More banner adverts

09.50 in adverts, banner, Boat Plans, co, duty, more, operate, the, to

(Third in an occasional series)

I drew attention in two previous posts to large banner adverts displayed in Venice (Monday, 13 February 2012) and in Paris (Tuesday, 7 August 2012). The point of those two posts was that even in very sensitive locations, in terms of the historic townscape, the authorities in those cities are prepared to allow the display of banner adverts on buildings which are shrouded during the execution of repairs and maintenance. Bearing in mind that such advertising displays are, by their very nature, temporary, there can be no serious objection to such advertising to hide the paraphernalia of building work and scaffolding. Where the work comprises conservation of the historic fabric, the advertising revenue could even contribute to the cost of restoration.

The essential point I was seeking to make, is that if the city authorities in Venice are prepared to allow such temporary banner adverts in a World Heritage Site, such as the Piazza San Marco or, if the City of Paris is happy to allow them in the Place Vendôme, then there really can’t be any objection to similar short-term adverts in this country, even in conservation areas or World Heritage Sites, where they serve to hide the detritus of building work. And there certainly can’t be any objection to such advertising in the average and often undistinguished town centres of many English towns and cities.

I visited Venice again a month or so ago and, as I had expected, the Doge’s Palace is now visible in all its glory, sans advertising, as is the Bridge of Sighs, which had been similarly hidden from view on my last visit. The east front of Sansovino’s Library, facing onto the Piazzetta is also now free of advertising, but restoration work is continuing on various other parts of the Palazzo Reale, and so banner adverts are currently displayed over the shrouding on the south front of the Zucca (facing onto the Mole) and also at the west end of the Piazza San Marco (the range added to the palace by Napoleon, and now forming part of the Museo Correr). The accompanying photos illustrate these adverts.

[The “Caro” adverts on the façade of the Museo Correr would probably have been there anyway, as they were advertising a display in the museum of sculptures by the British artist, Anthony Caro, which was part of the Biennale.]

I doubt whether we will ever overcome the precious attitudes of town planners in this country to outdoor advertising, and so the only practical way of ensuring that banner adverts can be displayed in future on buildings under repair (or awaiting demolition, such as the late unlamented Tollgate House in Bristol), without being obstructed or frustrated by over-zealous town planners, is to amend the Control of Advertisements Regulations to give deemed to consent to such adverts.

Uncle Eric has demonstrated his enthusiasm for flying flags; so perhaps he should now embrace the joys of outdoor advertising in the same way.

© MARTIN H GOODALL

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More banner adverts on shrouded buildings

09.05 in adverts, apologise, banner, Boat Plans, buildings, for, interruption, more, on, shrouded, the, we

(Fourth in an occasional series)

As I have pointed out on several previous occasions in this blog, there seems to be an unreasoning prejudice in this country against outdoor advertising. Whatever one may think of the overall control of advertisements regime, one aspect that particularly irritates me is the extreme reluctance of some local planning authorities (in fact, I suspect, a majority) to countenance large banner adverts on shrouded buildings while they are in course of demolition, reconstruction or repair.

I have in the past acted for one or two of the companies engaged in this type of advertising, but I am not currently retained by these clients and so I have no professional or commercial axe to grind. I simply think that this type of advertising can be beneficial, both as a means of hiding an eyesore while the building work is in progress and in helping to finance the restoration of the fabric, not to mention brightening up the townscape for a time.

Other countries do not seem to have the same hang-up with this type of advertisement display that we have in the UK. I have previously illustrated examples from both Paris and Venice, where large banner adverts have been erected around outstandingly important buildings in the most sensitive of settings – the point being that if such temporary advert displays are accepted by the authorities in those locations, then there can be no justification for resisting such displays on Grade I listed buildings located in a World Heritage Site in this country or in the most outstanding of conservation areas, and of course on many less important buildings in less sensitive environments.

I previously drew attention to a shroud advert in the Place Vendôme in Paris, and I found several further examples on my latest visit to Paris this year. The first of these is in the Place des Vosges (originally the Place Royale) in le Marais (the 4ème Arrondissement), one of the earliest town squares in Europe (if not the earliest) – completed in 1612. Cardinal Richelieu lived here from 1615 to 1627, and Victor Hugo’s house in the south-east corner of the square is open to the public.

The banner advert here is at the north end of the eastern side of the square, next to the junction with the rue du Pas de la Mule. As the rubric on this and the other advertisements illustrated here clearly states: “Cet affichage contribue au financement de la restauration de l’immeuble.” Précisément!


At night this advert is externally illuminated, as seen in the next shot.

An even larger banner advert is to be seen on the south front of the range of public buildings that house le Palais de Justice, le Conciergerie and Sainte-Chapelle on l’Île de la Cité (in the 1er Arrondissement). This advert fronts onto Quai des Orfèvres and le Pont Saint-Michel.

A third example can be seen at the junction of rue Auber and rue Scribe (in the 9ème Arrondissement) immediately opposite the monumental Opéra Garnier. There is a good view of it from the roof terrace of les Galeries Lafayette (as shown in a second photo below).

In these various shroud displays, the advertising material does not cover the whole of the shroud, so there is also a representation of at least part of the building façade in these displays, which gives an indication of the structure of the building lying behind the shroud.

The three examples illustrated here are representative of the type of banner adverts on shrouded buildings that are clearly acceptable in such cases, even where heritage assets of the highest value are involved, in very sensitive locations. The essential point is that these displays are by their nature temporary and, as the displays illustrated here explicitly state, they contribute to the funding of the restoration of the building (as was clearly also the case in the examples from Venice to which I drew attention in earlier posts).

It seems that LPAs (and even the Planning Inspectorate) remain very reluctant to grant advertisement control consent for such displays, and so the only sensible course of action would be to amend the Control of Advertisements Regulations so as to grant deemed consent to these displays. Planning ministers have shown great enthusiasm for cutting through red tape in the planning system, particularly through the medium of extended permitted development rights, and so an amendment of the Control of Advertisements Regulations ought perhaps to commend itself to Eric Pickles and Nick Boles.

© MARTIN H GOODALL

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Uses restricted by condition some further thoughts

13.40 in adverts, banner, Boat Plans, buildings, by, condition, further, more, on, restricted, shrouded, some, thoughts, uses

In two previous blog posts (“Can conditions preclude Permitted Development?” on Friday, 18 October 2013, and “Conditions that fail to prevent Permitted Development” on Monday, 24 March 2014) I discussed the circumstances in which a condition attached to a planning permission may preclude the operation of section 55(2)(f) of the 1990 Act and Article 3(1) of the Use Classes Order and/or Article 3(1) and Part 3 of the Second Schedule to the General Permitted Development Order – in other words, the right to use the land or building in question for other purposes within the same Use Class and/or to make any of the changes of use that are (or would otherwise be) Permitted Development.

Since then, I have been considering some other judicial decisions on this issue that may shed further light on the topic, although I am bound to say that these judgments have left the position far from clear.

First of all, as I have previously pointed out, a condition that expressly refers to either the UCO or the GPDO can certainly prevent the operation of those Orders. It is perhaps worth noting in this connection that the model conditions that were previously recommended (in Circular 11/95) read:

"The premises shall be used for......…and for no other purpose (including any purpose in Class........… of the Schedule to the Town and Country Planning (Use Classes) Order 1987, or in any provision equivalent to that Class in any statutory instrument revoking and re-enacting that Order with or without modification."

and

“Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) Order 1995 (or any order revoking and re-enacting that Order with or without modification) no....[specified development]........shall be [carried out].”

A problem only arises where those words, or very similar words have not been used.

In my first article, I argued that a condition which simply prohibited other uses without referring to either or both of these two pieces of subordinate legislation could not be taken to preclude their operation. My view (particularly with regard to the GPDO) was based on the proposition that a condition could not prevent an application for and grant of a fresh planning permission for a change of use to any of the uses that the original condition sought to prevent. If granted, the planning permission would supersede the previous permission (and its conditions) and this is exactly what Part 3 of the Second Schedule to the GPDO does; i.e. it grants planning permission (subject to certain requirements being met) for a further change of use. It was on this basis that I argued that a condition that does not expressly preclude the operation of the GPDO cannot therefore have the effect of preventing this permitted development.

Judicial support for this proposition, and for a similar approach to the operation of section 55(2)(f) and Article 3(1) of the Use Classes Order, can be found in the High Court judgment in Carpet Decor (Guildford) Ltd v. SSE [1981] JPL 806 and in the subsequent decision of the Court of Appeal in Dunoon Developments Ltd -v- SSE [1992] JPL 936, as discussed in the second of my two previous articles.

However, I am aware of two or three other judgments that have gone the other way, and the purpose of this third article is to examine these, and to attempt to form a view as to their effect on this issue.

The first of these was City of London Corporation v. SSE (1971) 23 P&CR 169 (which predated both Carpet Decor and Dunoon Developments). In that case, the wording of the condition was that "the premises shall be used as an employment agency and for no other purpose." This was held to operate effectively to exclude the operation of the Use Classes Order.

In Rugby Football Union v SSETR [2001] EWHC 927, the court considered a condition relating to stands at Twickenham Rugby Football Ground, which was worded that the stands "shall only be used ancillary to the main use of the premises as a sports stadium and for no other use." The argument that the words did not exclude the Use Classes Order was rejected by the court on the ground that the words for no other use were clear. They had no sensibly discernible purpose than to prevent some other use which might otherwise be permissible without planning permission, for example under the Use Classes Order (by virtue of section 55(2)(f)). The judge was satisfied that those words met the test of being sufficiently clear for the exclusion of the Use Classes Order.

A more recent decision - R (Royal London Mutual Insurance Society Limited) v. SSCLG [2013] EWHC 3597 (Admin) - related to planning permission for the construction of a non-food retail park comprising 5 units. This permission contained a condition which provided that: "The retail consent shall be for non food sales only in bulky trades normally found on retail parks which are furniture, carpets, DIY, electrical goods, car accessories, garden items and such other trades as the council may permit in writing." The stated reason for the condition was to ensure that the nature of the scheme would not detract from the vitality and viability of the nearby town centre.

The appellant sought a Lawful Development Certificate to confirm that they were entitled to use these retail units for any purpose within Use Class A1 of the UCO (i.e. not limited to the categories specified in the condition). On appeal against the council’s refusal of a certificate, the Inspector found that, on a fair interpretation, the use of the word only was effectively the same as the phrase and for no other purpose, especially when the condition was read in its entirety. When read alongside the reason and in the context of the permission as a whole, the Inspector found that the condition prevented the exercise of rights under the Use Classes Order (i.e. to use the premises for other purposes falling within Use Class A1).

When the matter came before the High Court, it was held that the reason for imposing a condition is important in understanding the objective of the condition. It is publicly available as part of the planning permission. To ignore it or to fail to have regard to the reason would operate as an unnatural and unnecessary constraint on an interpretation of the condition. This condition was intended to provide an on going mechanism to maintain the retail health of the town centre. In the Court’s judgment, that is what a reasonable reader of the condition would discern - namely, a non food retail consent only, with sales permitted of bulky goods within certain main sectors so as not to cause any material harm to the retail health of the town centre.

The Court specifically considered whether the wording of the condition might be insufficiently clear and unequivocal in its terms as to exclude the operation of the Use Classes Order. However, the judge regarded the use of the word "only" as emphatic. It meant solely or exclusively. That was its plain and ordinary meaning. This would prevent any retail sales other than those stipulated of a non food nature.

The Court did not agree that the absence of the words for no other use (in contrast with the Rugby Union case) made any difference in this regard. The condition before the court in the Royal London Insurance case could also be distinguished from Dunoon Developments, where there was nothing more than a restrictive description of the use in the relevant condition that might potentially (but did not in practice) exclude the Use Classes Order.

In Royal London Insurance there was a planning permission which, read as a whole, including Condition (3), set out what was permitted. Condition (3) restricted the ambit of Class A1 uses. It would be logically inconsistent to construe Condition (3) as carefully limiting A1 uses on the one hand, but then to argue that A1 use is unrestricted and permitted on the other. The condition only made sense if there was an implied exclusion of the Use Classes Order and Class A1 rights. In the Court’s judgment, this was achieved by the words used in the condition.

The first comment I would make in light of these judgments is that the decision of the Court of Appeal in Dunoon Developments should not be lightly set aside. I drew attention in my second article, on 24 March, to the clear words of both Farquharson LJ and the Vice-Chancellor, Sir David Nicholls. These words must be taken as an authoritative statement of the legal position in this regard. It follows that the other cases to which I have referred must, to a greater or lesser extent, have been dependent on their facts.

If any further refinement of the general proposition can be derived from these other cases it is perhaps that if, read as a whole and in context, the clear words of the condition (including the stated reasons for its imposition) leave no doubt that the planning permission that is being granted is only for a strictly limited use, then it may be effective to preclude the operation of either or both of the UCO and the GPDO, even though these are not expressly referred to. So, for example, in the Royal London Insurance case, the condition was explicitly intended to ensure that the development would not detract from the vitality and viability of the named town centre.

By contrast, I suggest that a vaguely worded reason (for example, “to enable the local planning authority to retain control over such uses in future” or some similar rubric) is unlikely to cut the mustard, especially bearing in mind that the procedural advice from ministers (as set out in the NPPG) continues to be firmly against conditions that purport to preclude the operation of section 55(2)(f) and Article 3(1) of the UCO or Article 3 and the Second Schedule to the GPDO. The very fact that there were until very recently model conditions (in Circular 11/95) that recommended explicit wording for such conditions is another persuasive factor which indicates that the general rule in Dunoon Developments should be applied in the absence of a very clear intention (backed up by a clearly stated and specific planning reason for the imposition of the condition) to preclude the operation of the statutory provisions.

[UPDATE: I noticed after writing this piece that "Annex A" to Circular 11/95 (model conditions) was not cancelled along with the rest of the circular. This was presumably meant to refer to APPENDIX A, where the model conditions quoted above (48 and 50 respectively) are to be found. This further strengthens the point that I sought to make.]

NOTE: This topic is more fully discussed in the author’s new book - “A PRACTICAL GUIDE TO PERMITTED CHANGES OF USE” published by Bath Publishing in October 2015. You can order your copy by clicking on the link on the left-hand sidebar of this page.

© MARTIN H GOODALL

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Blowing our own trumpet

17.10 in adverts, banner, blowing, Boat Plans, more, our, own, trumpet

Some readers may possibly be under the impression that, because I write this blog as a personal project, I am just a one-man band, but I am in fact just one member of Keystone Law’s Planning Law Team, an integral part of our Commercial Property department. Keystone Law is a full-service commercial law firm, with its main office in London but practising throughout the whole of England and Wales. It currently has 142 senior lawyers and is continuing to expand at a rate of approximately 30 lawyers per annum, so there is every prospect that we shall have 200 lawyers in the firm by the end of 2015. Our client base is predominantly made up of private companies, although we also offer some private client services, and quite a few of our planning clients are individuals or small businesses.

There is a saying that if you don’t blow your own trumpet no-one else will blow it for you, so I make no excuse for passing on news of our firm’s further expansion. On 21st October 2013, Keystone became an Alternative Business Structure (“ABS”), a new law firm model regulated by the UK’s Solicitors’ Regulation Authority. The ABS is a more flexible corporate structure.

The firm began its international roll-out in July 2013 with the establishment of its off-shore office in Guernsey. Three additional jurisdictions are currently in the pipeline. Keystone Law is now launching its Australian practice, and aims to attract an initial team of 25 senior solicitors in that country before client work commences in March 2014. Thereafter Keystone expects to recruit an additional 50 solicitors in Australia. The head office will be in Sydney, from where Keystone’s legal practice will cover the whole of Australia. I can’t say yet whether our Australian operation will include planning law, but there’s no reason why it shouldn’t.

Despite Keystone Law’s increasing size and stature in the provision of legal services, we pride ourselves on personal service, and will continue to maintain the same high standard of client care for which we have a well-deserved reputation. Keystone has won a plethora of legal and business awards during the past 10 years, most recently a Law Society Award for Excellence which it received on 22nd October 2013.

Our central admin team have recently taken a lease of another floor of the building they occupy in central London, thus providing a much-needed doubling of the accommodation for our back office operation, and on 1st November we shall be moving our Bristol office into smart new premises in the city centre – another welcome development.

That’s the end of the commercial break. This blog was never intended to be a marketing exercise. It has admittedly generated a great deal of planning work for us (and I am fond of referring to this as “marketing by mistake”), but it really is written only for fun, and I am hoping that I may be able to post items here more regularly in future than I have managed in the recent past. The readership seems to have settled down at around 30,000 page views a month, and so my aim will be to maintain the interest of these readers in the months and years to come.

© MARTIN H GOODALL

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Shroud adverts on large buildings

03.48 in adverts, Boat Plans, buildings, large, on, shroud

I was pleased to see a report of a planning appeal decision earlier this month in London , in which an Inspector had allowed an appeal against the refusal of advertisement control consent for the display of a large shroud advert on the scaffolding around a building awaiting or undergoing refurbishment.

The Inspector very sensibly decided that an advertisement display of this type would be preferable to ‘drab’ sheeting round the building, and that the shroud advert would ‘enliven the street scene’. This seems to have overridden arguments by the LPA that the advert would be a prominent feature close to a conservation area (although not actually in it).

The essential point is that this display will be purely temporary, while the works on the building are being carried out, a fact which many LPAs seem entirely to overlook. Clearly, the inspector was satisfied that any alleged detriment to amenity would be outweighed by the advantage of the ugly plastic sheeting that normally covers such developments being hidden by a lively and attractive advert.

I very much hope that other inspectors will follow this lead, although it would be unnecessary for these matters to be disputed in this way if the Control of Advertisements Regulations were amended to allow temporary shroud advertising of this type where a building is covered in scaffolding and plastic sheeting during building works.

© MARTIN H GOODALL

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