Localism Bill

Memorandum submitted by the Outdoor Media Centre (L 126)

Preamble

1. The Outdoor Media Centre (OMC), formerly the Outdoor Advertising Association , is the t rade and m arketing body rep resenting the interests of its member companies in the outdoor advertising industry that, collectively, represent 96% of advertising expenditure in that medium. The activities of the OMC fall broadly into two categories. Firstly, the OMC acts as a provider of data demonstrating the benefits of outdoor advertising compared to other media in order to promote the medium in order to encourage advertisers, clients and specialists to invest in it . Secondly, the OMC deals with a range of operational issues around outdoor advertising – for example in respect of health and safety, the environment and planning regulations. It is in this second capacity that the OMC submits this Memorandum to the Scrutiny Unit ahead of the resumption by the Public Bill Committee of its line-by-line scrutiny of the Localism Bill on 1 March 2011. Further information about the OMC and its membership can be found at the following location: http://www.outdoormediacentre.org.uk/

Summary

2. The OMC supports the vast majority of the objectives contained within the Localism Bill as it pertains to advertising – such as restricting the placement of advertising trailers in fields as well as fly-posting and graffiti - with one minor, but important, exception, which can be found in Clause 106 ("Powers in relation to: unauthorised advertisements; defacement of premises"). A series of simple amendments to that provision would, however, serve to render it equitable via the introduction of a right of appeal under proposed new Section 225A ("Power to remove structures used for unauthorised display") of the amended Town and Country Planning Act 1990 (‘the 1990 Act’) that Clause 106 of the Localism Bill would import into that earlier statute. The amendments that the OMC would propose be moved to address the issue can be found at Annex 1. In order to demonstrate what the amendments would look like on the face of the Bill, the OMC has produced Annex 2 with the relevant new provisions highlighted in underlined and emboldened text.

Reasoned justification for amendments to Clause 106

3. As set out above, the OMC and its members support the extension of the powers available to local planning authorities under section 225 ("Enforcement of control over advertisements") of the 1990 Act that Clause 106 would import into that earlier legislation. For example, it is only right and proper that councils should have the ability to remove illegal advertisement displays and apparatus. Indeed, the OMC are taking concomitant steps to curtail money supply to illegal locations and rogue operators.

4. Clause 106, by inserting proposed new section 225A into the 1990 Act, would substitute the current provisions of section 11 ("Advertising: measures to be taken on surfaces") of the London Local Authorities Act 1995 (‘the 1995 Act’) so that they might be applied beyond the capital to the rest of England. It is notable, however, that a number of High Court judges have chosen to describe section 11 of the 1995 Act as a draconian measure precisely because it lacks an appeal process. The absence of such a process leaves no accessible mechanism to challenge capricious use of the power below judicial review: a proportionate check and balance against capricious use is therefore lacking. Judicial review represents a disproportionately expensive, convoluted and remote tribunal to hear cases when issues of fact are in dispute. In line with the overall objectives of the Localism Bill, it would be far preferable for such matters to be considered locally in a Magistrates’ Court rather than in the High Court. Were new section 225A to be inserted into the 1990 Act in its current form, it would represent a serious impediment to justice. This is because it would deter a media owner, acting on rational commercial criteria, from challenging the possibly erroneous use of a power by a local planning authority, due simply to the significant legal costs depriving the parties involved from seeing a just resolution arrived at one way or the other.

5. It is noteworthy in this context that in London where a notice is issued under section 11, but remains "un-actioned" as a result of the parties involved failing to reach a resolution following, for example, the provision by a media owner of contrary evidence as to the existence of rights to the local planning authority and the opportunity even of judicial review has passed, creates great uncertainty. There are currently over 250 cases falling into that "un-actioned" category in the territorial extent covered by the 1995 Act. Without the existence of a lower tier appeal mechanism against such notices being issued under section 225A, the problems identified in London would be replicated nationwide leading to many more judicial review procedures being pursued, at least in those circumstances where the commercial case makes it viable (see Paragraph 4 above). In those cases where that course of action is unviable commercially, natural justice is not being served.

6. In order to address this problem, the OMC would support the right to appeal notices in a Magistrates’ Court that would exist under proposed new section 225C ("Right to appeal against notice under section 225B") in respect of those issued under proposed new section 225B ("Remedying persistent problems with unauthorised advertisements") being extended to apply in respect of notices issued under proposed new section 225A of the 1990 Act. A number of advantages of adopting such an approach suggest themselves, not the least of which would be the provision of an equitable and consistent mechanism for challenging notices. Those advantages might include:

· The right to launch an appeal in the local Magistrates’ Court (rather than having to resort to judicial review in the High Court) would provide for a speedier resolution for both the local planning authority and the media owner concerned.

· Elimination of use of the precious time of the High Court on relatively minor issues.

· The lowering of any financial barrier to accessing justice what would otherwise exist, rendering the process more cost-effective for all the parties involved.

· The use of a local tribunal (rather than the relatively remote judicial forum of the High Court) would mean that arrival at a judgement on an issue affecting a neighbourhood would be taking place at the most appropriate level, namely the community one.

7. Whilst it would be possible to make the case that the burden on Magistrates’ Courts would increase, the number of cases brought before them would almost certainly diminish within a relatively short period of time. This is because as the procedure became established and was seen to be effective, energies would only be expended on those cases where one side or the other considered there to be a genuine chance of having a ruling in their favour. Furthermore, with the likelihood of notices of a capricious nature being issued substantially reduced, because of the duty that would be on local planning authorities to produce firm evidence before issuing a notice in the first place, the number of speculative challenges that would actually be pursued would soon be minimal.

Significant court judgements

8. Reference has been made in Paragraph 4 above to the view of the High Court that the absence of an appeal mechanism in section 11 of the 1995 Act was "draconian". Judgements dating from 2003 and 2009 respectively use this adjective to describe section 11, whilst both those rulings have themselves been cited and referenced by other judges in their own subsequently, without adding any new comments.

9. The first of these was Collins LJ in Maiden v London Borough of Lambeth in a ruling of 9 May 2003. In paragraph 5 of that judgement, section 11 was described thus: "This is a power which enables an authority to remove an asset of an individual without compensation and there is no right of appeal." In p aragraph 88, the judgement goes on to state: " It is noted that section 11 is all or nothing. There is no power to require the removal of an offending extra. If Mr Lowe's submission is right, once something is done, which in fact creates a breach of the condition in 13(1), the deemed consent disappears and it is not possible to repair the situation. That is indeed a draconian provision."

10. The second of these was Mr Justice Irwin in Clear Channel v London Borough of Hammersmith and Fulham in a ruling of 27 February 2009. In paragraph 27 of that judgement it was observed that: "The section 11 notice is indeed a draconian procedure, because there is no appeal, by way of contrast with a notice of discontinuance under Reg u lation 8 of the 2007 Regulations. " [ The secondary legislation referred to in the above judgment is the Town and Country Planning (Control of Advertisements) ( England ) Regulations 2007 (Statutory Instrument No. 2007/783) , as subsequently amended the same year (by Statutory Instrument No. 2007/1739). Regulation 8 is entitled "Discontinuance of deemed consent". ]

Conclusion

11. The OMC has set out in some detail above the scope for Clause 106, if adopted in is current form, to impact detrimentally on the member companies it represents in what is a highly responsible industry. The Public Bill Committee scrutinising the Localism Bill has within its power the capacity to ensure that such companies do not have limitations placed on their ability to access justice in those circumstances where a local planning authority may issue a notice, which they may regard as unfair, under proposed new section 225A of the 1990 Act. The OMC therefore urges the Committee to adopt the amendments set out in Annex 1 to this Memorandum in order to ensure that the Localism Bill facilitates such access at a local level, not least as this would appear to be within the spirit of the draft legislation as a whole.

February 2011

Annex 1

PROPOSED AMENDMENTS TO CLAUSE 106 OF THE LOCALISM BILL (as introduced)

AS RECOMMENDED BY THE OMC

Clause 106, page 79, line 30, at end insert –

‘and (c) unless an appeal is submitted under subsection (16),’

Clause 106, page 80, line 26, at end insert –

‘(16) Power under subsection (1) is subject to the right of appeal under section 225C.’

Clause 106, page 82, line 11, leave out ‘notice under section 225B’ and insert ‘notices under sections 225A or 225B’

Clause 106, page 82, line 12, leave out ‘section 225B(2)’ and insert ‘section 225A(3), 225A(5) or 225B(2)’

Clause 106, page 82, line 22, leave out ‘of premises’ and insert ‘of a display structure or premises’

Clause 106, page 82, line 23, leave out ‘section 225B(3) and insert ‘section 225A(5) or 225B(3)’

Clause 106, page 82, line 26, leave out ‘surface concerned’ and insert ‘surface or display structure concerned’

Clause 106, page 82, line 38, leave out ‘section 225B(2)’ and insert ‘section 225A(3), 225A(5) or 225B(2)’

Clause 106, page 82, line 42, leave out ‘section 225B(10)(b)’ and insert ‘section 225A(7) or 225B(10)(b)’

Annex 2

PROPOSED AMENDMENTS TO CLAUSE 106 OF THE LOCALISM BILL (as introduced)

AS RECOMMENDED BY THE OMC AS THEY WOULD APPEAR ON THE FACE OF THE LEGISLATION IF ADOPTED

106     

Powers in relation to: unauthorised advertisements; defacement of premises

(1)   

In Part 8 of the Town and Country Planning Act 1990 (special controls) in

Chapter 3 (advertisements) after section 225 insert-

"225A   

Power to remove structures used for unauthorised display

(1)   

Subject to subsections (2), (3) and (5), the local planning authority for an

area in England may remove, and then dispose of, any display

structure-

(a)   

which is in their area; and

(b)   

which, in the local planning authority’s opinion, is used for the

display of advertisements in contravention of regulations made

under section 220.

(2)   

Subsection (1) does not authorise the removal of a display structure in

a building to which there is no public right of access.

(3)   

The local planning authority may not under subsection (1) remove a

display structure unless the local planning authority have first served a

removal notice on a person who appears to the local planning authority

to be responsible for the erection or maintenance of the display

structure.

(4)   

Subsection (3) applies only if there is a person-

(a)   

who appears to the local planning authority to be responsible

for the erection or maintenance of the display structure; and

(b)   

whose name and address are either known by the local

planning authority or could be ascertained by the local planning

authority after reasonable enquiry.

(5)   

If subsection (3) does not apply, the local planning authority may not

under subsection (1) remove a display structure unless the local

planning authority have first-

(a)   

fixed a removal notice to the display structure or exhibited a

removal notice in the vicinity of the display structure; and

(b)   

served a copy of that notice on the occupier of the land on which

the display structure is situated.

(6)   

Subsection (5)(b) applies only if the local planning authority know who

the occupier is or could identify the occupier after reasonable enquiry.

(7)   

Where-

(a)   

the local planning authority has served a removal notice in

accordance with subsection (3) or (5)(b), and

(b)   

the display structure is not removed within the period specified

in the removal notice, and

(c) unless an appeal is submitted under subsection (16),

   

the local planning authority may recover, from any person on whom

the removal notice has been served under subsection (3) or (5)(b),

expenses reasonably incurred by the local planning authority in

exercising the local planning authority’s power under subsection (1).

(8)   

Expenses are not recoverable under subsection (7) from a person if the

person satisfies the local planning authority that the person was not

responsible for the erection of the display structure and is not

responsible for its maintenance.

(9)   

Where in the exercise of power under subsection (1) any damage is

caused to land or chattels, compensation may be recovered by any

person suffering the damage from the local planning authority

exercising the power, but compensation is not recoverable under this

subsection or section 325(6)-

(a)   

for damage caused to the display structure; or

(b)   

for damage reasonably caused in removing the display

structure.

(10)   

The provisions of section 118 apply in relation to compensation under

subsection (9) as they apply in relation to compensation under Part 4.

 

 

(11)   

In this section "removal notice", in relation to a display structure,

means notice-

(a)   

stating that in the local planning authority’s opinion the display

structure is used for the display of advertisements in

contravention of regulations under section 220;

(b)   

stating that the local planning authority intend after a time

specified in the notice to remove the display structure; and

(c)   

stating the effect of subsections (7) and (8).

(12)   

A time specified under subsection (11)(b) may not be earlier than the

end of 22 days beginning with the date of the notice.

(13)   

In this section "display structure" means (subject to subsection (14))-

(a)   

a hoarding or similar structure used, or designed or adapted for

use, for the display of advertisements;

(b)   

anything (other than a hoarding or similar structure)

principally used, or designed or adapted principally for use, for

the display of advertisements;

(c)   

a structure that is itself an advertisement; or

(d)   

fitments used to support anything within any of paragraphs (a)

to (c).

(14)   

Something is a "display structure" for the purpose of this section only

if-

(a)   

its use for the display of advertisement requires consent under

this Chapter, and

(b)   

that consent has not been granted and is not deemed to have

been granted.

(15)   

In subsection (13) "structure" includes movable structure.

(16) Power under subsection (1) is subject to the right of appeal under section 225C.

225B    

Remedying persistent problems with unauthorised advertisements

(1)   

Subsections (2) and (3) apply if the local planning authority for an area

in England have reason to believe that there is a persistent problem

with the display of unauthorised advertisements on a surface of-

(a)   

any building, wall, fence or other structure or erection; or

(b)   

any apparatus or plant.

(2)   

The local planning authority may serve an action notice on the owner

or occupier of the land in or on which the surface is situated.

(3)   

If after reasonable enquiry the local planning authority-

(a)   

are unable to ascertain the name and address of the owner, and

(b)   

are unable to ascertain the name and address of the occupier,

   

the local planning authority may fix an action notice to the surface.

(4)   

For the purposes of this section "an action notice", in relation to a

surface, is a notice requiring the owner or occupier of the land in or on

which the surface is situated to carry out the measures specified in the

notice by a time specified in the notice.

(5)   

A time may be specified in an action notice if it is a reasonable time not

earlier than the end of 28 days beginning with the date of the notice.

 

(6)   

Measures may be specified in an action notice if they are reasonable

measures to prevent or reduce the frequency of the display of

unauthorised advertisements on the surface concerned.

(7)   

The time by which an owner or occupier must comply with an action

notice may be postponed by the local planning authority.

(8)   

This section has effect subject to-

(a)   

the other provisions of the enactments relating to town and

country planning;

(b)   

the provisions of the enactments relating to historic buildings

and ancient monuments; and

(c)   

Part 2 of the Food and Environmental Protection Act 1985

(which relates to deposits in the sea).

(9)   

Subsection (10) applies if-

(a)   

an action notice is served under subsection (2) or fixed under

subsection (3); and

(b)   

the measures specified in the notice are not carried out by the

time specified in the notice.

(10)   

The local planning authority may-

(a)   

carry out the measures; and

(b)   

recover expenses reasonably incurred by the local planning

authority in doing that from the person required by the action

notice to do it.

(11)   

Power under subsection (10)(a) is subject to the right of appeal under

section 225C.

(12)   

Where in the exercise of power under subsection (10)(a) any damage is

caused to land or chattels, compensation may be recovered by any

person suffering the damage from the local planning authority

exercising the power, but compensation is not recoverable under this

subsection for damage reasonably caused in carrying out the measures.

(13)   

The provisions of section 118 apply in relation to compensation under

subsection (12) as they apply in relation to compensation under Part 4.

(14)   

The local planning authority may not recover expenses under

subsection (10)(b) in respect of a surface that-

(a)   

forms part of a flat or a dwellinghouse ;

(b)   

is within the curtilage of a dwellinghouse ; or

(c)   

forms part of the boundary of the curtilage of a dwellinghouse .

(15)   

Each of sections 275 and 291 of the Public Health Act 1936 (provision

for authority to agree to take the required measures at expense of

owner or occupier, and provision for expenses to be recoverable also

from owner’s successor or from occupier and to be charged on

premises concerned) applies as if the reference in that section to that

Act included a reference to this section.

(16)   

In this section-

" dwellinghouse " does not include a building containing one or

more flats, or a flat contained within such a building;

 

"flat" means a separate and self-contained set of premises

constructed or adapted for use as a dwelling and forming part

of a building from some other part of which it is divided

horizontally;

"unauthorised advertisement" means an advertisement in respect

of which an offence-

(a)   

under section 224(3), or

(b)   

under section 132 of the Highways Act 1980

(unauthorised marks on highway),

is committed after the coming into force of this section.

225C    

Right to appeal against notices under sections 225A or 225B

(1)   

A person on whom notice has been served under section 225A(3), 225A(5) or 225B(2) may

appeal to a magistrates’ court on any of the following grounds-

(a)   

that there is no problem with the display of unauthorised

advertisements on the surface concerned or any such problem

is not a persistent one;

(b)   

that there has been some informality, defect or error in, or in

connection with, the notice;

(c)   

that the time within which the measures specified in the notice

are to be carried out is not reasonably sufficient for the purpose;

(d)   

that the notice should have been served on another person.

(2)   

The occupier or owner of a display structure or premises which include a surface to which a

notice has been fixed under section 225A(5) or 225B(3) may appeal to a

magistrates’ court on any of the following grounds-

(a)   

that there is no problem with the display of unauthorised

advertisements on the surface or display structure concerned or any such problem

is not a persistent one;

(b)   

that there has been some informality, defect or error in, or in

connection with, the notice;

(c)   

that the time within which the measures specified in the notice

are to be carried out is not reasonably sufficient for the purpose.

(3)   

So far as an appeal under this section is based on the ground mentioned

in subsection (1)(b) or (2)(b), the court must dismiss the appeal if it is

satisfied that the informality, defect or error was not a material one.

(4)   

If an appeal under subsection (1) is based on the ground mentioned in

subsection (1)(d), the appellant must serve a copy of the notice of

appeal on each person who the appellant considers is a person on

whom the notice under section 225A(3), 225A(5) or 225B(2) should have been served.

(5)   

If-

(a)   

notice under section 225A(3), 225A(5) or 225B(2) is served on a person, and

(b)   

the local planning authority bring proceedings against the

person for the recovery under section 225A(7) or 225B(10)(b) of any

expenses,

   

it is not open to the person to raise in the proceedings any question which the person could have raised in an appeal under subsection (1).