Planning control and advertisements

Traffic lights iStock 000003944828XSmall 146 x 219Polly Reynolds and Mary Tate consider the important role that local planning authorities have in relation to the control of advertisements.

Local planning authorities ('LPA's') are primarily responsible for the control of advertisements. Their duties include considering applications for permission to display advertisements and exercising enforcement powers over existing and unlawful advertisements.

What is an advertisement?

An advertisement is defined in the Town and Country Planning Act 1990 as "any word, letter, model, sign, placard, board, notice, awning, blind, device or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purposes of, advertisement, announcement or direction, and includes any hoarding or similar structure used or designed, or adapted for use, and anything else principally used, or designed or adapted principally for use, for the display of advertisements."

Is consent required for all advertisements?

The display of advertisements is controlled by the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 ("the Regulations"). All advertisements require consent from the LPA unless they are exempt or have deemed consent under the Regulations. Although, advertisers are advised to check with their LPA if they have any doubts as to whether consent is required.

Exempt advertisements

Under the Regulations, there are nine classes of advertisements that are exempt from advertisement control providing that the conditions and limitations for each class are met. Examples include traffic signs, national flags and advertisements displayed on enclosed land such as railway or bus stations.

Advertisements with deemed consent

There are 16 classes of advertisements that have the benefit of deemed consent under the Regulations providing that the conditions for each class are met. The conditions generally deal with the size, height and illumination of the advertisement. Examples include estate agent boards and local event notices.

Advertisements requiring express consent

If an advertisement does not fall within the exempt or deemed consent categories, then it will require express consent from the LPA. Examples include poster hoardings, externally illuminated signs and directional signs.

To obtain express consent, an advertiser must make an application to the LPA. On considering whether to consent to the advertisement, the LPA will consider the visual and aural amenity and interests of public safety of the advertisement. The LPA is not required to consider the content of the advertisement as offences to decency are not planning matters and are regulated by the Advertising Standards Agency.

If permission is granted, permission is usually for five years but can be shorter or longer. The advertisement may stay in position after the expiry of the permission unless the decision notice requires its removal. The LPA can seek to issue a discontinuance notice should the advertisement breach the conditions of the consent.

If a permission is refused or the LPA fails to respond within eight weeks, or an unreasonable condition is applied, the applicant can appeal to the planning inspectorate.

Enforcement of unauthorised advertisements

To display an unauthorised advertisement is a criminal offence. The LPA can issue proceedings in the magistrates court. However, unless the offence is ongoing or repeated, the LPA may not consider enforcement action to be necessary in the first instance.

LPAs are encouraged to liaise with the advertiser before commencing criminal proceedings to allow the advertiser time to comply with the Regulations. If the advertiser has still not complied with the Regulations within a certain time period, another notice can be served on all persons originally notified advising that the LPA intends to prosecute.

The maximum fine is currently £2,500 with an additional daily fine of £250 on conviction of a continuing offence.

Following a conviction of a criminal offence, if appropriate, the LPA can apply for a confiscation order under the Proceeds of Crime Act 2002. However, a confiscation order can only be applied for if it is thought that the advertiser has benefited financially from a criminal lifestyle or has been making money as a result of a breach of the Regulations. If the court makes a confiscation order, the recoverable amount is equal to the benefit obtained by the defendant from his conduct.

An advertisement must always have consent of the owner of the site or any other person entitled to grant permission, even if it has deemed consent, otherwise it is illegal.

Polly Reynolds is a Senior Associate and Mary Tate is an Associate at Veale Wasbrough Vizards. Polly can be contacted on 0117 314 5276 or byThis email address is being protected from spambots. You need JavaScript enabled to view it., while Mary can be reached on 0117 314 5624 or byThis email address is being protected from spambots. You need JavaScript enabled to view it..