Case Analysis: Build Hollywood Ltd v LB Hackney

Mini-summary

Advertisement affixed to a building oversailing public highway (Transport for London (TfL) as highway authority) by approximately 20 cm. Appellant unsuccessfully appealed a notice to remove the advertisement. On appeal, the Administrative Court determined if the magistrates’ court had correctly decided that:

1.  TfL had an interest in the site;
2. The appellant had breached standard condition 1 (Schedule 2, paragraph 1, Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (2007 Regulations)) by failing to show that it had a licence from TfL.

Steyn J determined that the case had been correctly decided. TfL had the power to grant a highway oversail licence for the advertisement. The appellant had breached standard condition 1:

“No advertisement is to be displayed without the permission of the owner of the site or any other person with an interest in the site entitled to grant permission.”

TfL were a “person with an interest in the site”.

Written by Sarah Fitzpatrick, Head of Planning at Norton Rose Fulbright LLP.

Build Hollywood Ltd v Hackney London Borough Council [2022] EWHC 2806 (Admin)

What are the practical implications of this case?

A highway oversailing licence (s.177(1) Highways Act 1980) is required to:

1.  construct a building over any part of a highway maintainable at public expense, 
2. alter such a building, 
3. alter such a building otherwise than in accordance with the terms of a licence, or
4. use such licensed building otherwise than in accordance with licence terms. 

Even if a licence is not required (e.g. because the oversail in question pre-dates licensing requirements, or the highway was dedicated or became a publicly maintainable highway after the building was constructed), then the highway authority nonetheless retain a power to license an oversail. 

Where deemed consent (Regulation 6 and Part 1, Schedule 3, 2007 Regulations) is relied on to authorise an advertisement, then the advertisement must comply with the “standard conditions” (Regulation 6). Condition 1 requires that the advertisement is displayed with the permission both of the owner of the site (where the advertisement is displayed), and “any other person with an interest in the site entitled to grant permission.”

Since a highway authority have an interest in the surface of a highway and the airspace above it, if an advertisement encroaches into that airspace then the highway authority will have an “interest in the site” (i.e. the airspace), and they are “entitled to grant permission” (i.e. grant an oversailing licence) even if such a licence is not required by virtue of s.177. The highway authority retain a power (i.e. an entitlement) to grant a licence in those circumstances.

It will therefore now be necessary for those displaying advertisements adjacent to highways to check:

1.  If they have express consent or are relying on deemed consent for an advertisement;
2.  If relying on deemed consent, whether an advertisement oversails a highway even by a minimal amount;
3. If so, whether the advertisement has a s.177 licence (even if a licence would not be required by s.177 itself); and
4. If not, to apply for and obtain a s.177 licence as soon as possible to avoid both being in breach of standard condition 1, and the local authority having grounds to serve a removal notice   (s.225A of the Town and Country Planning Act 1990).

What was the background?

LB Hackney served a removal notice on the appellant, requiring the removal of an advertisement that oversailed a public highway maintained by TfL by circa 20 cm. Their case was that since the appellant did not have a s.177 licence, that the advertisement therefore breached standard condition 1. The appellant appealed the notice, but the magistrates’ court below agreed with LB Hackney and upheld the notice. The appellant appealed by way of case stated to the Administrative Court.

What did the court decide?

Steyn J determined that:

1.  The fact that the advertisement was suspended in the air over land, and had no physical connection with that land did not prevent it being part of the “site”.
2.  What constitutes a “site” will be a question of fact.
3.  The ratio of R (JC Decaux UK Ltd) v Wandsworth LBC [2009] EWHC 129 does not mean that lack of physical connection will necessarily mean that an advertisement “suspended mere centimetres above the land, in the path of any person seeking to walk across that land, cannot be regarded as part of the same site as the land.”
4.  TfL did not have ownership of any part of the site, but they were a person with an interest in the site for the purposes of standard condition 1.
5.  It is insufficient that a person displaying an advertisement has permission from the site owner, they also need to ensure that they have permission to use the site in that way from any other person who could grant of refuse permission. These permissions are of equal importance.
6.  A highway authority has a power to grant or refuse a s.177 licence (which is a form of permission) even if the terms of s.177 do not require a licence, this constitutes an entitlement (and therefore falls within standard condition 1).

Case details

• Court: King's Bench Division, Administrative Court (London)
• Judge: Steyn J
• Date of judgment: 07/11/2022