevant factor but no more than marginally so. He submits that the fact of the previous similar sign was a peripheral issue which did not require express reference in the Inspector's decision letter. He submits that it is clear that the issue was taken into account by the Inspector since the Inspector makes express reference to having taken into account "all the evidence submitted" (see paragraph 12 of the decision letter).
15. The duty to give reasons when making a planning decision has been considered in a host of decisions both at first instance and in the highest courts in the land. It is sufficient in this judgement to set out an extract from the head note in the decision of the House of Lords in Bolton Metropolitan District Council and others v Secretary of State for the Environment and others [1995] 71 P&CR 309. The extract reads:-

"What the Secretary of State must do is to state his reasons in sufficient detailed to enable the reader to know what conclusion he has reached on the 'principal important controversial issues'. To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden……….. "

16. In the light of that guidance it seems to me that the crucial issue for my determination is whether, fairly and objectively, the Claimant identified the fact of the previous advertisement, the absence of objections to it and its similarity to the advertisement for which permission was being sought as a central feature of his case and one which supported it. If he did so, it was necessary for the Inspector to deal with the points raised expressly and give reasons why (if it was the case) he did not regard the point(s) as did the Claimant.
17. In reaching a judgment about that it is as well to remember what the Inspector was required to consider when granting or refusing the permission sought. Regulation 4 of the 1992 Regulations in the following terms:-

"(1) A local planning authority shall exercise their powers under these Regulations only in the interest of amenity and public safety taking account of any material factors and particularly (a) in the case of amenity, the general characteristics of the locality, including the presence of any feature of historic, architectural, cultural or similar interest, disregarding, if they think fit, any advertisement being displayed there."

18. In that statutory context it is obvious, in my judgment, that the Claimant was putting forward the fact that an advertisement of identical or virtually identical size had been in situ for many years and which was an unobjectionable feature of the locality as a powerful reason why permission should be granted. I do not see how any other conclusion is possible upon a fair and objective reading of the documentation put in by the Claimant in support of the appeal.
19. That being so it seems to me it was one of the "principal important controversial issues". Consequently, it was necessary for the Inspector to deal with it expressly and give reasons (assuming that to be the case) why he did not regard the point as being such a good one for the Claimant as was being suggested by him. His failure to deal with the issue at all (save insofar as it was referred to in the phrase "all the evidence submitted") means that his decision did not contain a sufficiency of reasoning. In reaching this conclusion, I draw some comfort from the general approach adopted by Mr. Duncan Ouseley QC (as he then was) in Retail Media Ltd v Secretary of State for the Environment (unreported 11 October 2000). That too, was an appeal under 288 Town and Country Planning Act 1990 against the dismissal by an Inspector of an appeal against the refusal of a local authority to grant permission under the 1992 Regulations. It is clear that the learned deputy judge was of the view that an Inspector on such an appeal was duty bound to give reasons justifying his conclusion upon the principal controversial issues in the case.
20. It is common ground that the decision of the Inspector can only be quashed if it has caused prejudice to the Claimant. Neither in his Skeleton Argument nor in his oral submissions did Mr Maurici contend that prejudice had not been established if insufficiency of reasons was established. In my judgment, he was clearly right in that stance. As Mr Kolinsky submits, the Claimant simply cannot understand from the decision letter why objection is now being taken on amenity grounds to the sign in question when a previous sign of virtually identical size in an identical location existed without objection for a substantial period of time. Accordingly, the Inspector's decision should be quashed on ground 1 of the Claimant's two grounds.
21. I turn to ground 2. This ground raises two issues. First, did the Inspector have jurisdiction to consider whether the Claimant required consent at all for the advertisement in question? Second, if the answer to the first question is yes, should the Inspector have determined the issue of whether the Claimant required such consent? I deal with these two issues in the order in which I have identified them.
22. Regulation 5 of 1992 Regulations is in the following terms:-

"(1) No advertisement may be displayed without consent granted by the local planning authority or the Secretary of State on an application in that behalf (referred to in these Regulations as "express consent"), or granted by regulation 6 (referred to in these Regulations as "deemed consent"), except an advertisement displayed in accordance with paragraph (2) below.

(2)………"

Regulation 6 provides:-

"(1) Subject to regulation 7 and 8, and in the case of an area of special control also to regulation 19, deemed consent is hereby granted for the display of an advertisement falling within any class specified in part I of Schedule 3, subject –

(a) to any conditions and limitations specified in that Part in relation to that class; and

(b) to the standard conditions.

(2) Part II of Schedule 3 applies for the interpretation of that Schedule."

23. Regulations 6, 7 and 8 are contained within Part II of the 1992 Regulations. Part II is silent upon the procedure to be adopted in the event that there is a dispute or potential dispute about whether a deemed consent has been granted pursuant to Regulation 6. Further, none of the other regulations contained within the 1992 Regulations throw any light upon that point.
24. Part III of the Regulations is headed "Express Consent". Regulation 9 sets out a procedure for making applications for express consent within the Regulations and the following regulations provide for consequential matters and an appropriate avenue of appeal in the event that express consent is refused by the local planning authority.
25. As I have said the Regulations themselves provide no mechanism for determining whether or not a deemed consent exists. Mr Kolinsky submits, however, that it is implicit in every application for express consent that the person applying for such consent is also applying to the local planning authority to determine whether consent is necessary. Accordingly, submits Mr Kolinsky, upon an application for express consent the local authority or Inspector on appeal must also consider whether a deemed consent exists.
26. Nothing in the words of Regulations supports that submission. Mr Kolinsky relies heavily, however, upon the decision of McCombe J in Chambers v Guildford DC [2008] JPL 1459. In that case Mr and Mrs Chambers, the Claimants, owned property and land at Gomshall in Surrey. The principal building on the land was a farmhouse built in the 17^th century. About 3.4 metres to the south of the farmhouse was a pillbox constructed in about 1940 as part of the national defences during the Second World War. On 21 May 1985 the property was listed under the then existing listed building legislation. By application dated April 2 2007 the Claimants applied to the Defendant for listed building consent for removal of the pillbox. The application was made pursuant to the Planning (Listed Building and Conservation Areas) Act 1990. The Claimants contended in the supporting statement served with the application that listed building consent was not required and it was common ground between the Claimants and the local planning authority that the question of whether the proposed removal of the pillbox required listed building consent was at the heart of the application made by the Claimants. By a decision letter dated June 20 2007 the Defendant refused consent. The Claimants did not appeal to the Secretary of State against that decision. Instead they issued proceedings under part 8 of the Civil Procedural Rules in which they sought declaratory relief. The Master formulated a preliminary issue in the following terms:-

"May an application for a declaration as to the need for listed building consent be determined before an application for consent has been considered by the planning authority and (if necessary) the Secretary of State?"

Before McCombe J it was common ground between the parties that the strict answer to that question was yes. Accordingly, McCombe J reformulated the issue before him as being whether it was appropriate for the Court to entertain such an application in the particular circumstances of the case. In relation to this issue the Defendant's stance was that it was not appropriate since the issue of whether listed buildings consent was necessary could be decided on a statutory appeal to an Inspector and the Claimants should have adopted that procedure. Counsel for the Claimants did not agree. His stance was that neither the local planning authority nor the Secretary of State on appeal had jurisdiction to decide whether listed building consent was necessary. Each, he submitted, was confined to deciding whether consent should be granted, making the assumption that such consent was required.

27. It seems to me that the crucial paragraph in the decision of McCombe J is paragraph 30. It reads:-

"30. In the end, I think that it is clear that those concerned in planning matters have for long worked on the assumption that the planning processes are available for determination whether listed building consent is necessary in any individual case. That assumption was made without question all the way to the House of Lords in the Edinburgh case in 1997 [a reference to Edinburgh CC v Secretary of State for Scotland [1997] A.C. 1447] and, although their Lordships did not decide the issue, there is no suggestion that they were in any way concerned that the Reporter [Inspector] had addressed the question of whether consent was required at all. In the intervening years Parliament has not chosen to intervene and there has been no hint from the Secretary of State that such decisions are not ones that should be left to Inspectors. For my part, for reasons already explained, it would seem to me to be highly inconvenient that such questions should routinely have to be decided by the courts before the substantive points could be addressed. In my judgment, it must be implied, therefore, that the initial decision on whether consent is necessary is one for the planning authority and, subsequently if necessary by the Secretary of State on appeal. I find that the High Court's jurisdiction in these questions is not a jurisdiction that excludes these decisions from the planning processes."

28. In the subsequent paragraphs of his judgment McCombe J set out the reasons why he considered it far more appropriate for a local planning authority or an Inspector on appeal as opposed to a Court to determine whether listed buildings consent was necessary.
29. Mr Kolinsky submits that the reasoning of McCombe J as it relates to the issue of whether or not listed building consent is necessary is equally applicable to the issue said to arise in the instant case, namely whether a deemed consent exists. In summary he submits that such an issue is far better dealt with within the planning process than by litigation, at least in the first instance. He points to the fact that factual issues may very well arise – indeed, usually do arise. In those circumstances it makes sense for those factual issues to be determined by the local planning authority and/or an Inspector on appeal.
30. Mr Maurici does not suggest that the issue of whether deemed consent exists should be determined by a Court. Rather he submits that a procedure exists within the planning process whereby the issue of whether a deemed consent exists can be determined. He relies upon sections 191 and 192 of the Town and Country Planning Act 1990 (the 1990 Act). The relevant part of section 191 reads as follows:-

"(1) If any person wishes to ascertain whether –

(a) the existing use of buildings or other land is lawful;

(b) any operations which have been carried out in, on, over or under land are lawful;

or (c) ………

he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.

(2.) For the purposes of this Act, uses and operations are lawful at any time if –

(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or required planning permission or because the time for enforcement action has expired or any other reason); and

(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force."

31. Section 192 has equivalent provisions which are applicable when a person wishes to ascertain whether any proposed use of buildings or other land or any proposed operations in, on, over and under land are lawful.
32. Mr Charles Mynors, Counsel for the Claimants in Chambers has written a textbook entitled "The Control of Outdoor Advertising and Grafiti". In it, Mr Mynors discusses the issue of whether or not a statutory mechanism exists for determining whether or not a deemed consent under the 1992 Regulations exists. In paragraph 5.7.1 Mr Mynors writes:-

"There is, unfortunately, no statutory mechanism by which a planning authority can be required to make a binding determination as to whether or not a particular display of advertisements requires consent under the advertisements regulations ………

Prior to the 1991 reforms to the statutory regime relating to the enforcement of mainstream planning control, the Court of Appeal held that an application for planning permission for a particular proposal might be regarded as containing an informal invitation to the planning authority to determine that it did not involve any development requiring planning permission. On that basis, if the authority issued a written statement that permission was not required, it would be bound by it, even if it subsequently transpired that the statement was wrong. That approach is no longer possible since the introduction in the Planning and Compensation Act 1991 of a procedure to obtain a binding certificate of lawfulness of existing (or proposed) development but it might still apply in relation to advertisements control, in the absence of an equivalent procedure.

It would also, in theory, be possible to obtain a declaration from the High Court as to the need for advertisements to consent. However, it is very unlikely that the Court will be willing to entertain such an application – a declaration is, after all, a discretionary remedy. An application for a declaration as to the need for listed building consent for particular works was thus rejected in Chambers v Guilford BC, with the court holding that the planning authority and the Secretary of State should be invited first to determine whether consent was required and secondly, if it was, to go on to determine whether it should be granted. The same approach would no doubt be taken in relation to an application to determine the need for advertisements consent – or indeed any other consent, permit or licence other than planning permission."

33. In the following paragraphs Mr Mynors deals with certificates under sections 191 and 192 of the Town and Country Planning Act 1990. He writes:-

"The procedure to ascertain the need for planning permission, is, at least in principle, more straightforward.

It has already been noted that a display of advertisements may constitute development – either because it amounts to a building operation or because it constitute a material change in the use of the relevant land.

Where that is so, planning permission is in principle required, but is deemed to be granted so long as the display is in accordance with the advertisements regulations [a reference to section 222 of the 1990 Act].

Where a display constitutes development, therefore, it is possible for anyone interested (not just a prospective advertiser or land owner) to submit an application for a certificate of lawfulness, to discover whether any past or proposed display of advertisements constitutes "development" and, if it does, whether it is in accordance with the Regulations and thus granted deemed permission under section 222. That will effectively require the authority (and on appeal the Secretary of State) to make a binding decision as to whether the advertisement, existing or proposed, is in fact authorised under the Regulations. This procedure therefore may provide in many cases a slightly roundabout way of finding out whether consent is required under the Regulations for a particular display."

34. I do not read the passages quoted above as a suggestion that the issue of whether deemed consent for an advertisement exists must be determined by making an application under sections 191 or 192 of the 1990 Act. It seems to me that Mr Mynors is simply suggesting that an application under those sections may be made where the display of an advertisement constitutes development. It seems to me, however, that Mr Mynors is also accepting, expressly, that the approach taken by McCombe J in Chambers in relation to ascertaining whether there is a need for building consent would apply in the context of deemed consent for an advertisement. That seems to be the only sensible reading of the last sentence of paragraph 5.7.1.
35. I can understand why Mr Mynors takes that approach. Deemed consent within Regulation 6 is granted for a display of advertisements falling within any class specified in Part I of Schedule 3 to the Regulations. It seems to me that there may be considerable doubt, at the very least, whether each of the classes specified in Part I of Schedule 3 necessarily involve the use of buildings or other land or operations carried out in, on, over or under land. A good example is Class I. Since Mr Mynors' view is that section 191 and 192 of the Act can be used as a vehicle to determine whether consent for the application exists only where the display in question constitutes development a different procedure is necessary at least in the case where the display does not constitute development. As he recognises an application under section 191 or 192 of the 1990 Act may "provide in many cases" a way of ascertaining whether deemed consent exists.
36. In my judgment, it is necessary to guard against overcomplicating the issue now being considered. Both the Claimant and the Defendant agree that the best way of resolving whether a deemed consent under Regulation 6 exists is through planning processes. I can think of no sensible reasons why a person who is in doubt about whether he needs express consent for an advertisement because he considers that a deemed consent may exist cannot so frame his application to the local planning authority under the 1992 Regulations so as to require the local planning authority (and the Inspector on any appeal) to determine whether he actually needs express consent or whether a deemed consent exists. In my judgment, the fact that no express mechanism exists in the 1992 Regulations for determining whether deemed consent exists is likely to be a lacuna rather than some deliberate omission predicated on the basis that issues of deemed consent should be dealt with exclusively under sections 191 and 192 of the 1990 Act. I agree with the central thrust of the reasoning of McCombe J in Chambers that the issue of whether or not deemed consent is necessary is best dealt with in the context of the planning process and I can see no objection either in principle or in practice to a local planning authority (or Inspector on appeal) having jurisdiction to determine whether deemed consent is necessary, if asked so to do. In my judgment the 1992 Regulations should be so interpreted so as to permit of such a determination if a request for such determination is coupled with an application for express consent.
37. I am fortified in that view by the reasoning of the Divisional Court in Wyatt v Jarrad [1998]2PLR 81. In that case their lordships were firmly of the view that the 1992 Regulations should be viewed as a self-contained code for the control of advertising.
38. Accordingly, I would hold that if an Applicant for express consent under the 1992 Regulations so frames his application so as to raise the issue of whether a deemed consent exists thereby making an express consent unnecessary the local planning authority (or Inspector on appeal) has jurisdiction to determine that issue.
39. I do not accept, however, that the issue of whether a deemed consent exists falls for determination in the absence of any request by an Applicant for such a determination. In my judgment the decisions in Wells v Minister for Housing and Local Government [1967] 1 WLR 1000 and Western Fish Products Limited v Penwith District Council [1981] 2 ALL ER 204 do not compel such a conclusion. Those cases were decided upon statutory wording quite different from that which exists in the 1992 Regulations. I agree with the decision of Mr Lockhart-Mummery QC, sitting as Deputy High Court Judge in Saxby v The Secretary of State for the Environment and Another [1998] JPL 1132 as to the effect of the 1990 Act upon the decisions in Wells and Western Fish Products Limited.
40. In the light of this analysis I turn to the second issue raised in paragraph 21 above, namely, whether the Inspector, in this case, should have determined whether a deemed consent exists. Put shortly the Claimant asserts that he should have done so on the basis that his second statement raised the possibility that advertisements had been in situ continuously for a period of about 40 years. On that basis, submits Mr Kolinsky, class 13 of Part I of Schedule 3 was satisfied and a deemed consent exists under Regulations 6.
41. The short answer to Mr Kolinsky's submissions is that the Inspector was never asked to determine whether or not a deemed consent exists. In my judgment the Inspector was under no duty to consider whether a deemed consent exists simply because there was an assertion in a statement served in support in an application for an express permission that advertisements may have existed in situ for about 40 years. In my judgment it would be unduly onerous and completely unnecessary to impose a duty upon either a local planning authority or an Inspector to determine whether a deemed consent exists on the basis of such a flimsy evidential base. In my judgment this case bears no real comparison with the decision of Collins J in London Borough of Hounslow v Secretary of State for Communities and Local Government and another [2009] EWHC 1055 (Admin). No useful purpose would be served by prolonging this judgment by drawing out the significant factual differences between that case and this.
42. I have reached the clear conclusion that the Inspector in this case did not fall into error in failing to determine whether a deemed consent exists. Accordingly I would not quash his decision on ground 2.
43. However, as I have indicated, the Claimant has persuaded me that I should quash the Inspector's decision on the first ground advanced. Accordingly, I propose to make a quashing order in respect of the Inspector's determination of the appeal with the consequence that the appeal will be re-determined.