Who bears the burden?

On 4 March 2026, Mr Justice Choudhury handed down judgment in Fantasia Productions Ltd v London Borough of Redbridge [2026] EWHC (Admin), an appeal by way of case stated from Snaresbrook Crown Court. The case concerned a deceptively simple but previously unsettled question: where a person is prosecuted 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, confirming 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, meaning that no formal application to the local planning authority is required. However, deemed consent is conditional on compliance with the standard conditions set out in Schedule 2. The first of those conditions provides that 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.

The London Borough of Redbridge prosecuted Fantasia for displaying advertisements in contravention of the Regulations. Mr Wingate’s case was that he had received oral permission from a park ranger (in respect of the park railings) and from a police officer in the car park (in respect of the police station railings). 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, which 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, applying the principle set out 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, it was argued that the absence of permission was properly to be regarded as an element of the offence which the prosecution was required to prove 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), which, it was said, demonstrated that Parliament knew how to create an express reverse burden when it intended to do so. The appellant further submitted that O’Brien was distinguishable, having been decided under the predecessor 1992 Regulations and before the coming into force of the Human Rights Act 1998, and 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 confirmed, in agreement with the submissions made on behalf of the London Borough of Redbridge, that the burden of proving consent lay on the advertiser. The principle from O’Brien, supported by s.101 MCA 1980, and itself rooted in the longstanding rule articulated by Bayley J in R v Turner (1816) 5 M&S 206, applied: where facts are peculiarly within the knowledge of one party, the burden of establishing those facts rests on that party.

The court was not persuaded that O’Brien could be distinguished on the basis that it concerned different regulations or a different class of advertisement. Nor was it accepted 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 to be proportionate in circumstances where the offence is regulatory in nature, carries only a financial penalty, and the relevant facts are 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, it is for the advertiser to prove it. This is of particular practical importance in prosecutions involving temporary advertisements, where oral permissions are commonly asserted but may be 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 of Drystone Chambers appeared on behalf of the London Borough of Redbridge in the High Court; Richard Davies, also of Drystone Chambers, appeared for the Borough in the Crown Court, both instructed by the Borough Legal Department.