Mills & Rockleys Ltd v Leicester City Council

 Mills & Rockleys Ltd v Leicester City Council

TOWN AND COUNTRY PLANNING

KING’S BENCH DIVISION

LORD GODDARD LCJ, HUMPHREYS AND HENN COLLINS JJ

28, 29 JANUARY 1946

Town and Country Planning – Advertisements – Power of local authority to prohibit the use of a wall of dwelling-house for advertising purposes –

“Structure” – Town and Country Planning Act, 1932 (c 48), s 47(5), (8) – Town and Country Planning (Interim Development) Act, 1943 (c 29), ss 5, 15 Sched

I.

The appellants, a firm of advertising contractors, were the owners of a dwelling-house and they proposed to use the exterior wall of the house for the display

of pictorial advertisements. The house was within the area which, under a scheme to be prepared under the Town Planning Acts, 1932–1943, was to be

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

protected in respect of advertisements. The respondents, as the interim development authority, served the appellants with a notice, under the Town and

Country Planning (Interim) Development Act, 1943, s 5, of their intention to make an order prohibiting the use of the exterior wall of the house for the

purposes of advertising. On appeal to a court of summary jurisdiction, the justices held that the respondents were entitled to take the proposed action. From

this decision a case was stated for the opinion of the High Court at the request of the appellants:—

Held – Sect 5 of the 1943 Act must be read subject to the provisions of sect 47(8) of the 1932 Act, which did not empower a local authority to prohibit or

control in advance a prospective advertisement or the use of a building for its display. The appellants were therefore entitled to the relief asked for and the

notice served by the respondents must be set aside.

Per Lord Goddard LCJ, “Structure” means something which is constructed, and therefore includes a wall.

Notes

Under the Town and Country Planning Act, 1932, a local authority may serve notice requiring the removal of unsightly advertisements set up in an area to

which a scheme applies. They may not, however, forbid the erection of structures for the purpose of advertising, which appears to enjoy a very advantageous

􀂭 424􀀉 position under the Act. In view of this express prohibition an authority cannot pray in aid sect 5 of the Town and Country Planning (Interim

Development) Act, 1943, to restrain the use of a structure for advertising, since an interim scheme under that Act may not include something expressly

prohibited by the principal Act. The purpose of sect 5 is to enable a local authority to restrain the use of land, while a scheme is being prepared, in a manner

which will be contrary to the provisions of the scheme when made.

As to Advertisements, see Halsbury, Hailsham Edn, Vol 32, pp 238–240, paras 356–361; and for Cases, see Digest, Vol 38, pp 178, 179, Nos 201–204.

Special Case

Special Case stated by the justices for the city of Leicester under the Summary Jurisdiction Acts, 1857–1879. The facts are fully set out in the judgment of

Lord Goddard LCJ.

A M Lyons KC and J P Stimson for the appellants.

Roger Willis for the respondents.

29 January 1946. The following judgments were delivered.

LORD GODDARD LCJ. This is a special case stated by the justices of the city of Leicester in a proceeding taken under the First Schedule to the Town and

Country Planning (Interim Development) Act, 1943. The matter arises in this way. On 29 November 1944, the town clerk of Leicester served upon the

appellants, who were the owners of a dwelling-house known as No 320 Narborough Road in the city of Leicester, a notice which stated that

‘… the interim development authority do hereby prohibit the following development, namely, the use of the exterior wall facing towards

Haddenham Road of the dwelling-house known as No. 320 Narborough Road, Leicester, for advertising purposes.’

The notice went on to state

‘… the grounds on which the said authority propose to make this order are as follows: 1. That a resolution to prepare a scheme under the Town

and Country Planning Act, 1932, is in force with respect to an area within which the said dwelling-house is situate. 2. That the said development began

to be carried out after 22 July 1943 [which was the date when the 1943 Act came into operation]. 3. That the said development is not in accordance

with the terms of the interim development order. 4. That no permission has been given under the said order for such development. 5. That the

Leicester City Council acting as aforesaid are satisfied that it is necessary and expedient to make the said order having regard to the provisions proposed

to be included in the said scheme [those seem to me to be very material words] namely, that the said area within which the said dwelling-house is situate

shall be specified in the said scheme as land to be protected under the Town and Country Planning Act, 1932, in respect of advertisements.’

In other words, the council gave notice to the tenant and the owners of the house that in the interim scheme which they were preparing they were

proposing to prohibit the use of this house, or the wall of this house, for the purposes of advertising. There is no question but that the appellants in this case,

Mills and Rockleys Ltd intended to use and had begun to prepare the exterior wall of this house for the purpose of an advertising station.

The First Schedule to the 1943 Act provides:

‘2. If any person served with such a notice aforesaid desires to dispute any allegation contained therein, he may, by written notice served on the

clerk of the court and on the interim development authority within twenty-eight days from the date of the service … appeal to a court of summary

jurisdiction … and the interim development authority shall not take the proposed action pending the final determination or withdrawal of the appeal. 3.

If on any such appeal the court of summary jurisdiction are satisfied that the interim development authority are entitled to take the proposed action on

the grounds specified in the notice, they shall dismiss the appeal and shall by their order empower the authority after the expiration of the said period of

twenty-eight days, to remove or pull down the building or work, or to execute the required alterations or works or, as the case may be, shall by their

order prohibit the building or land from being used after the period aforesaid without the permission of the authority or in contravention of any

conditions subject to which that permission was granted, but, if they are not so satisfied, they shall allow the appeal …’

In other words, the paragraph of the Schedule in effect gives a court of summary jurisdiction a power to grant an injunction against the carrying out of the

proposed works which are stated to be in contravention of, or not in accordance with, the interim scheme which has been prepared, and may prohibit the

further continuance of those works. The appellants took these proceedings because they wished to challenge the authority of the city council, as the interim

development authority, to prohibit them from using this wall as an advertising station.

􀂭 425􀀉

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Preamble

The Town and Country Planning (Interim Development) Act, 1943, s 15, provides that that Act “and the principal Act” [which is the Town and Country

Planning Act, 1932] “may be cited together as the Town and Country Planning Acts, 1932 and 1943.” It does not say in so many words that they are to be

read together, but they are to be cited together, and the 1932 Act is “the principal Act.” One has to see, in the first place, whether any provisions of the

principal Act are repealed or amended by the 1943 Act, and certain provisions of the principal Act are repealed by sect 2 of the 1943 Act; but sect 47 of the

1932 Act is not, so far as I can see, or as has been pointed out to the court, affected in any way by the 1943 Act. Section 47 of the 1932 Act deals with the

powers of a town and country planning authority with respect to advertisements, and by sect 47(1) it is provided that

‘Where it appears to the responsible authority that an advertisement displayed or a hoarding set up in the area to which a scheme applies seriously

injures the amenity of land specified in the scheme as land to be protected under this Act in respect of advertisements, the authority may serve … upon

the owner of the advertisement … a notice requiring him to remove it …’

I may say here that there is no provision in the Act, so far as the court is aware, dealing expressly with the inclusion in a scheme of provisions with regard

to advertisements, but the Act is wide enough, I think, to make it clear that a local authority can say, in preparing a scheme, that a certain part of their district,

or the whole of it, is to be protected with regard to advertisements. In other words it gives them the power to take proceedings and exercise the powers which

are given by sect 47 in regard to advertisements which are unsightly or unsuitable in any part of the district which they like to specify.

There is no question raised here but that Narborough Road, Leicester, is a district which has been protected so far as advertisements are concerned. Sect

47(1) as I have just said, provides that if an advertisement which can be objected to on what I may call aesthetic grounds, or affecting the amenities of the

district, is put up, the local authority can require that it shall be taken down, and, by other provisions in the section, if the owner does not take it down they can

go to the court and get an order, and then the expenses of taking down the advertisement have to be paid by the person who ought to have taken it down. Sect

47(5) provides that

‘Where a scheme specifies any land in the area to which the scheme applies as land to be protected under this Act in respect of advertisements, the

scheme may contain provisions enabling the responsible authority subject to such conditions as may be specified in the scheme to authorise the display

of any particular class of advertisements, either unconditionally or subject to any conditions in respect of the position or manner in which, or the period

during which, the advertisements may be displayed, and conferring upon any person aggrieved by a decision of the responsible authority in relation to

such authorisation as aforesaid a right of appeal to a court of summary jurisdiction.’

That is a subsection which enables the authority to authorise advertisements, subject to conditions. It is impossible to read that subsection as authorising

the local authority to prohibit advertisements, which is the very antithesis of authorising advertisements.

Then in sect 47(8) one finds it is provided that

‘Save as provided by this section, [that is to say, saving the rights of the authority to object to a particular advertisement once it is up] a scheme shall

not contain any provision prohibiting or controlling the erection or use of structures for the purpose of advertising … ’

Those words seem to me as clear as any words can be—that Parliament has chosen to put advertising space or sites in a peculiarly favourable position,

and it has said that a scheme which a town planning authority prepares is not to interfere with the use of structures for the purpose of advertising or advertising

stations. That is no doubt a very valuable privilege which is given to advertising, but Parliament has seen fit to insert that, for good reasons, and it may be that

they considered sufficient protection was given to the neighbourhood by the powers of the local authority to object to particular advertisements when they

were put up and also by their power to impose certain conditions with regard to the use of advertising stations. Except for the provisions which are contained

in the earlier subsection, it is perfectly clear that the scheme must not contain 􀂭 426􀀉 a provision which prohibits or controls, otherwise than is provided in the

section, the erection or use of structures for the purpose of advertising. That is just exactly what the interim scheme in this case does: it prohibits the use of

this particular wall as an advertising station.

When I turn to the 1943 Act, I can find nothing in that Act which refers to this sect 47 or cuts down or limits the emphatic prohibition which sect 47(8)

contains. Sect 5 of the 1943 Act in effect says this, that where an interim order is made, and the authority are preparing a scheme (which will afterwards have

to be submitted to the Minister and approved by him before it becomes finally binding) no one shall carry out development of land and put land to a particular

use in a manner which will be contrary to the provisions of that scheme. In other words, “Prevention is better than cure.” Where the local authority is getting

out a scheme, they are not going to have, says Parliament, builders and owners of property developing their land contrary to the ideas that are contained in that

scheme merely because the scheme has not yet been finally approved; because if the scheme is finally approved you would have the state of affairs that while

it has been under discussion development has been going on in a manner contrary to the ideas and so forth which are contained in the scheme which it is

expected or hoped will be approved. Part of sect 5 enables the authority “where the development consists of any use of the land or any building thereon, by

order” to “prohibit that use, and, where necessary, reinstate the land,” which is what has been done here: they have prohibited the use of this land, or this wall,

for advertising purposes. But there is nothing in sect 5 of the 1943 Act which affects sect 47 of the 1932 Act, and accordingly it follows that, with regard to

any interim scheme which the local authority or the town planning authority may prepare and which will be an interim scheme under the 1943 Act, it is quite

clear that that scheme must not “contain any provision prohibiting or controlling the erection or use of structures for the purpose of advertising.” It is useless

to inquire why that special protection is given to advertising; the statute clearly does give it; and of course if the scheme does prohibit something which the

statute says shall not be prohibited, it follows that the owner has a right to complain to the court and say “I ask you to set aside this order and to declare that

the town planning authority cannot impose this term upon me.”

The order of the magistrates in this case has, it seems to me, not given effect to sect 47(8) because they have in terms prohibited the owners of this

property from using it as an advertising station, in spite, as I say, of the clear provisions of this section. Counsel for the respondents, who has put the matter as

clearly as it can be put, has really had to base his argument mainly upon the use of the word “structure” in the subsection, and he says that that does not apply

to the wall of a house. I am bound to say that I cannot understand that argument. A “building,” by the definition section of the Act, includes a “structure,” and

therefore things which would not ordinarily be called “buildings” are included in that term where the word “building” is found in the Act. But to say that a

wall is not a “structure” seems to me to be really impossible. “Structure” means something which is constructed. It is not everything that is “constructed” that

would ordinarily be called a “building,” but every building is a “structure.” I can see no ground for saying that the use of a wall, is not the use of a structure

and therefore it can be prohibited as an advertising station under the Act.

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Preamble

I called attention, in the course of the argument, to another prohibition which is contained in the 1932 Act, that is to say sect 12(3), which prevents a

scheme applying to agricultural land. So that there, at any rate are two things which the Act says are not to be included in the scheme at all—agricultural land

and advertising stations. Therefore it follows that if a scheme does include in it provisions regarding agricultural land or advertising stations, so far as that is

concerned the scheme is bad and cannot be enforced.

For these reasons, in my opinion, the justices came to an incorrect conclusion, and this appeal must be allowed. It follows that the relief asked for in the

complaint filed before the justices must be granted, and that the notice (I think this is the right order to make) of 29 November 1944, served by the respondents

on the appellants, must be set aside. The justices tell us that their decision was “that the respondents were entitled to take the proposed action,” and we hold

that the respondents were not entitled to take the proposed action.

􀂭 427􀀉

HUMPHREYS J. I agree that the appeal should be allowed, and the order referred to in the case, an order prohibiting the use of the exterior wall for

advertising purposes, set aside. I do not desire to add anything to the judgment of Lord Goddard LCJ, with which I entirely agree.

HENN COLLINS J. I agree. I think the first and the fundamental question is whether the 1943 Act has enlarged the ambit of schemes, or the powers to

make schemes in respect of advertisements, beyond the provisions of the principal Act of 1932. The 1943 Act provides, by the interpretation section, sect

14(3), in these terms:

‘Any reference in this Act to the principal Act … [that is, the Act of 1932] shall … be construed as a reference to that Act … as amended by …

this Act.’

There is no express amendment, such as in regard to advertisements, in the 1943 Act of the 1932 Act, and therefore prima facie when they are to be read

together, the governing Act is the principal Act. Sect 5(1) of the 1943 Act is that under which the resolution of the order complained of purported to have

been made, and that provides that

‘If while a resolution to prepare or adopt a scheme under the principal Act is in force with respect to any area, any development of land within that

area is carried out after the commencement of this Act otherwise than in accordance with the terms of the interim development order or of permission

granted under that order, then, subject to the provisions of this section, the interim development authority may, if they are satisfied that it is necessary or

expedient so to do having regard to the provisions then proposed to be included in the scheme … (b) where the development consists of any use of the

land … by order prohibit that use …’

The controlling words of that section lie, it seems to me, in the latter part of sub-sect 1, that the authority “may if they are satisfied that it is necessary or

expedient so to do having regard to the provisions then proposed to be included in the scheme,” because one cannot conceive that they could find it “necessary

or expedient” to include in the scheme anything which they had no power to include. That therefore throws one back on the principal Act, and one has to

ascertain whether, under the principal Act, they could make an order prohibiting the use of the side of the dwelling-house for the purposes of an advertisement.

The principal Act, by sect 11, specifies certain things which must be contained in a scheme; by sect 12, certain things that may be included; and there is,

for our purposes, a provision in sect 47(8) as to a particular matter which shall not be included in a scheme, and the section is in these terms:

‘Save as provided by this section, a scheme shall not contain any provision prohibiting or controlling the erection or use of structures for the purpose

of advertising …’

Reading those two Acts together, and stopping there for a moment, it is quite clear that an order prohibiting the use of this particular side of this

dwelling-house for the purposes of an advertisement could form no part of the scheme, under the principal Act. Counsel for the respondents was driven back

to saying that this, though a hoarding, was not a “structure” within the meaning of the Act, but that view does not commend itself to my mind. I think it is

quite clear that under the principal Act no such order as has been made could have been made, and that the principal Act is dominant, with respect to the ambit

of a scheme, subject to any amendment which the later Act has provided. But no amendment has been made in respect of advertisements.

Appeal allowed with costs here and in the court below.

Solicitors: Field, Roscoe & Co agents for Stone & Co Leicester (for the appellants); Field, Roscoe & Co agents for L J McEvoy, Town Clerk, Leicester (for the

respondents).

C StJ Nicholson Esq Barrister.

􀂭 428􀀉

[1946] 1 All ER 429