Putney Bridge Approach Ltd v The Secretary of State for Communities And Local Government & Anor

Factual and Procedural Background

The Appellant owns an office building known as Riverbank House located on the north side of the River Thames near Putney Bridge. On 6 October 2016, the Local Planning Authority (LPA) served a Discontinuance Notice (DN) on the Appellant requiring the discontinuation of the use of the site for displaying illuminated advertisements. Both the Appellant and the company operating the advertisements appealed the DN. An inspector appointed by the Respondent refused the appeals by Appeal Decisions dated 29 August 2017. The Appellant challenged these decisions in the Planning Court, but the challenge was rejected by Judge Ouseley on 6 December 2017. The Appellant was subsequently granted permission to appeal. The appeal concerns the scope of a DN relating to a site rather than a specific advertisement, the interaction between deemed and express consent regimes, and the obligation of the LPA or inspector to consider hypothetical alternatives to the existing advertisements before upholding the DN.

Legal Issues Presented

1. What is the proper scope of a Discontinuance Notice under Regulation 8(1)(b) of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, particularly whether it may relate to the use of a site generally rather than a particular advertisement?
2. How should the interplay between the 'deemed consent' and 'express consent' regimes be understood in the context of discontinuance action?
3. To what extent is the Local Planning Authority or planning inspector obliged to consider hypothetical alternative advertisements before serving or upholding a Discontinuance Notice relating to a site?

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that the inspector erred in law by failing properly to apply the Regulation 8(1) test, specifically that the DN should only have been served if it was necessary to remedy substantial injury to amenity caused by any form or size of illuminated advertisement anywhere within Riverbank House.
• The Appellant argued that the inspector should have confined the DN to the two particular advertisements on the building rather than the entire site.
• It was submitted that the inspector ought to have considered imposing conditions on the advertisements or considered alternative advertisements that might avoid substantial injury to amenity.
• The Appellant asserted that the DN's effect was "draconian," preventing any illuminated advertisement pursuant to deemed consent on the site.

Respondent's Arguments

• The Respondent argued that the DN was validly served under Regulation 8(1)(b) because the use of the site for illuminated advertisements generally caused substantial injury to the amenity of the locality.
• It was submitted that the LPA and inspector were not required to consider every hypothetical advertisement that might be displayed on the site before serving or upholding the DN.
• The Respondent maintained that the DN only affected deemed consent and did not preclude applications for express consent for advertisements that might be acceptable.
• It was contended that the DN’s broader scope was justified because the existing advertisements illustrated the nature of the harm caused by illuminated advertisements on the site.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by interpreting Regulation 8(1)(b) of the 2007 Regulations, which permits a Discontinuance Notice to be served requiring the discontinuance of use of a particular site for advertisements with deemed consent if necessary to remedy substantial injury to amenity. The court rejected the Appellant’s narrow interpretation that the LPA must be satisfied that no hypothetical advertisement could avoid such injury before serving a DN relating to the site. Instead, the court held that if the LPA reasonably concludes that the use of the site for advertisements generally is likely to cause substantial injury to amenity, a DN under Regulation 8(1)(b) is valid.

The court emphasized the distinction between deemed consent and express consent, noting that a DN only affects deemed consent and does not prevent applications for express consent for advertisements that might be acceptable. The court rejected the Appellant’s argument that the DN’s effect was overly broad or "draconian," explaining that the DN’s limited effect is to end deemed consent only, and express consent applications remain unaffected.

Regarding the scope of inquiry, the court held that the LPA and inspector are not required to consider every conceivable hypothetical advertisement before serving or upholding a DN. This is supported by established planning law principles and practical considerations, including the risk of breaching natural justice if the inspector were to consider alternatives without material provided by the parties. The court found that both parties focused their cases on the existing advertisements, and the inspector’s reasoning mirrored the parties’ submissions.

The court found the inspector’s planning judgment, which concluded that any illuminated advertisement on the site would substantially injure amenity, to be unassailable. The court agreed with Judge Ouseley’s reasoning that the inspector was entitled to uphold the DN as it was, without confining it to particular advertisements or imposing conditions.

Holding and Implications

The court DISMISSED the appeal, upholding the validity of the Discontinuance Notice served under Regulation 8(1)(b) on the basis that the Local Planning Authority and inspector were entitled to conclude that the use of the site for illuminated advertisements generally caused substantial injury to the amenity of the locality.

The direct effect of this decision is that the DN stands, discontinuing deemed consent for illuminated advertisements on the site, but it does not prevent the Appellant from seeking express consent for alternative advertisements. No new precedent was set beyond affirming established interpretations of Regulation 8 and the distinction between deemed and express consent regimes.