Appeal 6004071

The appeal is dismissed.

Whilst the Council has refused the application against a number of development plan policies it considers are relevant, section 38(6) of the Planning and Compulsory Purchase Act 2004 does not apply to advertisement appeals. The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (as amended) (the Regulations) and the National Planning Policy Framework (the Framework) paragraph 141 make it clear that control of advertisements may be exercised only in the interests of amenity and public safety, taking account of cumulative impacts. Consequently, although I have taken these policies into account, they have not been a decisive consideration in my determination of this appeal.

When dealing with an appeal for an advertisement affecting the setting of a listed building the statutory duty under s66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 does not apply, because s66(1) only applies to a grant of planning permission. However, the fact that a building is listed may be a relevant material consideration when considering the effect on ‘amenity’. Regulation 3(2) of the Regulations states that factors relevant to amenity include “the general characteristics of the locality, including the presence of any feature of historic, architectural, cultural or similar interest”.

Issues of public safety have not been raised by the Council as a reason for refusal and the Highway Authority has raised no objection. I have no reason to take a different view. I have therefore confined my assessment to amenity issues.

The main issue is the effect of the appeal proposal on visual amenity, having regard to the site’s location within Dudley Town Centre Conservation Area (the CA) and setting of nearby Dudley Castle1, a [name] listed building and Scheduled Monument.

The appeal relates to the installation of a double-sided, free-standing, internally illuminated digital advert or ‘totem’. The structure would measure approximately 2.7m in height, 1.3m wide and 0.34m deep and be made of pressed metal, finished in black. This would provide a frame around the digital screens on each side. Each digital screen would measure about 1.6m tall and 0.92m wide. From looking at the submitted plans each screen would appear to occupy about two-thirds of each face. The digital screens would display internally illuminated changing images. Screen brightness levels of about 600cd/m2 between dusk and dawn, and 500cd/m2 at other times would be within the Institute of [name] guidelines.

The totem would be sited on part of the wide pavement and pedestrianised area outside the [site address] (the [name]) in close proximity to its entrance doors, including a double door set at an angle. The entrance/exit provides a direct pedestrian link through the [name] to the [address].

The appeal site is located within the CA, on its north western edge. The CA mainly comprises the town’s historic centre and medieval extent and includes the [address] and the later 18th and 19th century northward expansions of the Civic quarter and high-quality housing. The CA meets the [address] Conservation Area at the base of [name], and includes more modern outlying development, including the more recent commercial buildings and the 1960s [name] and is predominantly commercial in nature. From the evidence before me and what I saw during my site visit, I consider the character and appearance of the CA, and thus its special interest and significance, are in part derived from the architectural richness and variety of its surviving historic buildings and street patterns, which reflect the economic and social growth of Dudley from its early origins into a large urban centre at the heart of the Black Country region.

Whilst the [name] is a much more modern building and of little architectural interest in itself, it nonetheless forms part of the story of Dudley. It is prominently located on one of the key approaches into the commercial heart of the town centre along the multi-laned [address] on the brow of the hill. Hence the [name] and pavement in front of it form a prominent component of the street scene.

The Council advises that the area has recently undergone extensive regeneration works and that the amenity of the street scene has been enhanced. [address], outside the [name], is due to host the Metro extension with [name] (the bus station) nearby and I saw that construction was still in progress. I also saw that the pavement surfacing looked relatively new, clean and even, and free of chewing gum, grease and dirt marks that can so often blight pavement surfaces. The pavement area was also relatively free of street furniture and clutter, with only a litter bin and street light column sited some distance away 1 National Heritage List for England: list entry number 1343187 near the railings with the edge of the road. Therefore, the pavement area outside the [name], which includes the appeal site, positively contributes to the improved street scene, and hence character and appearance of the CA.

The proposed totem would be positioned beneath the [name] canopy, close to the two-tone brick finished pillars and just outside the main entrance/exit doors to the [name], where passing pedestrians would be very aware of the proposal. With a height of some 2.7m metres, significantly taller than the average person, the digital sign would loom large and be an overbearing structure on the pavement in a pedestrianised environment. This would be exacerbated by the bright changing digital images. Furthermore, the totem would be sited in a relatively compact area between the doors and the first canopy pillar, and this would compound the sense of the proposed totem having an overbearing presence.

The digital totem, with its size and location, would also visually compete with the decorative brick pillars and disrupt the clean straight lines of the canopy edge and line of pillars. As a result, the totem would be a visually dominant and incongruous feature in this part of the street scape, even on the modern edge of the CA. The proposal would also introduce street furniture and clutter to a street scene that is largely devoid of such, as part of a deliberate visual enhancement of the town scape. I thus find the proposal would harm the visual amenity of the area, and in turn the CA.

The totem will be positioned at right angles to the main street elevation of the [name]. As a result, it would be viewed almost side-on from across the road and approaching from [address], presenting the black edge of the totem, making it less visually intrusive from these vantage points.

[name] is a [name] listed building and a Scheduled Monument dating from the 14th century and lies over 400 metres away to the north of the appeal site and beyond the CA boundary. Its significance, insofar as the appeal is concerned, is largely derived from its architectural and historic interest, and it also has associative interest in that [name] visited it.

The setting of a heritage asset can also contribute to its significance. As the Framework explains, the setting of a heritage asset may change as the asset and its surroundings evolve. This has clearly been the case with regards the Castle as Dudley town centre has grown and expanded, such that the setting of the Castle has been somewhat compromised over time.

The Castle occupies a prominent hill top and therefore can be seen from various locations. From the [address] there are clear views of the castle and its crenelated towers on the skyline. However, when standing at the appeal site and on the pavement outside the [name], the castle is not visible. Nor would the entrance to the [name] and the appeal site be visible from the Castle.

Being located on the brow of the hill and approaching along [address] from the west, the angle of buildings means that the appeal site and castle are only in view together briefly. From the other side of the road and top of [address], the Castle and [name], and hence the appeal site, are visible in the same line of sight. But this is only as part of a much wider and extensive townscape, with the large [name] building and its long and deep high-level cream/white fascia somewhat dominating the view. The pavement area, and hence appeal site, and row of shops beneath the [name] canopy somewhat recede into the wider streetscene. Hence, with the local topography, relative locations of buildings to each other, the substantial separation distance and intervening town centre uses and buildings, including busy roads, the appeal site has a neutral effect on the setting and hence significance of the Castle.

The proposed of the digital totem sign would have no effect on the setting of the Castle when beside the sign, as there is no intervisibility between the two sites. . When viewed from further afield, the scale of the proposed digital totem in relation to the size of the [name] and intervening townscape of roads and buildings would ensure that the setting of [name] would be preserved.

I acknowledge that there is a general increasing shift towards the use of digital displays and they can be seen in a variety of forms and locations in some of our towns and cities. They can offer flexible signage and be used to convey local messages, although there is no substantive evidence before me to suggest how this would be used. There is also little substantive evidence to suggest how the digital screens would promote the town centre and increase footfall and economic activity, as the appellant suggest they would, when the proposal is cited as being an opportunity for commercial advertising. For example, there is nothing to indicate the displays would be interactive and allow visitors or residents to access useful information about the town, if they are just displaying advertisements.

For the reasons above, I conclude that the proposed internally illuminated double-sided digital display unit would be an overbearing, incongruous and visually intrusive feature in the street scene that would material and unacceptably harm the visual amenity of the area. As the appeal site and street scene are an integral element of the CA, the proposal would also fail to preserve the character and appearance of the CA.

I have taken into account Policies D12 and S9 of the Dudley Borough Development Strategy and Policies S5 and 22 of the Dudley Area Action Plan. These collectively seek, amongst other things, to resist proposals that would have a detrimental effect on the visual amenity and character of an area, including conservation areas, so are material in this case, as is the Council’s Planning Guidance Note No.11 ‘[name]. [name] have concluded that the proposal would harm visual amenity, the proposal would conflict with the aforementioned policies.

As the proposal would not harm the setting of [name], also a Scheduled Monument, there would be no conflict with Policy S15 of the Dudley Borough Development Strategy, which seeks to ensure proposals do not affect the integrity of Scheduled Monuments, amongst other things.

For the reasons set out above, the appeal is dismissed.