Discontinuance Notices under Regulation 8(1)(b): No Free-Standing Duty to Assess Every Deemed Consent Class Absent a Properly Advanced Alternative Case
1. Introduction
This appeal concerned a discontinuance notice (“DN”) served by a local planning authority under Regulation 8 of the 2007 Regulations, requiring the cessation of the use of a site for the display of advertisements benefiting from “deemed consent” (i.e. consent automatically granted by the Regulations for specified classes of advertisement).
The appellant (an outdoor advertising operator) had displayed a large-format advertisement on a small part of a car park frontage in Manchester. Express consent had originally been granted in 2013 for a static display; after the five-year period ended (and no removal condition had been imposed), deemed consent arose. In 2021 the display was replaced with a digital screen (changing images). Manchester City Council then served a DN. The Secretary of State’s inspector dismissed the appellant’s appeal, finding substantial injury to amenity (but not being persuaded on highway safety).
The central legal dispute was the scope of the inquiry required when a DN is framed under Regulation 8(1)(b) in terms of discontinuing the use of the site for deemed-consent advertisements—particularly where (as here) the DN’s effect was said to cover all classes of deemed consent in Schedule 3.
Key issues
- Necessity and breadth: Must an inspector (or local planning authority) explicitly consider whether it is “necessary” to discontinue all deemed-consent classes, rather than only the existing display?
- Role of alternatives: Does the absence of a properly developed “alternative advertisement” case mean the inspector may lawfully confine analysis to the display actually on the site?
- Relationship to express consent: Does discontinuing deemed consent effectively “doom” future applications for express consent because the DN implies substantial injury across the board?
- Authority of Putney Bridge Approach Limited v SSCLG [2019] PTSR 1431; [2018] EWCA Civ 2268: does it govern the approach, and if so could/should it be revisited?
2. Summary of the Judgment
The Court of Appeal dismissed the appeal. In essence, it held that:
- The statutory test in Regulation 8(1) is whether the authority is satisfied it is necessary to serve a DN to remedy substantial injury to amenity (or danger to the public). Regulation 8(1)(b) does not require the decision-maker to assess every hypothetical deemed-consent class or every possible advertisement that might be displayed.
- There is no basis for implying an additional requirement that the inspector must separately justify, class-by-class, the withdrawal of all deemed-consent rights where the appellant has not properly advanced and evidenced a case that particular alternative deemed-consent advertisements would avoid the statutory harm.
- A DN affects deemed consent only; it does not prohibit applications for express consent. The existence of a DN may be a material consideration in any later express-consent application, but it is not necessarily determinative.
- Putney Bridge strongly supported this approach; and in any event the Court could not depart from it because the conditions in Young v Bristol Aeroplane Company Limited [1944] KB 718; [1944] 2 All ER 293 were not met.
3. Analysis
3.1 The statutory architecture: deemed consent, express consent, and discontinuance
The 2007 Regulations create two distinct routes to lawful advertisement display:
- Deemed consent (Regulation 6 and Schedule 3): automatic consent for defined classes subject to conditions/limitations (size, illumination constraints, location limits, time limits, etc.).
- Express consent: required where deemed consent does not apply (or where deemed consent has been disapplied, including by a DN).
Regulation 3 sets the general basis on which powers are exercised: “in the interests of amenity and public safety”. Regulation 8 is exceptional: it permits the authority to discontinue what would otherwise be automatically permitted, but only if the authority is satisfied it is necessary to remedy substantial injury to amenity (or danger).
Crucially, Regulation 8 draws a procedural/subject-matter distinction:
- Regulation 8(1)(a): discontinuance of a particular advertisement with deemed consent.
- Regulation 8(1)(b): discontinuance of the use of a particular site for display of advertisements with deemed consent.
3.2 The holding on “necessity” and the breadth of reasons required
A major theme in the appellant’s case was that the DN’s effect (as framed under Regulation 8(1)(b)) removed all Schedule 3 deemed-consent classes, so the inspector had to grapple with whether it was necessary to remove all those rights—otherwise the decision-maker would not be applying the “necessity” test properly.
The Court rejected that. It treated the text of Regulation 8(1) as setting an exhaustive test, and held that:
- No express or implied requirement exists in Regulation 8(1)(b) that the inspector must evaluate the impact of discontinuance across the universe of deemed-consent classes.
- Imposing such a requirement would be both unworkable and an impermissible gloss on clear statutory language.
The Court also grounded this in decision-making reality: where a party wants the decision-maker to differentiate between classes or retain some deemed-consent possibilities, it must do more than gesture at the point; it must put forward a properly articulated and evidenced alternative case so the inspector has a rational basis to address it.
3.3 Why focusing on the existing display was lawful on these facts
The inspector addressed the statutory test, found substantial injury to amenity, and upheld the DN. The appellant complained that the inspector focused on the display rather than the use of the site.
The Court regarded that criticism as misconceived in context:
- The inspector was entitled to decide the “use of the site” question on the evidence and submissions actually advanced, which were overwhelmingly about the existing structure’s scale, prominence, and relationship to recent redevelopment.
- The appellant had not developed (beyond listing possible Schedule 3 classes) a concrete case that any particular class—or any plausible alternative form of deemed-consent advertisement—could operate without engaging the same statutory harm.
- The inspector did, in any event, express a broader conclusion that the use of the site for advertisement displays undermined nearby development and the area’s appearance.
3.4 Precedents cited and their role
(a) Putney Bridge Approach Limited v SSCLG [2019] PTSR 1431; [2018] EWCA Civ 2268
Putney Bridge was the decisive backdrop. There, the DN was issued under Regulation 8(1)(b) but confined to a single deemed-consent class (Class 12: advertisements inside buildings). The building owner argued the authority had to be satisfied that no conceivable alternative illuminated advertisement could avoid harm.
Coulson LJ rejected that approach for reasons of:
- Construction: Regulation 8(1)(b) distinguishes “site” from “particular advertisement” and does not demand assessment of every hypothetical variant.
- Decision-maker restraint: a decision-maker need not stray beyond the parties’ cases.
- Practicality: an obligation to assess every conceivable advertisement would be unworkable.
- Express vs deemed: a DN ends deemed consent only; it does not bar express-consent applications, so its “draconian” character can be overstated.
In the present case, the Court held that factual differences (notably, the broader impact alleged here across all classes) did not undermine Putney Bridge as authority on the scope of inquiry and the absence of a duty to roam across hypotheticals. The Court’s reasoning substantially echoes Putney Bridge: if an appellant wishes to contend that a narrower discontinuance (or retention of some deemed-consent use) is appropriate, it must put that case forward with sufficient clarity and material.
(b) Finlay v Secretary of State for the Environment [1983] JPL 802 and Top Deck Holdings v Secretary of State for the Environment [1991] JPL 961 (and reference to M J Shanley Ltd v Secretary of State for the Environment [1982] JPL 380)
These cases were cited in Putney Bridge (and so informed the present Court’s approach) for an established public-law/planning proposition: a decision-maker is generally not obliged to “cast about” for alternatives (there, conditions) that the parties have not properly canvassed. Transposed to Regulation 8, the principle supports limiting the inquiry to the case actually advanced, rather than requiring inspectors to devise and evaluate unargued alternative advertisement scenarios.
The appellant argued, in the alternative, that if Putney Bridge means inspectors may uphold a Regulation 8(1)(b) DN by focusing on the existing display absent proposed alternatives, then Putney Bridge should be overturned.
The Court rejected that invitation on orthodox Court of Appeal comity: departure from its own prior decisions is only permitted within the narrow Young categories, none of which applied. The result is a firm reaffirmation that challenges to the Putney Bridge approach must normally be addressed in a higher court or through legislative amendment.
3.5 The Court’s treatment of express consent after a DN
A further plank of the appellant’s case was that Regulation 8 has a higher threshold (“necessary” to remedy “substantial injury”), so if a DN is upheld it effectively labels any advertisement use as causing substantial injury—thereby making any later express-consent application futile.
The Court rejected that as overstatement, aligning with Putney Bridge:
- A DN ends deemed consent; it does not legally bar express consent applications.
- The local planning authority must still determine an express-consent application on its merits under the appropriate statutory framework; the DN may be relevant, but not automatically determinative.
Notably, the Court also placed Regulation 8 in broader planning context by analogy with Article 4 directions under the Town and Country Planning (General Permitted Development) (England) Order 2015: planning law sometimes removes automatic rights in order to require case-by-case control, without making the underlying development impossible.
3.6 Impact and significance
The judgment consolidates a practical, party-led conception of Regulation 8(1)(b) appeals:
- Strategic burden on appellants (practical, not formal): If an operator wants to argue that discontinuance should be narrower (e.g., class-limited, size-limited, illumination-limited), it must provide workable alternatives and evidence. Bare assertions that other Schedule 3 classes exist are unlikely to compel a reasoned, class-by-class necessity analysis.
- Administrative efficiency: Inspectors are not required to perform an abstract, encyclopaedic audit of Schedule 3 possibilities whenever a DN is framed by reference to “use of the site”.
- Drafting incentives for LPAs: LPAs may be more willing to deploy Regulation 8(1)(b) where they consider the site context intrinsically problematic for deemed-consent advertising, without needing to anticipate and rebut every theoretical Schedule 3 scenario.
- Limits remain: The Court signalled that outcomes could differ where an appellant does advance a specific, evidenced alternative case for retaining some deemed-consent use; in such a case, adequate engagement and reasons would be required.
4. Complex Concepts Simplified
4.1 “Deemed consent” vs “express consent”
- Deemed consent: automatic permission for certain ad types listed in Schedule 3 (subject to strict conditions). No application is needed.
- Express consent: a bespoke permission granted following an application, assessed under the statutory considerations (amenity/public safety, relevant plan policies, etc.).
4.2 What a Discontinuance Notice does (and does not do)
- Does: removes the automatic permission to rely on deemed consent at the site (or for the particular advertisement, depending on whether Regulation 8(1)(b) or (a) is used).
- Does not: permanently forbid advertising. The operator can still apply for express consent, which must be determined on its merits.
4.3 The “necessity” and “substantial injury” threshold
5. Conclusion
City Outdoor Media Ltd reaffirms and extends the practical implications of Putney Bridge in the context of a site-based DN under Regulation 8(1)(b). The Court of Appeal confirmed that the Regulation 8 test does not oblige inspectors to undertake a free-standing assessment of all Schedule 3 deemed-consent classes or hypothetical advertisements. Unless an appellant properly advances a developed alternative case, the inspector may lawfully decide “necessity” by reference to the evidence and issues actually presented—often centring on the existing display and its site context.
The judgment thus provides clear guidance for future DN disputes: parties who want a narrower outcome must plead and evidence it; otherwise, Regulation 8(1)(b) remains an effective mechanism for withdrawing deemed-consent advertising rights where substantial amenity injury is found.