Christopher Jeyes
On 4 March 2026, Mr Justice Choudhury handed down judgment in Fantasia Productions Ltd v London Borough of Redbridge [2026] EWHC (Admin). The case came before the High Court by way of case stated from Snaresbrook Crown Court. It concerned a deceptively simple but previously unsettled question: where a person faces prosecution for displaying an advertisement without consent under section 224(3) of the Town and Country Planning Act 1990, who bears the burden of proving whether consent existed?
The High Court dismissed the appeal. It confirmed that the burden lies on the advertiser to prove, on the balance of probabilities, that it had the necessary consent to display the advertisements in question.
Background
Fantasia Productions Ltd operates a travelling circus. In September 2023, its sole director, Mr Wingate, displayed advertising posters on railings at Barkingside Park and Barkingside Police Station in the London Borough of Redbridge.
The advertisements fell within Class 3F of Schedule 3 to the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, which covers advertisements for travelling circuses, fairs and similar entertainment.
Class 3F advertisements benefit from deemed consent under Part 2 of the 2007 Regulations. This means advertisers do not need to make a formal application to the local planning authority. However, deemed consent is conditional on compliance with the standard conditions in Schedule 2. The first condition states that no advertisement may be displayed without the permission of the site owner or another person entitled to grant permission.
The London Borough of Redbridge prosecuted Fantasia for displaying advertisements in contravention of the Regulations.
Mr Wingate argued that he had received oral permission from a park ranger for the park railings and from a police officer for the police station railings. However, he had no written record of either conversation and could not identify either individual.
Following conviction at Barkingside Magistrates’ Court, Fantasia appealed to the Crown Court. The Crown Court dismissed the appeal on two of the three charges.
The Crown Court ruled that the burden of proof on the question of consent lay on the appellant. It applied the principle in R v O’Brien and Hertsmere Borough Council (1997) 74 P&CR 264.
The Question for the High Court
The Crown Court stated a case for the opinion of the High Court on the following question:
Where an offence relating to a Class 3F advertisement is alleged under section 224(3) of the TCPA 1990, was the Crown Court correct to find that the burden of proof, on the balance of probabilities, lay upon the appellant to show that it had the requisite permission, rather than on the respondent to prove to the criminal standard that it did not?
The Appellant’s Arguments
On behalf of Fantasia, counsel argued that the absence of permission formed part of the offence and that the prosecution should therefore prove it beyond reasonable doubt.
The appellant submitted that nothing in the language of the TCPA 1990 or the 2007 Regulations imposed a reverse burden. Reliance was also placed on the specific defence provided by section 224(5) and (6). Fantasia argued that Parliament clearly knew how to create an express reverse burden when it intended to do so.
The appellant further submitted that O’Brien was distinguishable because it concerned the predecessor 1992 Regulations and pre-dated the Human Rights Act 1998. Fantasia also argued that any reverse burden was disproportionate under the principles established in Sheldrake v DPP [2004] UKHL 43.
The Decision
Choudhury J dismissed the appeal.
The court agreed with the submissions made on behalf of the London Borough of Redbridge and confirmed that the burden of proving consent lies on the advertiser.
The principle from O’Brien applied, supported by section 101 of the Magistrates’ Courts Act 1980. The judgment also relied on the longstanding rule articulated by Bayley J in R v Turner (1816) 5 M&S 206. Where facts lie particularly within the knowledge of one party, that party bears the burden of establishing them.
The court rejected the argument that O’Brien could be distinguished because it concerned different regulations or a different class of advertisement.
The court also rejected the argument that the reverse burden was incompatible with Article 6(2) of the European Convention on Human Rights.
Applying the framework set out in Sheldrake, the court found the reverse burden proportionate. The offence was regulatory in nature, carried only a financial penalty, and concerned facts within the knowledge of the person who displayed the advertisement.
Practical Significance
The decision provides welcome clarity for local authorities enforcing the advertisement control regime.
It confirms that where an advertiser claims to have had consent, the advertiser must prove it. This point is especially important in prosecutions involving temporary advertisements, where advertisers commonly assert oral permissions that may later prove difficult to verify independently.
For advertisers, the message is straightforward: obtain consent in a form that can later be evidenced and retain a record of it. An unsubstantiated assertion that a stranger gave verbal permission is unlikely to discharge the burden.
Chris Jeyes appeared on behalf of the London Borough of Redbridge in the High Court; Richard Davies for the Borough in the Crown Court, both instructed by the Borough Legal Department.
Article FAQ’s
What was the main issue in Fantasia Productions Ltd v London Borough of Redbridge?
The case considered who bears the burden of proving advertisement consent under section 224(3) of the Town and Country Planning Act 1990. The High Court confirmed that the advertiser must prove consent existed.
What is deemed consent for advertisements?
Certain advertisements benefit from “deemed consent” under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007. This means advertisers do not need formal planning permission if they comply with the relevant conditions.
Why did the advertiser lose the appeal?
The advertiser claimed to have received verbal permission to display the advertisements. However, it could not provide evidence of that consent or identify the individuals who allegedly granted it.
Why is the decision important for local authorities?
The judgment gives local authorities greater clarity when enforcing advertisement control laws. It confirms that advertisers must prove consent rather than requiring councils to prove consent did not exist.
What should advertisers do before displaying temporary advertisements?
Advertisers should obtain permission in a form that can later be evidenced, such as written consent or email confirmation. They should also keep records in case a dispute arises later.