Article first appeared in June 2014 NAPE newsletter.
Enforcing against advertisements that do not have express or deemed consent under the Control of Advertisement Regulations is frequently seen as a low priority activity, but yet can have a great effect on the amenity of an area. Many adverts will be gross, insensitive and out of keeping with their surroundings, and indeed some may even be a risk to public safety if located on, for example, dangerous junctions.
Allowing the installation of illegal adverts is seen as a quick financial win for landowners and advertising agents as they both get paid for as long as the advert is displayed, with the previous maximum £2,500 fine seen as simply a ‘business cost’.
However, with statutory fines for advertising offences now going up to a £10,000 maximum, POCA frequently being used to great effect, and the introduction of new powers under the Localism Act 2011 that put authorities across the country on a level playing field with London, now is a better time than ever to take back control of advertisements in your area.
Remember that whichever enforcement option you undertake, if the offending party reacts by submitting an application; ensure you tell them to remove the offending sign, as its continued presence is still illegal.
The options available include:
Prosecution: Utilising s.224 of the 1990 Act and Regulation 30 of the Control of Advertisement Regulations 2007 (the ‘Regulations’), even the threat of prosecution can be a useful tactic whilst other processes run their course. Larger corporate advertising companies in particular, cannot afford the reputational risk of convictions.
Remember here that all it takes to make out an offence is a photograph of one illegal advertisement on one day. A number of offences are of course helpful, particularly to maximise POCA confiscation orders.
Prosecution can be brought against either the owner/occupier of land on which it is displayed or the person whose goods/trade/activity are advertised by the advertisement.
The only defences available at trial are that the advertisement was displayed without the owner/occupier’s knowledge, or that s/he took all reasonable steps to prevent display or secure the removal of the advertisement.
Enforcement Notice: An infrequently used power, given the time limits and appeal mechanisms inherent in the Enforcement Notice process, however it is a remedy open to the LPA. S.55(5) of the 1990 Act provides:
Without prejudice to any regulations made under the provisions of this Act relating to the control of advertisements, the use for the display of advertisements of any external part of a building which is not normally used for that purpose shall be treated for the purposes of this section as involving a material change in the use of that part of the building.
Obliteration: The original, pre-Localism Act power available to authorities under s.225 of the 1990 Act to ‘obliterate’ or remove any ‘placard or poster’ (note: this has a literal meaning and is NOT the same as ‘advertisement’ under the 1990 Act) displayed in contravention of the Regulations in their area. This is a quick and easy power that LPAs should consider using particularly where they have problems with bills and flyposting. All that is required is notice being served of the LPA’s intention with at least two days warning period.
Structure Removal: s.225A of the 1990 Act, introduced by the Localism Act, giving all LPAs the ability to remove and then destroy any ‘display structure’ used for the display of advertisements in their area, and reclaim the costs of doing so.
‘Display structure’ is defined by s.225A (13) as:
•a hoarding or similar structure used, or designed or adapted for use, for the display of advertisements;
•anything (other than a hoarding or similar structure) principally used, or designed or adapted principally for use, for the display of advertisements;
•a structure that is itself an advertisement; or
•fitments used to support anything within any of paragraphs (a) to (c)
To enable structure removal, notice should be served of the LPA’s intention with at least 22 days’ warning period.
The recipient can appeal to the Magistrates’ Court under s.225B.
Persistent Problems: s.225C of the 1990 Act, introduced by the Localism Act. This power gives all LPAs the ability to serve an ‘Action Notice’ where they have reason to believe that there is a persistent problem with the display of unauthorised advertisements on a surface of: any building, wall, fence or other structure or erection; or any apparatus or plant in their area, setting out the reasonable steps required to be taken not less than the end of 28 days from the date of the notice for the removal of the advertisements.
If the Action Notice is not complied with, the LPA can take these actions itself and recover the costs (save where the surface is a surface of a dwellinghouse).
The Notice can also be appealed by the recipient to the Magistrates’ Court under s.225D.
Defacement of Premises: s.225F of the 1990 Act, introduced by the Localism Act, giving LPAs the ability to require, by notice, the removal or obliteration of a sign (note, this terminology includes any ‘writing, letter, picture, device or representation’, but not an ‘advertisement’) that is detrimental to the amenity of the area or offensive and is on the surface of a premises that is readily visible from a place to which the public have access. There are also special rules for this section in relation to statutory undertaker’s operational land, bus shelters and post boxes.
If the removal is not undertaken, the LPA can undertake it and recover reasonable costs, however costs are NOT repayable when action is taken against surface of part/boundary/curtilage of flat or dwellinghouse.
A notice under this section can be appealed under s.225I.
Statutory Undertakers: It is important to note the effects of s.225K, which limits the scope of ‘Removal Notices’, ‘Action Notices, and ‘Defacement of Premises’ Notices, and taking steps in lieu of these notices, when the land in question is operational land of statutory undertakers.
Injunctions: Utilising s.187B of the 1990 Act and normally used as a pre-emptive measure.
LPA’s must show the Court that the injunction is:
•necessary or expedient to initiate injunctive proceedings
•a reaction to clear evidence that a breach of planning, has already occurred, or is likely to occur, on land
•a proportionate remedy in the circumstances
•other methods to alleviate the breach of planning control would be ineffective.
In summary therefore:
•There are plenty of options to enforce
•The various new powers help with the problems of persistent offending.
•Given time pressures, there are pros and Cons to all.
•Always, remember…the threat of prosecution for owners/occupiers can be potent
For planning enforcement assistance at every stage, including site visits and appeals, contact Ivy Legal, a law firm specialising in undertaking planning enforcement for local authorities.