The claimant in this case had caused advertisements to be displayed on his land. These advertisements were originally attached to wooden posts but latterly to a large wooden structure which was over 13 metres in length and two metres in height. In February 2011, the claimant applied to the local planning authority for a certificate of lawful use or development pursuant to section 191 of the Town and Country Planning Act 1990. The application was refused. An inspector appointed by the Secretary of State dismissed the claimant’s appeal. The inspector found that the claimant’s evidence was not sufficiently precise and unambiguous for him to determine that, on the balance of probability, that the land had been used for the necessary ten year period, uninterrupted by any break in use in order to stay off enforcement action by the local authority. He noted that the claimant’s actions in moving the advertisements when required to do so by the authority had been intended to remedy the breach of control taking place at the time, thereby avoiding any further action by the authority. The removal of the advertisements under those circumstances had represented a material break in the use of the land for displaying advertisements. The inspector’s analysis of the ten year period was by reference to section 171B of the Town and Country Planning Act 1990. The claimant applied for an order to quash the inspector’s decision but that application was refused. The claimant appealed.
The claimant argued that the judge had erred in concluding that the inspector’s failure to consider the issue of deemed consent under class 13 of part 1 of schedule 3 to the Town and Country Planning (Control of Advertisement) Regulations 2007 had been immaterial. The claimant took the view that if the inspector had focused on class 13, he would or should have concluded that there had been no material breaks. The claimant also contended that the unbroken presence on the land of the wooden posts and the wooden structure for more than ten years brought the case within class 13 because even during the periods when nothing had been attached to them, they had continued to be advertisements for such purposes.
The appeal was dismissed. It was held that the inspector’s finding of a material break in the face of threatened enforcement action, albeit in the context of a section 171B of the Town and Country Planning Act 1990 analysis, negated continual use as required in relation to class 13. The claimant had brought about cessations in advertising and had done so as a result of threatened enforcement action which would otherwise have ensued. It would be regrettable if, in such circumstances, a local planning authority might be deterred from light touch intervention and propelled into coercive action because, without it, time would continue to run for the purpose of class 13. During the period of the cessation, the unadorned structure was no longer in the nature of and employed wholly or partly for the purposes of advertisement and it could not feed the continuance required by class 13.