Background
King Media Limited held a 15-year lease permitting it to display an externally illuminated mesh advertising shroud, approximately 10 metres square, across the façade of 1 Great Eastern Street in Hackney. The building lies within the South Shoreditch Conservation Area and is identified as making a positive contribution to it. The advertisement had been displayed for more than 10 years under deemed consent.
Hackney Council served a discontinuance notice under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, asserting that the advertisement caused substantial injury to local amenity. A planning inspector dismissed King Media’s appeal, finding that the advertisement dominated and obscured the building, harmed the conservation area, and adversely affected occupants’ amenity. King Media sought statutory review under section 288 of the Town and Country Planning Act 1990, challenging the inspector’s reasoning, treatment of residential amenity and changed circumstances, and compliance with Article 1 of Protocol No. 1 to the European Convention on Human Rights.
The Court’s Holding
Mrs Justice Lieven dismissed the statutory-review claim on every ground. The inspector gave adequate reasons for finding harm to the conservation area and was not required to assign that harm a precise position on a scale. Her finding that the advertisement undermined the wider historic environment was not inconsistent with the agreed conclusion that it caused no harm to the setting of nearby listed buildings.
The Court held that “amenity of the locality” under regulation 8 can include the residential amenity of occupants affected by an advertisement. Although the inspector mistakenly stated that the parties agreed on that issue, King Media suffered no prejudice, and the inspector would in any event have reached the same result based on visual and conservation-area harm alone. The inspector also properly considered alleged changes in the locality; a material change in circumstances was relevant but was not a prerequisite to serving a discontinuance notice.
Assuming without deciding that deemed advertising consent was a “possession” protected by A1P1, the Court held that ending it without compensation was proportionate. The consent had always been subject to the statutory discontinuance regime, King Media remained able to seek express consent for another advertisement, and protecting the conservation area was a weighty public interest. The Council’s delay did not make the decision disproportionate because King Media had continued deriving substantial income from the advertisement during that period.
Key Takeaways
- An inspector assessing heritage harm need not state a precise level within the spectrum of harm if the decision letter otherwise explains the conclusion adequately.
- Residential living conditions may form part of the “amenity of the locality” considered when deciding whether an advertisement causes substantial injury under regulation 8.
- A discontinuance notice may proportionately end deemed advertising consent without compensation, particularly where the regulatory scheme was inherent in the consent and an application for express consent remains available.
Why It Matters
The judgment confirms that long-standing deemed consent does not immunize an advertisement from later discontinuance when an authority establishes substantial injury to local amenity. Nor must an authority prove that the surrounding area materially changed before taking action, although it must consider any material change that did occur.
The decision also clarifies the human-rights analysis applicable to deemed advertising rights. The absence of compensation is an important but non-determinative factor under A1P1, and courts will give significant weight to an inspector’s site-specific planning judgment while independently assessing proportionality.