THE PENTECOSTAL church which acquired the former cinema at 25 Church Road, Crystal Palace have successfully appealed against an enforcement notice issued by Bromley council over four illuminated poster holders on the building’s front wall.
THE HEARING
The informal hearing at Bromley civic centre had something of a ‘Punch and Judy’ show about it with Bromley council insisting the church – Kingsway International Christian Centre – had moved the poster holders (“Oh yes you did!!!”) and KICC insisting that the poster holders were still in the same positions they had been when they acquired the building (“Oh no we didn’t!!!.”)
Mr Simon Hand, the inspector chairing the hearing, said there was quite a bit in the file about a 48 sheet poster hoarding on the flank wall of the cinema. “That’s not before me. “I’m only looking at these poster holders.”
Mr Edward Oteng, on behalf of KICC, agreed it was – but then referred to a decision relating to large billboards which used to stand to the right of the main building. Mr Andrew Lambert, planning officer for Bromley council, said these hoardings had been given permission for two years on appeal.
Mr Oteng: “Then can I say respectfully we’ve been misled. “You don’t talk about the hoardings which my clients are making an application to retain. “To now say they are about poster boards adjacent to the building leaves me somewhat confused.”
Mr Hand said this had left him somewhat confused as well. Mr Lambert explained this was part of the site’s history.
Mr Oteng responded: “Planning permission runs with the land and not with the application – any trainee would know the difference between a poster hoarding and an advertisement.” This was incurring expense and time, he declared.
“We’ve tried to be co-operative and ask ‘what is the issue?’,” Mr Oteng added.. “There was insistence from council officers that it was an operational development and we can’t understand that.”
Mr Hand said that was what they were there to determine. Debate centred upon what class use the poster holders would come under.
Illuminated poster holders are not allowed in conservation areas unless they were for veterinary surgeons or doctors, said Mr Hand.
Mr Oteng said that when the building was a bingo hall there would be no need for illuminated posters about what events were taking place on a particular night. Mr Hand said the posters were illuminated. Mr Oteng said that had to do with the use of the building when it was a cinema. Responding to a further comment from Mr Hand, Mr Oteng then said they had no objection to “having these illuminations removed.”
Mr Lambert, referring to photos taken about a week before Tuesday’s hearing, said the poster holders seemed to be in a slightly different position than to where they were in photos taken three years ago.
Mr Oteng: “All I would say and I give you this assurance: we haven’t tampered with these boards since inheriting the building. “We haven’t sought to shift them an inch either way. “It was bought at risk if I can put it that way.. “We’ve got evidence to show they were in the same position. “All we’ve done is paint the facade.
“We’ve taken a building that was in dereliction and an awful state of decline and spent a great deal of bringing it back into muse. – several million pounds” he added.
Mr Hand said the four poster holders did look to be the same hoardings that were there now – in which case they would get deemed rights. Mr Lambert said they had changed their position – and that was the fundamental point.
Mr Oteng: “We have not made any alterations to the external fabric of the building. “It would be ludicrous for my clients to go and shift something.”
Mr Hand said the appellant’s argument was that there was no harm caused to the conservation area in which the building stands and asked Mr Lambert why Bromley said there was. Mr Lambert said the holders were detrimental to the amenities of the conservation area – and the separate conservation area on the opposite side of Church Road (Croydon borough).
The fallback position did not really exist as there were no advertisements being displayed in the holders.”If it’s not an advert it’s just a holder so it’s a material change to the building” declared Mr Lambert Mr Oteng responded that this was like saying someone’s skeletal structure did not form part of their body.
Mr Hand asked Mr Lambert if Bromley were arguing that posters which were not illuminated were harmful to the conservation area. Mr Lambert said they were slightly different to each other. “It’s almost a two-stage process. The first bit we’re looking at is whether it’s deemed consent or not.
“In that particular case the council concluded it wasn’t. “Then there’s the physical structure. “Our argument is there’s a physical structure on the building, it’s a material alteration and therefore requires planning permission. “That’s why we’ve gone down the route of the enforcement notice rather than advertisement proceedings.”
Mr Oteng: “Let’s be clear about this. “Let’s not beat about the bush. “These poster holders are clearly identified in the council notice as being poster holders. “Nowhere do they talk about them being structural ”Either their notice is defective or you’re trying to backpedal.”
Mr Oteng said there had been posters in the holders when KICC held an event there on August 24th this year. “It wasn’t illuminated” he added.
Mr Hand said it was very subjective and they needed to look at them during the site visit which would follow the hearing. Mr Lambert said that part of the council#’s notice was for both the illuminations and the panels to be removed.
Mr Hand said that if he upheld the notice KICC the appellants would have to remove the structures and the lighting but would still have deemed consent.
(A note passed round at the start of the hearing stated: “If the notice is quashed and planning permission granted, there is still no consent for advertisements, only planning permission to retain the poster frames. A separate advertisement consent would be required to enable any advertisements to be lawfully displayed in the frames”)
The hearing then adjourned for the site visit.
NOTE: BEFORE I get a flood of emails from angry cinema campaigners, allow me to emphasise that if I cover matters such as public inquiries, court cases, council meetings I have to be seen to be impartial.
The world and his dog knows the building was not in a state of dereliction when KICC took it over. The building was open and being operated by Gala Bingo who sold the building in a secret deal – and gave staff one week’s notice that they had no jobs.
It was the Picture Palace Campaign who in November 2010, 18 months after KICC’s purchase of 25, Church Road, stated that: “The building still remains empty, its external appearance continues to deteriorate and the KICC continues to fail to engage or even to communicate with the local community other than via a single press release.”
KICC, announcing the open day, turned criticism of them round in a poster for the event by saying: “The venue makes a positive contribution to the life of the local community and arrests the continued dereliction of a valued local heritage asset”
THE INSPECTOR’S DECISION – APPEAL ALLOWED – BUT THERE’S A ‘CATCH 22′
THE POSTER HOLDERS outside 25 Church Road had been moved – lowered by about 25 centimetres, said the inspector.,
Allowing the appeal the inspector granted planning permission for the four internally illuminated poster frames.
But he emphasised: “This does not grant advertisement consent for any advertisements. “The site has deemed consent rights under class five for non-illuminated advertisements to be displayed in the poster frames but not for illuminated advertisements. “These would need a separate advertisement consent” he added.
The inspector agreed with Bromley that it is possible for a structure that was once intended for the display of advertisements to fall out of use so that it can no longer be considered to be part and parcel of an advertisement, but reverts to being simply a structure.
But if in the past the advertisement and its associated structure, benefited from an express or deemed consent then the structure would, by virtue of S222 of the 1990 Planning Act have been granted planning permission. That planning permission would be independent of the advertisement consent and would still exist today unless it had been revoked or abandoned.
Mr Hand, in his decision, said: “On the site visit it was clear the poster frames have been lowered by some 25cm, but have not been moved horizontally and appear to be the same size. “In my view they are still the same structures and the 25cm change in position is not readily apparent.
“This change is not therefore material and the poster frames are for the purposes of the regulations the same. “The main question is therefore whether the poster frames have ever received express or deemed consent.
“There is no evidence an express consent was ever granted, but various classes of schedule three of the advertisement regulations grant deemed consent to certain types of advertisements.
“The poster frames are illuminated and so cannot be considered under class five as suggested by the appellants as this only allows illuminated advertisements essentially for doctors and vets.
“The fact that the appellants are prepared to remove the illumination is irrelevant for considering what class they may currently be under. “Similarly class ’four b’ is excluded as this does not include advertisements within a conservation area.
“Class 13 grants deemed consent for an “advertisement displayed on a site that has been used continually for the preceding 10 years for the display of advertisements without express consent. “Here the history of the site is instructive. “At the hearing the council provided photographic evidence of the history of the building.
“While it was a cinema various advertisements were placed on the front wall, but none similar to the poster frames the subject of the notice. “But a photograph dated from “sometime in the 80s”, showed four poster frames in very much the same position as the current ones with advertisements in place.
“The Google streetview map, dated June 2008, shows the same frames with advertisements in place. “A later picture, dated 27 June 2009 showed four similar poster frames, now empty of advertisements, as the bingo use had recently ceased.
“There can be no doubt in my mind that the posters frames were erected at least by the 1980s, if not before, and there can be little doubt they were used continually up to the demise of the bingo hall in mid 2009.
“But class 13 is only for advertisements displayed on a site “used continually for the preceding 10 years”. “I take this to mean the 10 years immediately prior to the question being asked, that is by the issue of a discontinuance notice or, as in this case, an enforcement notice.
“This includes the gap between the end of the bingo use in June 2009 and the issue of the notice in April 2012. “The courts have held that ‘continual use’ can include gaps when no advertisements were displayed as long as the use is regular [Westminster City Council v Moran (1999)].
“It is ultimately a matter of fact and degree. “From the evidence it would appear that advertisements were displayed regularly up to mid 2009, but not thereafter until the use began again in August 2012, so there were no advertisements displayed for the last 34 months of the relevant 10 year period.
“During that period the bingo hall was undergoing renovation and refurbishment while a suitable new use could be found for it. “There was undoubtedly an intention on the part of the appellants to continue using the poster frames for advertisement purposes as the frames were refurbished, and possibly moved downwards by 25cm to their current position.
“Had they been able to bring the use back into operation earlier then no doubt the gap would have been shorter. ”But they did not do so and the gap of 34 months is significant. “Although the reasons for that gap are understandable, it is too long to be able to say the use has been continual for the 10 year period, so the poster frames do not benefit from deemed consent granted by class 13.
“In conclusion, the poster frames and their associated advertisements have never received an express consent and do not benefit from a deemed consent. “Consequently, the poster frames do not have planning permission and the appeal on ground (c) fails.”
Of the Appeal on ground (a) Mr Hand says the main issue is whether the four poster frames preserve or enhance the character and appearance of the Crystal Palace conservation area.
“Church Road runs from the south-western corner of Crystal Palace park towards Thornton Heath. “The stretch from the junction with the park which includes the appeal site is rather scruffy and busy with traffic. It is predominantly made up of ground floor shops and other commercial uses with flats above and some full size commercial buildings, such as the appeal site.
“Most of the ground floor uses have signage of varying quality, some of it illuminated, both externally and internally. “These include illuminated projecting signs and fascia. “The site is not readily visible from the park end of the road, but is seen wholly within the context of its immediate neighbours.
“The four appeal signs are grouped into pairs, separated by the large entrance doors to the foyer. “They are below fascia height and beneath the foyer canopy. “The panels are each relatively small, and even taken together, they do not stand out amongst the other signage and general street clutter of this busy urban area.
“Technically speaking as this is a ground (a) appeal it is solely for the poster frames and not for any advertisements that may be displayed within them. “But in reaching my conclusion above I have assumed the frames contain illuminated advertisements.
“I am further reinforced in my view that the advertisements and their poster frames will cause no harm by two facts.
“Firstly the art deco building has now been restored to something approaching its former glory and the appellants have clearly taken a great deal of care over the work. “The building has always been associated with signage and advertisements and the four poster frames fit neatly onto the facade and are wholly consonant with the building and its new use.
“Secondly, under class five the site has deemed consent rights to display the four signs without illumination and this can happen regardless of the outcome of this appeal.
“Consequently I consider the character and appearance of the conservation area will be preserved and as the poster frames do not harm the visual amenities of the area are in accord with policy BE21 of the unitary development plan.”
Allowing the appeal on ground (a) and granting planning permission for the four internally illuminated poster frames as described in the allegation, Mr Hand emphasises: “This does not grant advertisement consent for any advertisements. “The site has deemed consent rights under class five for non-illuminated advertisements to be displayed in the poster frames but not for illuminated advertisements. “These would need a separate advertisement consent.”
