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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ocean Outdoor UK Ltd v Secretary of State for Housing, Communities and Local Government & Ors [2025] EWHC 901 (Admin) (11 April 2025) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2025/901.html Cite as: [2025] EWHC 901 (Admin)

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IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
IN THE MATTER OF A CLAIM UNDER SECTION 288
OF THE TOWN AND COUNTRY PLANNING ACT 1990

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/04/25

This judgment was handed down remotely at 10am on 11 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Timothy Corner KC:

INTRODUCTION

1. This is a claim for planning statutory review of a decision by the First Defendant on 14 May 2024 dismissing the Claimant's appeal against the refusal by the Second Defendant of consent to display an advertisement.
2. By order of 24 July 2024 Lang J refused permission to bring the claim on the grounds that the three original grounds were unarguable. The Claimant renewed its application for permission and at an oral hearing on 28 November 2024 Sir Peter Lane granted permission for the claim to proceed on grounds 1, 1(a) and 3.
3. The claim as argued before me is on three grounds, which I summarise as follows, using wording from the agreed list of issues:

a. Ground 1; the First Defendant, by her Inspector, in legal error in breach of the common law duty of fairness, unfairly failed during the appeal to consider providing, or to provide, a prior fair opportunity to the Claimant to verify if active marketing of the Alfa Laval Site had been or was occurring.

b. Ground 2: the First Defendant, by her Inspector, in legal error in breach of the common law "Tameside" duty during the appeal, failed to acquaint herself with relevant information about the active marketing of the Alfa Laval Site.

c. Ground 3; the First Defendant, by her Inspector, in legal error failed to consider the objective differences between Policy CC5 of the Local Plan and the First Defendant's Planning Practice Guidance cited at paragraph 8 of the decision letter and failed to draw a conclusion as between those differences concomitant with regulations 3(1) (a) and (b) of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007.

FACTUAL BACKGROUND

4. The site of the advertisement subject of this appeal is the former Alfa Laval building, Great West Road, Brentford, Middlesex, TW8 9AX ("the Site").
5. The former Alfa Laval building itself– the "Building" – is a former office block comprising a tower of about 10 storeys standing next to the elevated section of the M4 west of Junction 2. The tower previously had a 2-storey podium base which has now been demolished. The Site was once a part of the wider Alfa Laval and Baltic Centre complex, which since the demolition in 1996 of the remainder of the complex adjacent to the Building has been redeveloped piecemeal.
6. Since 1998, the Building has stood empty and subject to ongoing vandalism and is agreed to be an eyesore.
7. Since 2002, the Building has had an extensive planning history. Express consents for display of advertisements were granted under the then Town and Country Planning (Control of Advertisements) Regulations 1992 (the "1992 Regulations"), and subsequently under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 ("the 2007 Advertisement Regulations").
8. In a decision of 5 July 2007 granting consent on an appeal under the 1992 Regulations for the display of a "package" advertisement on an open mesh weave display shroud before any planning permission had been granted to redevelop the Building, the First Defendant stated that the Building was "clearly an eyesore", being "run down and abandoned" and "not a pleasant sight for residents". In consenting the proposed shroud, the First Defendant stated that the "hiding" of the Building by a themed hoarding shroud was an "undoubted improvement", the high-level illuminated advertisement would not be harmful and unrelated to the domestic area at ground level, the advertisement would not result in a harmful impact on neighbours in terms of over-dominance or illumination and that no safety or highways issues arose. The First Defendant consented the advertisement display for a "temporary period of 2 years as a mixed-use redevelopment scheme is currently before the [Second Defendant]". Condition (1) required the removal of the advertisement after two years, as paragraph 16 of the decision letter explained: "if the redevelopment of the site is not going ahead after that time".
9. The Second Defendant granted further consents for the display of advertisements on 9 July 2009 and in May and November 2012. On 16 April 2014 the Second Defendant approved the retention an advertisement on the building for a "temporary period of two years".
10. There have been various planning permissions for redevelopment of the Site, dating back to 6 December 2012. On 17 August 2016, the Second Defendant granted conditional planning permission ("the 2016 planning permission") for the redevelopment of the Building for: "Change of use to car showroom (sui generis) and extension of existing building to include ancillary facilities, car parking, MOT testing, repair, [and] servicing". Condition 1 required the development to begin within three years. The approved drawings showed an advertisement display on the Building's western elevation – the same elevation as had been previously expressly consented for the display of an advertisement.
11. On 15 January 2018, on an appeal under the 2007 Advertisement Regulations by a third party and the Third Defendant, the First Defendant granted consent for the display of an advertisement 14.32m high by 11.52m wide, integrated within the western elevation of the Building as redeveloped for a car showroom permitted by the 2016 Planning Permission, for a period of 25 years. That display required the erection of the western elevation pursuant to the 2016 Planning Permission in order to provide the necessary physical support.
12. Before development pursuant to the 2016 Planning Permission was begun (for the purposes of section 56 of the Town and Country Planning Act 1990 – "the 1990 Act"), the then owner of the Building applied to the Second Defendant for temporary advertisement consent but this was refused on the 31^st May 2018. On 13 November 2019, after a hearing, the First Defendant granted advertisement consent for the temporary period sought, noting that the Building was an "eyesore".
13. Meanwhile, in early 2019, the Third Defendant began development pursuant to the 2016 Planning Permission by commencing demolition work to the west elevation of the Building at ground level. In June 2019, following a review by the Third Defendant, the demolition was halted and the redevelopment ceased.
14. In 2019, the Third Defendant made an application for prior approval for redevelopment of the Building to provide flats. The Second Defendant refused the application.
15. On 13 November 2019, the First Defendant consented the display of an advertisement of 14m width and 25m height, under the 2007 Advertisement Regulations. The reasons set out in the decision letter included that a "further temporary display linked to the undertaking and completion of the redevelopment works I would conclude to be reasonable as a means of ameliorating the visual impact of the tower in the meantime".
16. On 17 November 2021, an application for advertisement consent was made to the Second Defendant for a display on the Building of 26.9m width by 20.7m height. On 25 January 2022, the Second Defendant granted consent for 24 months from 1 January 2022 to 31 December 2023.
17. On 20 June 2023 the Claimant applied to the Second Defendant for consent to display advertisements on the Building comprising: "an externally illuminated advertisement within an art deco shroud design on the west elevation for a 24 month period" between 1^st January 2024 and 31^st December 2025.
18. On 4 August 2023, a third party describing itself as "Brentford Voice", submitted representations about the application for consent and asserted: "Although apparently still on the market, there is no proactive marketing".
19. There is no evidence of the Second Defendant exercising its power under Regulation 12 (b) of the 2007 Advertisement Regulations to seek verification of the information submitted by the Claimant.
20. The application was dealt with by Officers under delegated powers. The Officer's Report ("OR") noted:

-at paragraph 1.2, that development under the 2016 Planning Permission had been begun;

-at paragraph 5.7, that the locality of the Building had been "completely redeveloped", that the Building was the "final part of this wider regeneration", and that the display on the east elevation of the Building had been removed whereas the shroud on the west elevation remained;

-at paragraphs 5.10 to 5.11, that the previous assumption was that the displays were "temporary to prepare for building works. However, though the site has been approved … that proposal has never materialised since 2016. The Cover Letter in this application suggests that the temporary advert consent would allow the new owner of the tower [the Third Defendant] to continue to search for a viable regeneration proposal for the site. However, with no concrete timeline to develop the site, allowing the current proposal not only leaves the site other than the advert display derelict but also offers the display a sense of perpetuity".

21. The OR recommended that consent be refused and on 24 August 2023 the Second Defendant refused consent. The reasons for refusal were:

"1. The proposed consent extension for an externally illuminated advertisement within an art deco shroud design on the West elevation for a 24 month period, by reason of its size, position and illumination characteristics, would harm the amenities and living conditions of the occupants of nearby residential properties. The advert would therefore be contrary to the intent of Local Plan Policy CC5 and NPPF Paragraph 136.

2. The proposed consent extension for an externally illuminated advertisement within an art deco shroud design on the West elevation for a 24 month period, by reason of lacking a certificate from a Street Lighting Engineer, could distract drivers and result in a decline in highway or pedestrian safety. The advert would therefore be contrary to the intent of Local Plan Policy CC5 and NPPF Paragraph 136."

22. In October 2023, the Claimant appealed to the First Defendant against the refusal of consent. The Claimant submitted a Statement of Case stating in paragraph 1.3 that the Building was in a "significant state of disrepair", an "eyesore", and that: "Whilst a viable regeneration solution is sought, the tower has been shrouded, with ongoing maintenance of the shroud secured and associated advertisements located on the tower. The Appeal Scheme seeks to extend the shroud and associated advertisement for a further 24 month period whilst a regeneration solution is sought".
23. In suggested corrections to my draft judgment, I was asked to consider calling the Claimant's Statement of Case a "Hearing Statement of Case." I do not think it is appropriate to add the word "Hearing" to the words "Statement of Case." The document in question was headed "Statement of Case", not "Hearing Statement of Case" and is referred to as such in the list of appeal documents at section H of the appeal form. Clearly, the Claimant hoped that the appeal would be determined after a hearing, but there was no guarantee that the Claimant would be granted a hearing by the First Defendant. As I say later, it was for the First Defendant to decide whether the appeal should proceed by way of a hearing or by written representations. I also note that at paragraph 1.7 of the Statement of Case, which follows the Claimant's request for a hearing and reference to submission of a Statement of Common Ground, it is said "Notwithstanding the above, this Statement of Case has been prepared as a Full Statement."
24. The Claimant made representations in paragraphs 1.4 to 1.5 of the Statement of Case about the mode of Appeal:

"1.4 In this instance and having regard to the Procedural Guidance, the particulars of the Appeal Scheme, and the extensive and complex site history, it is considered appropriate to progress this appeal by way of a Hearing. The Procedural Guidance sets out that hearings are appropriate where the inspector is likely to need to test the evidence by questioning or to clarify matters.

1.5 In this instance, the proposal raises complex matters of amenity and technical detail where it is considered necessary for the inspector to investigate such matters through detailed discussion. Hearings regarding advertisement consent at the Appeal Site occurred in 2007, 2016 and 2017, and the matter has been previously assessed by Public Inquiry following a Consent Order to quash a prior appeal decision…"

25. The Statement of Case then set out a Rebuttal of the OR. In particular, it was noted at paragraph 3.43 that there had been "no complaints whatsoever" from any individual regarding the advert since its installation, that there had been "no objections" to the application for consent and that, as paragraph 3.71 noted, there had been only a single objection – from an unidentified third party styled as "Brentford Voice". The Statement of Case addressed Brentford Voice's objection in paragraphs 3.50 – 3.55 of the Statement of Case, set out below.
26. Paragraphs 3.50 – 3.58 of the Claimant's Statement of Case set out a rebuttal of the OR and the objection by Brentford Voice:

"3.50 The officer report goes on to state that with 'no concrete timeline to develop the site … the current proposal not only leaves the site other than the advert display derelict but also offers a sense of perpetuity'. The officer considers that 'the effect of the proposal should not be measured in just 24 months [and] the harm to amenities of surrounding occupants … would be medium-term effect and is not acceptable'.

3.51 The Officer Report has failed to consider efforts by the site owner [the Third Defendant] to seek a regeneration solution at this site.

3.52 Although the site has extant implemented consent for a new car showroom, it was identified in 2019 that the proposals were no longer viable. Since this point, Hyundai Motor UK has actively marketed the site for sale through their appointed agents.

3.53 Although Hyundai Motor UK have undertaken detailed discussions with a number of interested parties, to date there have been no proceedable offers to purchase the Site that have reached the point of sale. Hyundai Motor UK continues to actively market the site and remains open to viable offers from interested parties.

3.54 Additionally, it is noted plans were also prepared to secure the residential use of the building under a Class O application…, which was not allowed by the Council.

3.55 It is considered therefore that the ongoing shroud and associated advert continues to support the regeneration objectives in appropriate locations…

3.58 Therefore, the Appeal Scheme is considered to be in full accordance with policies CC1, CC5 and D8 [of the Local Plan] and considered to be well sited and designed in accordance with NPPF paragraph 136."

27. On 20 October 2023 the First Defendant decided that the appeal should be decided on the basis of written representations, stating:

"There appears to be no requirement for the Inspector to clarify anything via oral questioning. However, should anything emerge later in the appeal to warrant discussion the procedure will be reviewed."

28. On 14 May 2024, the First Defendant's Inspector dismissed the appeal, for reasons given in her decision letter ("[DL]"). She said:

"8. The Planning Practice Guidance (PPG) [dated 6^th March 2014] explains that: 'Buildings which are being renovated or are undergoing major structural work and which have scaffolding or netting around them may be considered suitable as temporary sites for shroud advertisements or large 'wrap' advertisements covering the face, or part of the face, of the building'. All parties and previous Inspector's decisions I have been made aware of agree that the shrouding with advertisement fixed to the tower has concealed its dilapidated appearance, and this has been a material mitigating consideration as an 'improvement' to the local amenity as stated in a previous Inspector's decision. Both Inspector's decisions agreed it suitable based on a temporary basis whilst redevelopment of the tower comes forward. I am however mindful that both these appeal decisions date from 2007 and 2019 respectively whilst the tower continues to be shrouded.

9. I am informed that work had commenced on the tower to implement permission for the Hyundai car dealership and garage, but has since ceased, and as such the advertisement is becoming an established part of the local street scene. To my mind, this is not what is envisaged by the PPG.

10. Although the appellant states that the shrouding is still necessary to mitigate the effects of the visual disrepair to the tower and to control falling debris whilst the owner of the building await a potential buyer, nevertheless, from the information before me, there is no substantive evidence to demonstrate that the current owners are likely to find a buyer within the remaining months of the twenty four month renewal period they sought consent from the council. In the meantime, the tower continues to decay. I have seen no evidence of genuine interest in redeveloping the building from the appellant. Neither is there evidence presented with the appeal to verify that the tower is being 'actively marketed' for sale, according to the appellant. I am informed of a previous application to develop the site into residential use through the Class O prior approval process in around 2019, but this was not a realistic proposition due to its abandoned characteristics…

13. I am fully conscious that an unshrouded tower in its current condition would undoubtedly be a blot on the landscape adversely affecting the amenity of the local area. However, there is no convincing evidence of the owner of the site 'actively seeking a viable regeneration solution' but there are means the Council can impose upon its owners to improve its neglect. Furthermore, the appellant can explore other methods to better its condition besides the consent before me….

15. For the reasons given and having regard to all other matters, the appeal is therefore dismissed."

29. Evidence was put before me from Mr Read of the Claimant's planning consultants and Mr Tunnell, Business Transformation Director for the Third Defendant. Mr Tunnell gave evidence about active marketing of the Site. This evidence, which was not substantially disputed by the First Defendant, was not before the Inspector. It was agreed that this information could have been made available at the time of the appeal had it been requested by the Inspector. In summary, on 5 June 2019 the Third Defendant appointed sales agents Avison Young to actively market and sell the Building, and a marketing brochure was produced in July 2019 which showed the Building and described its redevelopment potential for a car showroom and for residential development. In February 2020 the Third Defendant commissioned additional sales agents Savills and Knight Frank to market the Site. Numerous conditional offers were received between 2019 and 2022, but none was commercially acceptable to the Third Defendant. In Autumn 2023 the offer that had been made in July 2022 was withdrawn.

LEGAL FRAMEWORK

Control of Advertisements

30. Chapter III of Part VIII of the 1990 Act deals with control of advertisements. Section 220 provides that regulations shall make provision for "restricting or regulating the display of advertisements so far as appears to the [First Defendant] to be expedient in the interests of amenity or public safety." By section 222, where the display of advertisements in accordance with regulations made under section 220 involves development of land, planning permission for that development shall be deemed to be granted and no application for planning permission under Part III shall be necessary.
31. Section 224(3) and (8) provide that it is a statutory offence to display an advertisement without express consent. This is not the case with development without planning permission; such development is not an offence. Rather, it is an offence to fail to comply with an enforcement notice issued under Part VII of the 1990 Act.
32. Pursuant to section 220(1), the First Defendant has made the 2007 Advertisement Regulations. Under the scheme of the 2007 Advertisement Regulations, it remains an offence to display an advertisement without consent. Reg. 30(1) provides for fines for the commission of the statutory offence.
33. The 2007 Advertisement Regulations provide for types of consent that include, under reg. 4(1)(a) "express consent". By reg. 2(1), "site" means "any land or building, other than an advertisement, on which an advertisement is displayed". By reg. 4(1)(a), "express consent" is required for the display of an "advertisement". By reg. 9(1), an application for express consent must be made to the local planning authority, and by reg. 9(11) an application for renewal of an express consent may not be made more than 6 months before the date on which the consent is due to expire. In what follows, I will use "consent" to refer to "express consent."
34. By reg. 12(b), on receipt of an application for consent, the local planning authority has a power to direct the production of evidence to "verify" any particulars or information given to the authority. Reg.13(1) requires the local planning authority ("LPA") to consult on an application.
35. Reg. 14(1) empowers the LPA to grant consent, with or without conditions, or to refuse consent.
36. By reg. 3:

"(1) A local planning authority shall exercise its powers under these Regulations in the interests of amenity and public safety, taking into account-

(a) the provisions of the development plan, so far as they are material; and

(b) any other relevant factors.

(2) Without prejudice to the generality of paragraph (1)(b)-

(a) factors relevant to amenity include the general characteristics of the locality, including the presence of any feature of historic, architectural, cultural or similar interest;

(b) factors relevant to public safety include—

(i) the safety of persons using any highway,…

(ii) whether the display of the advertisement in question is likely to obscure, or hinder the ready interpretation of, any traffic sign, railway signal or aid to navigation by water or air;

(iii) whether the display of the advertisement in question is likely to hinder the operation of any device used for the purpose of security or surveillance or for measuring the speed of any vehicle.

(3) In taking account of factors relevant to amenity, the local planning authority may, if it thinks fit, disregard any advertisement that is being displayed.

(4) Unless it appears to the local planning authority to be required in the interests of amenity or public safety, an express consent for the display of advertisements shall not contain any limitation or restriction relating to the subject matter, content or design of what is to be displayed."

37. By Part 4 of Schedule 2 to the 2007 Advertisement Regulations, under section 78(1) of the 1990 Act (as modified) the applicant may appeal to the First Defendant. By section 79 (again as modified) the First Defendant may allow or dismiss an appeal, reverse or vary the decision of the local planning authority and may deal with the application as if made to her in the first instance.

Determination of Procedure under the Town and Country Planning Act 1990 for Advertising Appeals

38. The 1990 Act regulates the procedure for an appeal under the 2007 Advertisement Regulations.
39. By section 319A of the 1990 Act:

"(1) The Secretary of State must make a determination as to the procedure by which proceedings to which this section applies are to be considered.

(2) A determination under subsection (1) must provide for the proceedings to be considered in such one or more of the following ways as appear to the Secretary of State to be appropriate —

(a) at a local inquiry;

(b) at a hearing;

(c) on the basis of representations in writing.

…

(4) A determination under subsection (1) may be varied by a subsequent determination under that subsection at any time before the proceedings are determined.

(5) The Secretary of State must notify the appellant or applicant (as the case may be) and the local planning authority of any determination made under subsection (1).

(6) The Secretary of State must publish the criteria that are to be applied in making determinations under subsection (1).

(7) This section applies to – …

(b) an appeal under section 78 against a decision of a local planning authority in England; …"

Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2009

40. The Town and Country Planning (Appeals)(Written Representations Procedure) (England) Regulations 2009, as amended subsequently ("the 2009 WR Regulations"), apply where an Advertisement Consent Appeal is made under the 2007 Advertisement Regulations and the First Defendant has determined under section 319A of the 1990 Act that the appeal is to be determined on the basis of representations in writing.
41. Part 1 of the 2009 WR Regulations provides for the procedure for advertisement consent appeals (excluding appeals against conditional consents) and some planning appeals. Reg. 4 provides for notification of receipt of an appeal by the First Defendant and advice that the Part 1 procedure will be followed.
42. Reg. 7 provides:

"(1) The notice of appeal and the documents accompanying it shall comprise the appellant's representations in relation to the appeal.

(2) The completed questionnaire and documents sent with it shall comprise the local planning authority's representations in relation to the appeal.

(3) The Secretary of State shall, as soon as practicable after receipt, send a copy of the representations made by the local planning authority to the appellant and shall send a copy of the representations made by the appellant to the local planning authority."

43. Reg. 8 provides:

"(1) The Secretary of State may in writing require the appellant, local planning authority and other interested persons, to provide such further information relevant to the appeal as may be specified.

(2) Such information must be provided in writing within such period as the Secretary of State may specify.

(3) The Secretary of State may disregard any further information unless that information has been requested pursuant to paragraph (1)."

44. Reg. 10 provides:

"(1) The Secretary of State may, after giving the appellant and the local planning authority written notice of the intention to do so, proceed to a decision on an appeal taking into account only those representations which have been sent within the relevant time limits, where it appears that there is sufficient material to enable a decision to be reached."

45. The Town and Country Planning (Hearings Procedure) (England) Rules 2000/1626 ("the Hearings Rules") provide for appeals to be determined by means of a hearing under section 78 of the TCPA 1990. Rule 20A modifies the Hearings Rules in respect of an advertisement appeal.

POLICY FRAMEWORK

Advertisement Policy

46. The First Defendant publishes national guidance on advertisements. Paragraph 141 of the National Planning Policy Framework ("NPPF") (December 2023) provided:

"The quality and character of places can suffer when advertisements are poorly sited and designed. A separate consent process within the planning system controls the display of advertisements, which should be operated in a way which is simple, efficient and effective. Advertisements should be subject to control only in the interests of amenity and public safety, taking account of cumulative impacts."

47. Paragraph 141 set out above corresponded to paragraph 136 of the NPPF as referred to in the reasons for refusal.
48. The First Defendant has also published Planning Practice Guidance ("PPG") in relation to advertisements. Paragraph 004 states:

"Is planning permission required to display an advertisement as well as advertisement consent?

The display of advertisements is controlled through a specific approval process and separate planning permission is not required in addition to advertisement consent. Under section 222 of the Town and Country Planning Act 1990 (as amended), planning permission is deemed to be granted for any development of land involved in the display of advertisements in accordance with the Regulations. Consent under section 222 would not grant consent for the erection of any structure unless its primary purpose is to display advertisements, although it would include development which is ancillary to the actual advertisement's display but part of the same scheme."

49. Paragraph 5 states:

"Do shroud and large 'wrap' advertisements need express consent?

Buildings which are being renovated or are undergoing major structural work and which have scaffolding or netting around them may be considered suitable as temporary sites for shroud advertisements or large 'wrap' advertisements covering the face, or part of the face, of the building. In all cases, express consent from the local planning authority will be required for these advertisements.

50. The Second Defendant's Local Plan contains statutory development plan policies relating to advertisement displays. Policy CC5 relates to regeneration objectives and states:

"Our Approach

We recognise that advertisements can have economic development benefits and that they may support regeneration objectives in appropriate locations, however all advertisements must respect their context with suitable regard to considerations of amenity and public safety.

We will achieve this by

(a) Focusing advertisements in town centres, shopping parades and areas of commercial activity;

(b) Ensuring that advertisements do not adversely impact on the setting of heritage assets, the skyline or the amenity of residential properties. Any impact will be assessed in terms of its significance;

(c) Encouraging all corporate branding, signage and advertisements (including illuminated advertisements and lighting) positively contribute to an area and resisting adverts that will cause severe harm in terms of townscape, amenity and public safety;

(d) Reviewing the existing Areas of Special Advertisement Control and where appropriate, designating additional areas for protection due to their sensitivities; and

(e) Encouraging the use of temporary shrouds and advertising where these make a positive contribution to the appearance of an area during construction or on-site works.

We will expect development proposals to

(f) Describe the advertisement and the supporting structures in every case;

(g) Demonstrate that the advertisement and associated structure are of a size, design, scale and degree of illumination that is compatible with the surrounding buildings, other advertising and the wider area;

(h) Demonstrate that the advertisement, the illumination and associated structure do not appear obtrusive or unduly dominant on the skyline, including during the hours of darkness. Reference should be made to the requirements of the ILP (Institute of Lighting Professionals) Technical Note 5;

(i) Be of a high quality design to support the enhancement of the borough's amenity.

Advertisements on buildings should be integral to the building's design, working with the elevation and any architectural features, and relevant to the use and context. Proposals should not detract from the elevation or any architectural features to ensure that they are compatible with existing amenity. Free standing adverts should be well designed as architectural elements and avoid any impact on important views. A proliferation of stand-alone advertisements and billboards will be resisted as being harmful to townscape amenity;

(j) Demonstrate that the advert is sensitively placed and designed to not adversely impact the setting of heritage assets and strategic or local views;

(k) Demonstrate that the advertisement will not result in visual clutter or a proliferation of harmful advertising;

(l) Demonstrate that the advertisement and associated structure does not adversely impact on pedestrian and vehicle movement and safety;

(m) Contribute good quality hard and soft landscaping to enhance the appearance of the area; and

(n) Demonstrate that the advertisement, its illumination and associated structure will not adversely impact (or cumulatively impact) the amenity of residential areas or pedestrians…"

Appeal Procedure Guidance

The Procedural Guide

51. In respect of the procedures for appeals, the First Defendant has published The Procedural Guide: Planning Appeals – England (Updated 28^th May 2024) ("the Guide") that provides under Section 6.2 for Procedure determination and under Section 14 for appeals in respect of advertising consent. The Guide states at section 6 how the First Defendant decides on the mode of appeal. It is expressly stated that the mode of appeal will be kept "under review throughout the appeal" and may change:

"6.2 Procedure determination

6.2.1. There are 3 procedures for handling appeals: written representations, hearings and inquiries. These procedures are explained in 9, 10 and 11.

6.2.2. The Planning Inspectorate decide which procedure each appeal will follow.

6.2.3. In making our decision, we will consider the views of the appellant and the LPA and the criteria for procedure determination.

6.2.4. Where our choice differs from that of the LPA and appellant, we will explain the reasons for our choice.

6.2.5. The appellant and the LPA can ask for the choice to be reviewed by a senior officer.

6.2.6. We keep our choice of procedure under review throughout the appeal. Subject to notification and procedural requirements, we may change the procedure. We may also, either at the start or at any point throughout the appeal, combine procedures.

6.3 Combining Procedures

6.3.1. The Business and Planning Act 2020 allows us to 'combine' procedures. For example, if we decide that an appeal should follow the inquiry procedure, we may choose, based on the criteria for procedure determination, to deal with certain issues by written representations.

6.3.2. Appeals proceeding by written representations will not normally be combined with other procedures.

6.3.3. It is for us to decide whether combining procedures is appropriate and how it would work (for example, which procedures are combined, what the timetable would be and so on). If we are considering combining procedures, we will invite the parties to comment before any final decision is taken.

6.3.4. We keep the procedure choice, including combined procedures, under review. Subject to any notification and procedural requirement, we may change it at any point before the appeal decision is made."

The Section 319A "Criteria" Guidance

52. In April 2022, the First Defendant published guidance entitled: "Criteria for determining the procedure for planning, enforcement, advertisement and discontinuance notice appeals". The criteria include:

"Written Representations

written representations would be appropriate if: …

the issues are not complex and the Inspector is not likely to need to test the evidence by questioning or to clarify any other matters …

Hearing

a hearing would be appropriate if:

the Inspector is likely to need to test the evidence by questioning or to clarify matters (for example where detailed evidence on housing land supply needs to be tested by questioning) …

there is no need for evidence to be tested through formal questioning by an advocate or given on oath …"

SUBMISSIONS

Claimant

Ground 1

53. Mr Zwart submitted that at heart, the Inspector disbelieved the Claimant's evidence on active marketing of the Site, but she did not consider affording the Claimant the opportunity to provide corroborating evidence before dismissing the appeal. The Claimant's Statement of Case had said at 3.51 – 3.53 that the OR had failed to consider the efforts of the site owner to seek a regeneration solution and that since it was identified in 2019 that redevelopment of the Site for a new car showroom was unviable the Third Defendant had actively marketed the Site through their appointed agents, that despite detailed discussions with interested parties there had been no "proceedable offers to purchase" but that the Third Defendant continued to actively market the Site and remained open to "viable offers from interested parties."
54. Had the Claimant been given an opportunity to corroborate the evidence disbelieved by the Inspector, the Claimant would have made available the evidence which was put before me, comprising the appointment letter, marketing brochures, and an example offer for the Site, as well as descriptions of active marketing set out in the witness statement of Mr Tunnell of the Third Defendant.
55. The principles of fairness set out in R v Secretary of State for the Home Department ex p Doody [1994] 1 AC 531 at 560 E ("Doody") and further considered in R (Timson) v Secretary of State for Work and Pensions [2023] EWCA Civ 656 ("Timson") required the Inspector to give the Claimant the chance to corroborate what had been said in its Statement of Case.
56. Further or alternatively, the criteria for deciding that an appeal should be determined by a hearing provide that a hearing would be appropriate if the Inspector is likely to need to test the evidence by questioning or to clarify matters. Here, the Inspector's lack of belief in the evidence submitted by the Claimant meant that fairness required the First Defendant to act under section 319A (4) of the 1990 Act and decide that, after all, a hearing was required or at least consider doing so. When the First Defendant had decided that the appeal would proceed by written representations, she had also said that she would keep the matter under review "should anything emerge." Something had emerged, namely the Inspector's lack of belief in the Claimant's evidence, but the Claimant could not be expected to know this.
57. The Claimant distinguished West v First Secretary of State [2005] EWHC 729 (Admin) ("West") and Swindon Borough Council v Secretary of State for Levelling Up, Housing and Communities [2023] EWHC 1627 ("Swindon"), which were relied on by the First Defendant for the proposition that a party to a planning appeal must put before an Inspector the material on which they rely and make all the representations they wish, and the Inspector is entitled to reach their decision based on the material before them.
58. West and Swindon were determined under the regime applicable to appeals against refusal of planning permission for development. Applications for advertisement consent are different, the applicable legislation is different and in particular:

a. It is a criminal offence under section 224 of the 1990 Act to display an advertisement without consent. By contrast, it is not a criminal offence to undertake development without the necessary planning permission. A criminal offence is committed only if an enforcement notice is served under Part VII of the 1990 Act, and appeal is dismissed and the notice is not complied with. It is a crucial part of the context for an advertisement consent appeal that it is an offence to display an advertisement without consent. The criminal sanction for such display makes it all the more important that the decision-maker – either the authority dealing with the application in the first instance or the First Defendant on appeal – provides the opportunity to the applicant to corroborate its case if the decision-maker has doubts about it.

b. Under reg. 12 (b) of the 2007 Advertisement Regulations the local planning authority can direct the applicant to provide "such evidence as may reasonably be called for to verify any particulars or information given to the authority." Reg. 12 (b) operates twice (when the application is before the authority and on appeal before the First Defendant) to ensure the truth of representations. Under reg. 8 of the 2009 WR Regulations, the First Defendant in an advertisement consent appeal can require the appellant or the local planning authority to "provide such further information as may be specified." Neither the Second Defendant nor the First Defendant wrote to the Claimant under reg. 12 (b) requiring it to verify the truth of its representations or under reg 8 of the 2009 WR Regulations to require further information. In those circumstances, the Claimant was entitled to expect that the First Defendant would consider its representations to be true, as opposed to being disbelieved.

59. Further, West was decided before the enactment of section 319A of the 1990 Act, when appellants had a right to be heard. If they exercised that right, the First Defendant would then decide whether the appeal would be determined by an inquiry or a hearing. The appeal would be determined on the basis of written representations only if the appellant so chose.
60. Also, when West was decided, if the appeal was determined on the basis of written representations, the appeal procedure was as per the Town and Country Planning (Appeals) (Written Representations) (England) Regulations 2000 ("the 2000 WR Regulations"). The procedure under the 2000 WR Regulations was essentially the procedure now contained in Part 2 of the 2009 WR Regulations. Under the procedure in the 2000 WR Regulations and Part 2 of the 2009 WR Regulations the appellant is allowed to comment on the written representations of the local planning authority and third parties. However, under Part 1 of the 2009 WR Regulations, the notice of appeal and the documents accompanying it comprise the appellant's representations on the appeal, and the appellant does not have the opportunity to comment on the representations of the authority and third parties.
61. Again, West was not a case about credibility of evidence, and Richards J said at [52] that the claimant in West did not point to further material that it could have submitted.
62. In relation to Swindon, the Claimant said that that case was not decided on the basis of written representations but after an inquiry.
63. The Claimant also relied on R v Hackney London Borough Council, ex p. Decordova (1995) 27 HLR 108 ("Decordova"), where at p 113 Laws J said:

"in my judgement where an authority lock, stock and barrel is minded to disbelieve an account given by an applicant for housing where the circumstances described in the account are critical to the issue whether the authority ought to offer accommodation in a particular area, they are bound to put to the applicant in interview, or by some appropriate means, the matters that concern them. This must now surely be elementary law in relation to the function of decision-makers in relation to subject matter of this kind. It applies in the law of immigration, and generally where public authorities have to make decisions which affect the rights of individual persons. If the authority is minded to make an adverse decision because it does not believe the account given by the applicant, it has to give the applicant an opportunity to deal with it."

Ground 2

64. The requirement for the Inspector to provide an opportunity to the Claimant to corroborate its evidence once she had decided that she did not believe that evidence is also reached by an alternative route, namely the decision-maker's duty to take reasonable steps to acquaint themselves with the relevant information to enable them to answer the right question correctly; see Secretary of State for Education v Tameside MBC [1977] AC 1014 ("Tameside") and R (Balajigari) v Secretary of State for the Home Department [2019] 1 WLR 4647 ("Balajigari"). Once the Inspector had decided that she did not accept the Claimant's evidence about active marketing, no reasonable decision-maker in her position could conclude that they had enough information on which to take a rational decision about the credibility of the Claimant's evidence without giving the Claimant the opportunity to corroborate its evidence – either by giving it the opportunity to provide further evidence in the context of the written representations procedure or by deciding that the appeal should be determined after a hearing.

Ground 3

65. The Claimant said that the Inspector did not properly grapple with Policy CC5.
66. The Claimant drew a contrast between the advice from the PPG quoted by the Inspector at DL8 and the considerations which are relevant under Local Plan Policy CC5. The scope of the guidance in the PPG is expressly confined to buildings, and in particular "buildings which are being renovated or are undergoing major structural works". By contrast, the objective of Policy CC5 is to "support regeneration objectives" and this will be achieved "during construction or on-site works." Such works are not tied by CC5 to the "site" of the display, nor is a period of "construction" or "on-site works" defined. Rather, the existence of on-site works can result in benefits from the use of temporary shrouds to the appearance of an area, not just the particular building.

First Defendant

Grounds 1 and 2

67. The First Defendant submitted that the Claimant's case under grounds 1 and 2 ran contrary to the established general rule that a party to a planning appeal must put before an Inspector the material on which they rely and make all the representations they wish, and an Inspector is entitled to reach their decision based on the material before them: see e.g. West at [36]-[48] and Swindon at [27].
68. This is not, as per Richards J in West, "an exceptional case where, on the particular facts, fairness required the inspector to do something more, for example by requesting further information or by departing from the written procedure and holding an oral hearing".
69. That is particularly so as the Claimant was on notice that the progress (or lack thereof) of the redevelopment was a live issue, because:

a. The OR, in recommending that consent be refused, explicitly mentioned that there was "no concrete timeline to develop the site" (see para. 5.10):

b. An allegation of the lack of "proactive marketing" was also raised by a third-party objector. This was the only third-party objection to the application: see the Claimant's Statement of Case, para. 3.71.

70. This issue being a live one is explicitly recorded in the draft Statement of Common Ground submitted with the appeal, which in section 5, entitled "Matters in Dispute", records one of the five matters being "that the owner of the site is actively seeking a viable regeneration solution".
71. In those circumstances, it was incumbent on the Claimant to counter the OR and objector comments, and substantiate its case on this matter in dispute, with evidence. Instead, the Claimant vaguely asserted in its Statement of Case (see paras. 3.52-3.53) that the Site has been "actively marketed" since 2019 and referred to "detailed discussions with a number of interested parties". Nothing was put before the Inspector to evidence these assertions, hence her analysis and conclusions at DL 8-11. It is too late for such evidence to be relied on for the first time in the context of a claim under section 288. It was neither unfair nor a breach of the Tameside duty for the Inspector not to contact the Claimant and ask for evidence to support its case.
72. The remedy for the Claimant, where it has failed to adequately substantiate their application or appeal and it is refused on that basis, is to make a fresh application.
73. The differences between the regimes for advertisement consent and planning permission are not such that the case law relied on by the First Defendant should not apply by analogy.
74. Although it is an offence to display an advertisement in contravention of the 2007 Advertisement Regulations (i.e. without consent) under section 224(3) of the 1990 Act, an appeal under reg. 17(1) is still a "civil" appeal. It is an appeal against the initial refusal of consent by a local planning authority and in that sense is materially identical to an appeal against a refusal of planning permission. Section 78 of the 1990 Act has effect subject to what are relatively minor modifications.
75. The existence of the criminal sanction does not obviate the need for the appellant to put their case in full to the Inspector and does not impose some higher inquisitorial burden on the Inspector. By analogy, non-compliance with an enforcement notice issued under section 172 of the 1990 Act (alleging a breach of planning control) is an offence – see section 179 of the 1990 Act. However, in an appeal to the High Court under section 289 against an Inspector's decision to dismiss an appeal against an enforcement notice (under section 174), the court should refuse to entertain arguments not put to the Inspector: Oates v SSCLG [2018] EWCA Civ 2229 ("Oates") at [53] per Lindblom LJ.
76. Reg. 12(b) of the 2007 Advertisement Regulations does not assist the Claimant. It is merely a power to request further information, rather than the basis for a duty on the decision-maker (whether the planning authority or an Inspector) to request any further information which is missing from the applicant/appellant's case. It is likely that reg. 12(b) exists because reg. 9 of the 2007 Advertisement Regulations is relatively limited in what it requires to be submitted with an application. For planning applications, the documentation and other material required to be included in an application are governed by development order: see section 62(1) of the 1990 Act and the Town and Country Planning (Development Management Procedure) (England) Order 2015 ("the 2015 Order"), arts. 11-12. However, analogously with reg. 12(b) of the 2007 Advertisement Regulations, under section 62(3) of the 1990 Act "the local planning authority may require that an application for planning permission must include – (a) such particulars as they think necessary; (b) such evidence in support of anything in or relating to the application as they think necessary", provided that the requirement is not inconsistent with provision made by the 2015 Order. Therefore, reg. 12(b) is again not a basis for distinguishing the case law cited above.
77. Similarly, the provision in reg. 8 of the 2009 WR Regulations for the Inspector to request further information in an advertisement consent appeal being determined via written representations is merely a power, not a duty. It cannot displace the general requirement on an appellant to put their case in full to an Inspector, nor does it preclude the Inspector from being entitled to determine an appeal on the basis of the material before them. To hold otherwise would be unworkable, because any unsuccessful appellant could challenge an Inspector's decision on the basis that the Inspector failed to assist the appellant by requesting further material to support their appeal.
78. As to the Claimant's contention that West was decided under the previous regime, before the enactment of section 319A of the 1990 Act and the 2009 WR Regulations, in JBS Park Homes (A Firm) v Secretary of State for Communities and Local Government and Mendip District Council (CO/4594/2017) ("JBS") decided after section 319A and the 2009 WR Regulations were enacted, the judge followed West (see [44]).
79. Finally, insofar as grounds 1 and 2 mount a challenge to the Secretary of State's decision under section 319A of the 1990 Act to determine the appeal through written representations rather than convene a hearing, the Secretary is given a discretion as to the determination of procedure, depending on what is appropriate (see section 319A(2) of the 1990 Act). Provided that account is taken of the published criteria for the mode of determination, the Secretary of State's decision can only be successfully challenged where it is "unreasonable, irrational or otherwise unfair" (see Westerleigh Group Limited v SSCLG [2014] EWHC 4313 (Admin) ("Westerleigh") at [32] per Wyn Williams J.
80. In the present case, the Claimant requested a hearing, but the First Defendant on 20 October 2023 determined that the written representations procedure would apply, stating that should anything emerge later in the appeal to warrant discussion the procedure would be reviewed. The Inspector's decision to direct and then maintain the written representations procedure for the Claimant's appeal was not unreasonable, irrational or otherwise unfair. Consistently with the submissions above, the power to "upgrade" a written representations appeal into a formal hearing does not become a duty in circumstances where the appellant's appeal is lacking information to support it.

Ground 3

81. It is claimed that the Inspector erred in failing to explain her "choice" to evaluate the application by means of the "generalised circumstances" described in the PPG, as opposed to by means of the "particular circumstances" in policy CC5 of the Local Plan.
82. It is obvious from fairly reading the Inspector's decision as a whole, in particular the "Conclusion" at DL14, that she had regard to both the PPG (see DL 8) and policy CC5 of the Local Plan. Ground 3 is predicated on an incorrect assumption of a tension or inconsistency between the two policies, when in reality they co-exist, with one operating at the national and therefore general level, with more specific policy for Hounslow found in the Local Plan.

ANALYSIS

Ground 1

83. The Claimant's case under ground 1 is rooted in a contention that the First Defendant adopted an unfair procedure.
84. A classic statement of what fairness requires is in Doody at 560 D-G:

"What does fairness require in the present case?  …  I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type.  (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

85. In Bank Mellat v HM Treasury (No 2) [2014] AC 700 ("Bank Mellat") Lord Neuberger of Abbotsbury PSC said (after citing the above passage from Doody) at [179]:

"In my view, the rule is that, before a statutory power is exercised, any person who foreseeably would be significantly detrimentally affected by the exercise should be given the opportunity to make representations in advance, unless (i) the statutory provisions concerned expressly or impliedly provide otherwise or (ii) the circumstances in which the power is to be exercised would render it impossible, impractical or pointless to afford such opportunity. I would add that any argument advanced in support of impossibility, impracticality or pointlessness should be very closely examined, as a court will be slow to hold that there is no obligation to give the opportunity, when such an obligation is not dispensed with in the relevant statute."

86. In Balajigari, Underhill LJ (giving judgment on behalf of the court) said at [60] that:

"This leads to the proposition that, unless the circumstances of a particular case make this impracticable, the ability to make representations only after a decision has been taken will usually be insufficient to satisfy the demands of common law procedural fairness. The rationale for this proposition lies in the underlying reasons for having procedural fairness in the first place. It is conducive to better decision-making because this ensures that the decision-maker is fully informed at a point when the decision is still at a formative stage. It also shows respect for the individual whose interests are affected, who will know that they have had the opportunity to influence the decision before it is made. Another rationale is no doubt that, if a decision has already been made, human nature being what it is, the decision-maker may unconsciously and in good faith tend to be defensive over the decision to which he or she has previously come."

87. In Timson, the court intervened because a person affected by an administrative act was denied the chance to make representations. In that case, the court decided that guidance, under which a decision-maker could made a deduction from social security benefits without the benefit claimant having the opportunity to make representations before the power was exercised, was unlawful. Edis LJ said at [66]:

"…the Regulations, by framing the decision-making as they do, require a consideration of the interests of the individual claimant and their family. Under the Guidance, however, the decision-maker has the option of contacting them, or of investigating their benefit records, but the Guidance allows a decision to be made where the claimant or their family had been given no opportunity to supply information beyond what the utility company puts in the spreadsheet. This appears to me to be obviously unfair."

88. I now consider the application of the above principles in the context of this case. Appeals against refusal of advertisement consent are dealt with in the context of the statutory framework set out in the 1990 Act and the 2007 Advertisement Regulations. It is common ground that section 319A of the 1990 Act requires the First Defendant to make a determination as to the procedure by which such appeals are to be considered and that written representations are one option open to the First Defendant, as well as hearings and inquiries.
89. No challenge is made to the criteria against which the First Defendant decides which of those options should be used in a particular case.
90. In Westerleigh, a ground of challenge to a planning appeal decision by the First Defendant was that the Inspector had determined the appeal under the written representations procedure. Wyn Williams J rejected this ground of challenge, saying at [33]:

"I do not consider it possible to conclude that either the Inspectorate or the Inspector himself were unreasonable or irrational in their application of the published criteria. The criteria, themselves, contain a clear warning to the effect that they must be applied with common sense and they cannot be regarded as 'fully prescriptive or entirely determinative'. It must be a matter of planning judgement whether or not the planning issues raised on appeal are to be regarded as complex, thereby requiring elucidation through a formal process of questioning and cross examination or alternatively capable of being properly understood from the documentation supplied by the principal parties and other objectors and following an appropriate site visit."

91. Though Wyn Williams J was speaking in a case where the claimant had suggested that the appeal should be determined after an inquiry (instead of on the basis of written representations), I think his words are equally applicable to the present case, where the Claimant sought a hearing. In any case, no challenge is made by the Claimant to the First Defendant's initial decision on 20 October 2023 that the appeal should be dealt with by written representations.
92. In the context of an appeal against the refusal of planning permission, it was stated by Richards J in West at [42] that:

".. The general rule is that it is incumbent on the parties to a planning appeal to place before the inspector of a material on which they rely. Where the written representations procedure is used, that means that they must produce such material as part of their written representations. The inspector is entitled to reach his decision on the basis of the material put before him."

93. Richards J continued:

"[43] That general rule accords with principle, is supported by the discussion in Patel [Patel v Secretary of State for Transport, Local Government and the Regions [2003] JPL 343] and is consistent with the decision in E v Secretary of State [E v Secretary of State for the Home Department [2004] QB 1044]. It also accords with the acceptance by Pill LJ in Dyason [Dyason v Secretary of State for the Environment [1998] JPL 778 -"Dyason"] that 'an appellant must be expected to tell the Inspector all he wishes to tell him': that was said in the context of an oral hearing, but seems to me to apply with at least as much force in the context of the written procedure. There is nothing inherently unfair in the operation of that general rule.

[44] In reaching his decision on the basis of the parties' written representations, the inspector is subject to the inquisitorial burden referred to in Dyason and must subject the material before him to rigorous examination. As Pill LJ observed, '[w]hatever procedure is followed, the strength of the case can be determined only upon the understanding of that case and by testing it with reference to propositions in the opposing case'. In general, however, that process does not require anything beyond proper consideration of the material put forward by the parties.

[45] There will be exceptional cases where, on the particular facts, fairness requires the inspector to do something more, for example by requesting further information or by departing from the written procedure and holding an oral hearing. The Regulations can accommodate such cases without difficulty."

94. West was explicitly followed in Swindon and JBS. The principle behind West was applied recently in the context of a public inquiry in Mead Realisations Ltd v Secretary of State for Levelling Up, Housing and Communities and another [2024] PTSR 1093. In that case, Holgate J stated in relation to an argument which the Claimant had not made to the Inspector at an inquiry but sought to raise before the court:

"[181] If the court were to quash an inspector's decision because of a new point of this kind, it would probably be necessary for the appeal process to be repeated in its entirety or in large part. At the very least, the same inspector, or a new inspector, would have to receive fresh submissions and prepare a new decision letter and evaluate the various policy and planning considerations all over again. The general principle is that new evidence and/or new submissions should not be entertained as a basis for quashing an inspector's decision if this would mean an inspector would have to make further findings of fact and/or reach a new planning judgment (see for example Newsmith Stainless Ltd v Secretary of State for the Environment, Transport and the Regions [2017] PTSR 1126, para 15).

[182] As in civil proceedings more generally, resources for planning inquiries and hearings are finite and need to be distributed efficiently between all parties seeking to have planning issues resolved. There is therefore a strong public interest in the finality of such proceedings. Parties are generally expected to bring forward their whole case when a matter is heard and determined. No proper justification has been advanced by Redrow for the court to exercise its discretion exceptionally to entertain a new point which could have been, but was not, raised before the inspector."

95. I think it is inevitable that, subject to the overriding principle of fairness, it is for parties to proceedings to put before the tribunal the evidence on which they wish to rely. Otherwise, the public interest in the proportionate use of resources for litigation and finality of proceedings would not be served.
96. West established that this principle applied to planning appeals determined by written representations. West was decided at a time when appellants could choose to be heard by the First Defendant rather than proceeding by written representations. However, I do not think this affects the application of West since the enactment of section 319A of the 1990 Act. What matters is that the proceedings – whether written representations, informal hearing or public inquiry – are fair, having regard to the public interest, including the public interest in the proportionate use of resources and finality of proceedings.
97. As the court said in West at [44], with reference to Dyason, the Inspector has an inquisitorial burden and must rigorously examine the material before him. Whatever appeal procedure is followed, the strength of the case can be determined only on the understanding of that case and testing it by reference to propositions in the opposing case. There may be cases where on the particular facts, fairness requires the Inspector to request more information or to depart or consider departing from written representations and holding an oral hearing. Whether that is so will depend on the facts of each case.
98. Does the fact that displaying an advertisement without consent is an offence mean that the approach in West and Swindon should not apply or apply less rigorously, so that the First Defendant has in such cases a stronger duty to seek more information than in appeals against refusal of planning permission? I am not convinced that it does. An appeal against refusal of advertisement consent is still a civil appeal, as is an appeal against refusal of planning permission.
99. Oates shows that that in an appeal under section 289 of the 1990 Act against dismissal of an enforcement appeal under section 174 of that Act, the court will generally refuse to entertain arguments not put to the Inspector. This is of assistance as it is an offence to fail to comply with an enforcement notice, but the court still considers that an appellant against such a notice must put its case to the Inspector.
100. In any event, the most that could be said is that the fact that displaying an advertisement without consent is an offence means that the court must be particularly careful to ensure that appeal proceedings are fair.
101. I agree with the First Defendant that reg. 12 (b) of the 2007 Advertisement Regulations does not enable the Claimant to distinguish West. There is a specific power in section 62 (3) of the 1990 Act to require further information in relation to applications for planning permission, just as there is in reg. 12 (b). The fact that the wording is different does not, in my judgement, make any difference.
102. The Claimant suggested that reg. 12 (b) applies not only to a local planning authority considering an application for advertisement consent but also to the First Defendant on appeal. That may be so, but it was agreed at the hearing that it does not matter, because (as I mention below) the First Defendant in any case had the power to seek further information under reg. 8 of the 2009 WR Regulations.
103. The Claimant also sought to distinguish West on the basis that the Claimant's appeal was determined under Part 1 of the 2009 WR Regulations, whereby (unlike in the Part 2 procedure, which was in essentials applied to all written representations appeals at the time of West) the notice of appeal and the documents accompanying it comprise the appellant's representations on the appeal and the appellant does not have the opportunity to comment on the representations of the authority and third parties. However, I cannot see that the fact that the Part 1 procedure is followed detracts from the general principle that it is for parties to proceedings to put before the tribunal the evidence on which they seek to rely. The fact that under Part 1 the appellant does not have the chance to comment on the representations of the authority and any third parties means that it should be all the clearer to the appellant that they must produce all the evidence they have in their notice of appeal and accompanying documents.
104. It is true that in the present case the Claimant sought a hearing, at which it would have had the opportunity to explain its case orally to the Inspector. However, when submitting its appeal the Claimant did not know whether First Defendant would agree to a hearing or decide that the appeal should be determined by written representations under Part 1 of the 2009 WR Regulation, so it was up to the Claimant to submit all relevant evidence with its appeal. It is also true that under reg. 9 of the 2009 WR Regulations the First Defendant can transfer an advertisement appeal to the Part 2 procedure. However, the Claimant could not know when submitting its appeal whether that would happen, so again, it was up to it to submit all relevant evidence with its appeal.
105. As the Claimant said, reg. 8 of the 2009 WR Regulations gives specific power to the First Defendant in Part 1 cases to require further information. The court will need to be careful to ensure that the proceedings have been fair, and where it considers further information should have been sought may, depending on the facts, conclude that the reg. 8 power to require further information should have been exercised. But reg. 8 does not require the Inspector to seek further information in every case where they think the Claimant has not established its case on the evidence presented.
106. Even if (contrary to my view) the Claimant were correct that the First Defendant should be more ready to seek information from the appellant in an advertisement consent appeal (particularly one decided under Part 1 of the 2009 WR Regulations) than in an appeal against refusal of planning permission, I do not think the First Defendant could reasonably have been expected to seek more information from the Claimant in the present case.
107. The Claimant submitted a detailed Statement of Case and Statement of Common Ground with its appeal. Importantly, the Claimant was on notice that progress on redevelopment was a live issue and said so in the material it submitted. To begin with, paragraph 5.10 of the OR stated that there was "no concrete timeline to develop the site." The Claimant clearly considered that it must respond to this comment and did so in its Statement of Case at paragraphs 3.50 onwards. Again, the third-party objector, Brentford Voice, alleged a lack of "proactive marketing". The Brentford Voice objection was known to the Claimant when it wrote the Statement of Case, as the objection was appended to the Statement of Case (appendix 20) and the Claimant said (paragraph 3.71 of the Statement of Case) that it had had dealt "in detail" in the Statement of Case with the issue raised by the objector about "regeneration efforts". Also, the fact that the Claimant knew that progress on redevelopment was a live issue is clear from the draft Statement of Common Ground submitted with the appeal, which in section 5, "Matters of Dispute", records one of the disputed matters as being "[t]hat the owner of the site is actively seeking a viable regeneration solution."
108. It is therefore clear that the Claimant well knew that progress on redevelopment and, specifically, whether the Site was being actively marketed, was a live issue, and made clear to the Inspector (in the Statement of Case and draft Statement of Common Ground) that it considered this was a live issue. This distinguishes this case from Decordova, where the applicant for housing did not know that there was any issue about the veracity of the account she had given to the authority. In the circumstances of this case, it was up to the Claimant to put before the Inspector what evidence it could, to deal with this matter.
109. I cannot see how the First Defendant could be under a duty to chase the Claimant for more evidence. In my view that would put the First Defendant under an unreasonable burden. The First Defendant was entitled to make her decision on the basis of what the Claimant chose to put forward to deal with the issue (which it knew and made clear it knew was disputed) of whether the Site owner was actively seeking a viable regeneration solution.
110. This is not a case where, as in Timson, the claimant was given no opportunity make representations. The Claimant in the present case had every opportunity to make representations and to supply any evidence it thought fit, and was conscious of the issue it needed to address and that this issue was contentious.
111. The Claimant contended that there was a particular need for the Inspector to revert to the Claimant in this case, because in rejecting the Claimant's case she went beyond deciding that the Claimant had not substantiated its contention that the Site was being actively marketed: the Inspector simply did not believe the Claimant. The Claimant laid particular emphasis on the Inspector's statement in DL 10 that "Neither is there evidence presented with the appeal to verify that the tower is being 'actively marketed' for sale, according to the appellant." My attention was drawn to the definition of "verify" in the Shorter Oxford Dictionary, sixth edition.
112. I do not think this passage does more than say that the Claimant had failed (I use words from the Dictionary definition of "verify") to show to be true or correct by demonstration or evidence, or substantiate, its case that the Site was being actively marketed. I do not think the Inspector was necessarily doubting the Claimant's probity.
113. However, in any case, I cannot see that the Inspector had a duty to revert to the Claimant and seek more evidence, and I am not convinced by the Claimant's attempt to distinguish West on the basis that there was no issue of credibility in that case. To repeat, the Claimant knew that whether the Site was being actively marketed was a live issue, made clear in the appeal documents to the Inspector that it knew this was a live issue and had the opportunity to submit any evidence it wished, to demonstrate that the Site was being actively marketed.
114. Where, as here, an appellant is fully aware of the relevant issue and that it is contentious, and makes clear to the Inspector that it knows the issue is contentious, the Inspector must generally be entitled to assume the appellant's written representations contain all the evidence it can or wishes to submit. That is all the more so where, as here, the appellant is professionally represented and submits with its appeal a detailed Statement of Case (referred to in paragraph 1.7 of that document as a "Full Statement") with accompanying appendices and a draft Statement of Common Ground. In such a case, surely, the Inspector must be able to assume that the appellant will produce all the evidence it has in relation to the issue. There will, no doubt, be cases (as in Dyason) where the Inspector has a duty to make further enquiries, but in my view this appeal was not such a case. The Claimant could not expect to make unsubstantiated assertions or submit just some of the evidence in its possession and assume the Inspector would accept its contentions unless it heard otherwise from the Inspector.
115. In summary, the procedure followed in this case was entirely fair, and there was no need for the Inspector to seek further information from the Claimant to bolster its contention that it was actively marketing the Site.
116. It follows from my conclusion that the procedure adopted was fair that in my view there was no requirement on the First Defendant to exercise her powers under section 319A (4) of the 1990 Act to change the procedure to a hearing. There was also no requirement for the First Defendant to consider changing the procedure to a hearing.
117. I therefore reject ground 1.

Ground 2

118. The Claimant puts its case in an alternative way in ground 2, relying on the principle that a decision-maker must take reasonable steps to inform themselves about the issues. As was said in Tameside at 1065:

"It is not for any court of law to substitute its own opinion for his [i.e. the Secretary of State]; but it is for a court of law to determine whether it has been established that in reaching his decision unfavourable to the council he had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223,…. Or, put more compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?"

119. In Balajigari Underhill LJ referred at [70] to the summary of the general principles on the Tameside duty by Haddon-Cave J in R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2015] 3 All ER 261 at [99]-[100]:

"First, the obligation on the decision-maker is only to take such steps to inform him as are reasonable. Secondly, subject to a Wednesbury challenge, it is for the public body and not the court to decide upon the manner and intensity of inquiry to be undertaken…. Thirdly, the court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision. Fourthly, the court should establish what material was before the authority and should only strike down the decision not to make further inquiries if no reasonable authority possessed of that material could suppose that the inquiries they had made were sufficient. Fifthly, the principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practise may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from the duty of procedural fairness to the applicant but rather from the Secretary of State's duty so to inform himself as to arrive at a rational conclusion. Sixthly, the wider the discretion conferred on the Secretary of State, the more important it must be that he has all the relevant material to enable him properly to exercise it."

120. My conclusion on this ground follows from my conclusion in relation to ground 1 that the procedure adopted was fair. I cannot see that the First Respondent was under any duty to make further inquiries of the Claimant. Given that the Claimant had had ample opportunity to put before the First Respondent any evidence it wished in order to deal with an issue it well knew was in dispute, it cannot be said that no reasonable authority in the position of the First Defendant could have been satisfied that it had sufficient information to determine the appeal.
121. I therefore reject ground 2.

Ground 3

122. I can see no validity in ground 3. It is clear from St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2018] PTSR 746 ("St Modwen") at [6]-[7] that appeal decisions are to be construed in a reasonably flexible way as they are written principally for parties who know what the issues between them are, and that conclusions in an Inspector's decision letter should not be laboriously dissected to find fault.
123. It is apparent from DL 14 that the Inspector took account of Local Plan policy CC5 and the fact that for the purposes of CC5 the effect on the area, not just the building is relevant. That appears from this passage:

"[CC5] amongst other things, indicates that all advertisements must respect their context and not adversely impact on the amenity of residential properties. In addition, the policy also encourages the use of temporary shrouds and advertising where these make a positive contribution to the appearance of an area during construction or on site works."

124. The fact that, as the Claimant said, these words were lifted from a previous appeal decision is nothing to the point. It remains the case that the Inspector took account of the policy and the point made by the Claimant that the effect on the area (including the site generally), and not just the building, is relevant. However, unfortunately for the Claimant, the Inspector considered (see DL 13) that "the further duration to display this advertising would only lead to harm to the amenity of the local area that has been exposed to its visual dominance for what I consider to be longer than a temporary period." That was a judgement about the effect of the advertisement on the area, and not just the Building. Having regard to the guidance in St Modwen about the approach to decision letters, in my view the decision letter was not legally flawed as the Claimant contends. I therefore reject ground 3.

CONCLUSION

125. I reject all the Claimant's grounds. It follows that there is no need for me to consider the application of section 31 (2A) of the Senior Courts Act 1981. It also follows that I must reject the claim.