Advertisements - Public forum - Planning Advisory Service (PAS)

Not sure why you have 'missed the boat to prosecute' as I am not aware of any timescale in which to take action.

Adverts are not subject to Enforcement Action - rather you should prosecute under the Advert Regulations. Normaly the threat of prosecution is sufficient to get signs removed.

There may be some embarrassment as to why it has taken so long to act but the Magistrates will only want to be satisfied that a breach has occurred and is continuiing.

Note a canopy by itself needs planning permission but once it has the shop name on it it becoems an advert and if doesn't breach the nrmal tests - non illuminated, not higher than bottom of first floor windows etc., it ahs deemed consent and planning permission is assumed. It is however challengeable under Regualtion 8 even if it has deemed consent.

I agree with Keith, there is no time limit on prosecutions and as such I would go down that route.Howvere, we have recently strated issuing 'fixed penelty' notices for illegal advertisments which is working well at getting them removed and bringing in a fine of £75 which helps cover the costs.We then only prosecute (with the need for creating a full prosecution file) on repeat offenders.

keith/John, there are indeed time limits on the hability to commence prosecution proceedings. See s.224 (7)&(8) of the 1990 Act.

If development has taken place in relation to an advert then that development can be tackled by mainstream enforcement action.

Tony

Can I direct you to Development Control Practice s. 4.3644 which states

"Prior to the introduction of the new Advertisement Regulations  in 1992, it was possible for use to be made of sec. 224 of the 1990 Act that extended the power to serve an enforcement notice to matters covered by the Regulations. However, the 1992 regulations make no provision for this and therefore there is now no authority for directing a conventional enforcement notice against an advertisement. Although a messy overlap of powers has now been tidied up, the loss of the greater penalties available when using planning enforcement procedures may be regretted by local authorities"

My copy indicates this page was last updated in 2007 so unless the situation has changed again I believe the enforcement route is not available.

Thanks all for your comments. As Tony states, it has to be within 6 months of the offence coming to the prosecutors notice, that is where we missed it for various reasons.    I was wondering if anyone had taken mainstream enforcement action for adverts because development had taken place. 

Keith,

My earlier message was carefully worded. I was not suggesting that an advert itself could be subject to mainstraem enforcement action. What I meant was, for example, a canopy projecting from the front of a shop that requires planning permission is, in my view, not immune from enforcemnt action just because it has the shop name (or any other wording) on it. 

Richard Harwood QC in his book Planning Enforcement says that conventional planning enforcement remedies can be taken for adverts.  Where the display of adverts is in accordance with the Regulations planning permission is deemed to have been granted.  Consequentially enforcement and stop notices can be served where advertising consent has not been obtained and development has taken place.  

I was wondering if anyone has done this and if so what happened. 

Thanks Tony

at risk of sounding like I am selling Development Control Practice, section 13.412 says

"Any doubt that planning permission is required for a blind or canopy if used for the display of advertising was clarified by the Planning and Compensation Act 1991 which defined an advertisement as including an awning or blind."

Confusingly it then states in section 13.433

".. many blinds and canopies may be considered "advertisements" and control is exercised under the Advertisement Regualtions and few cases now require planning permission."

My view is that if the canopy has lettering or a symbol on it it is an advert, if it is plain it is an alteration to a shopfront requiring planning permission.

Regulation 4(1) says: "[...] no advertisement may be displayed unless consent for its display has been granted [...]".  Regulation 30(1) then says: "[...] a person displaying an advertisement in contravention of these Regulations shall be liable, on summary conviction of an offence under section 224(3) of the Act, to a fine of an amount not exceeding level 4 on the standard scale [...].
To my mind every day an advertisement is displayed without consent, regulation 4 is contravened and an offence is committed.  The 6 month time limit would therefore start afresh every day.

I'm afraid that you are incorrect Paul. The display of the same advert in contrevention of the Regulations is an ongoing offence rather than a seperate offence each day. That is reflected in the fine structure after conviction i.e. 1/10th of the standard (level 4) fine for each additional day.

In addition, if you were correct, there would be no point at all in having the 6 months provision contained in s.224(7). 

I may be wrong, but I have always taken the view that Paul has given - that every day an advertisement is displayed can be looked upon as a new offence each time.  I have taken part in a number of advert prosecutions in different LPAs and have never been advised otherwise by colleagues, supporting legal teams or defendants, so I'd be happy to hear from other people's experience.  I remember one case from a couple of years ago (before the Localism Act came in)where an advertiser had been promising to remove a large advert for 5 years before I took on the case.  We prosecuted based on the date of the offence being when i gave him his final warning (so that was approx 5 years after the advert was first put up), he pleaded guilty, was given a £1,500 fine, and the sign was removed the next day.

However, Section 126(4) of the Localism Act 2011 now states that prosecution proceedings in relation to adverts may only be brought "within the period of 6 months beginning with the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings came to the prosecutor’s knowledge".  I believe this only applies to adverts that have first come to the LPAs attention after the Localim Act came into effect, which I think was around April 2012.

So, my opinion is if an advert has been up for say 1 year, but the LPA only become aware of it today (because someone has reported it), the LPA will have 6 months from today to start a prosecution.  I'm happy to hear views against this!

A "continuing offence" (to use the wording in reg. 30) means that an offence is committed each day.

If your interpretation (that breach of the Regulations is a one-off) were correct, the offence would be something like "a person who displays an advertisement for the first time in contravention of these Regulations...". 

You may not be aware, but a prosecution can be brought in respect of an advert that was displayed without consent even if the advert has since been removed - retrospectively in other words.  The general time limit for bringing a prosecution is 6 months from the date of the offence.  The purpose of section 224(7) is to extend that time limit by saying it is 6 months "from the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings came to the prosecutor's knowledge".