Advertisements Q & A DCP Section 30

A good example of advertisement clutter at a roadside pub. Many of the signs and flags exhibited here do not need express consent under the Advertisement Regulations, although use of discontinuance powers could assist in reducing some of the visual harm being caused to a rural environment. This section is concerned with control of advertisements under The Town and Country Planning (Control of Advertisements) (England) Regulations 2007, referred to as the Regulations throughout this text. The complexities of this legal code are dealt with at (4.36) where it is explained that some advertisements are exempt from control and others enjoy deemed consent under the Regulations and do not, therefore, require express planning permission. Advertisements affixed to listed buildings also require listed building consent and this form of control is examined here.

Q & A    30.0/10

A shop owner has an existing illuminated box sign displayed with express consent and wishes to replace one of the panels to read "happy birthday" in stead of "birthdays".  The colours would remain the same.  Does the shop owner require further advertisement consent?

I do not have a definitive answer to this question. Does any reader have a view on the matter?.

Response

There is no definitive ruling. However, para. 9 of the Annex to Circular 5/92 is relevant. This states that "A change of occupancy of premises may sometimes result in a need for a minor change to an advertisement which has previously received the LPA's express consent. The Secretary of State considers it would be reasonable for LPAs to allow minor changes (e.g. when the name of the occupier changes, but the size and type of display otherwise remain substantially unaltered), without requiring another advertisement application." Although the case to which the enquiry related was not involved with change of occupancy, the Secretary of State's view would seem appropriate.

I had always believed that consent is given for the principle of the display, not for the contents of the advertisement. This view is based on my interpretation of Regulation 13 (2)(b) which states that express consent may be for the use of a particular site for the display or advertisements in a specified manner. If this were not to be the case a poster panel would need a new consent every time the poster was changed. However an Advertisement Control Officer at a recent hearing put me right by opining that consent would be required if a display was materially different from the former. In the particular example cited, however, the existing and proposed do not sound materially different. MH

Reg 4(3) of the Advert Regs gives the answer. The content of a sign is rarely subject to control and the change to "happy birthday" from "birthdays" would not require a fresh application for consent.

Planning Guidance (Wales) says that "…The control regime does not enable the authority to regulate the subject matter of any advertisement..",  therefore the sign can be changed to say anything without control.

I am dealing with an issue relating to an unauthorised café. I understand that enforcement action is about to be taken and one of the specified requirements is to be the removal of an internally illuminated fascia sign.  Can such a step only be authorised under the Advertisement Regulations?

I am assuming that the fascia sign does not have deemed or express consent under the Advertisement Regulations. It is established by case law that an enforcement notice relating to a material change of use may also require the removal of physical manifestations of that use. On this count a fascia sign may be held to be part and parcel of the unauthorised café use and its removal could form a valid requirement of any notice. An appeal case of relevance concerned  a 1993 enforcement notice relating to an unauthorised shopfront at a Swindon restaurant. The notice required removal of the associated fascia and projecting signs. It was accepted by the parties and an inspector that it was expedient for the signs to be dealt with under the notice rather than be the subject of separate action under the Advertisement Regulations.  In the event the notice was upheld with a requirement that the shopfront and the signs be removed. Any reader's views on this interesting question?

We have received a complaint from a resident regarding the use of a television screen for advertising in a filling station. The television is above the shop but below the gantry. There are speakers on all the petrol pumps and the sound is clearly audible from the road. Has anyone dealt with a similar situation?

It may be difficult to control this phenomenon under the Planning Acts or the Control of Advertisements Regulations. Have any readers investigated this matter?

Am I missing something with regard to banners? My reading of the Advertisement Regulations is that most of them require consent, yet no one seems to feel the need to apply and they are in profusion.

Although banners as such are not specifically mentioned in the Regulations, as the questioner states there are several circumstances whereby such signs could fall within control. However, nearly all the cases to come to appeal concern listed buildings. Does any reader have knowledge of specific policies related to the control of banner advertisements?

Response

Depending on their content, banners are "advertisements" within the statutory definition, and are controllable just like any other advertisement. Some may be exempted from control, such as on enclosed land, and some may have deemed consent.  There is no published national policy guidance specific to banners. This is long overdue as such advertising becomes more popular. Perhaps the DETR should take this on board as part of their present review of the Regulations.

My council is considering enforcement action against a fascia sign lit by three swan necked lamps. The owner of the premises maintains that the lamps may be retained provided that there are no light bulbs therein, and the fascia sign does not fall within control unless illuminated. Is there any case law to support action by this authority?

I cannot locate a precedent for this situation but the definition of an illuminated advertisement in the Advertisement Regulations states that it is an advertisement that is designed to be illuminated, "and which is so illuminated". It may reasonably be deduced from this that unless the lights are switched on the fascia sign would enjoy Part 5 deemed consent. It is, of course, open for your authority to consider whether the swan-necked lamps are controllable under the Planning Act as having a material effect on the external appearance of the building. It is possible that such an assertion could be sustained, depending on the circumstances of the case, but the four year immunity rule will need to be watched.

I am dealing with a case where my council is attempting to argue that the application of "one-way" material to the inside of window glass is development requiring planning permission. It is maintaining that there is "material effect on external appearance", but concedes that if applied externally the material could be classified as the "application of colour" and thus be permitted development by virtue of Part 2 Class C of the GPDO. A further question arises as to whether the window treatment is an advertisement as the window film contains logos.

The question of whether the application of such film is development by virtue of having a material effect on external appearance of the building, has to be preceded by a conclusion as to whether there is operational development at all. While the courts have held that painting could be a building operation I would have thought that the application of film to the internal face of a window is distinguishable. In addition consideration is still required as to whether the application of the film is an alteration "only affecting the interior of the building" and therefore not development by reason of section 55(2)(a) of the Town and Country Planning Act 1990.

I am sure that your authority is right in concluding that applied externally the film would be permitted development.

On the matter of whether the film could be considered to be an advertisement, the logos used could well bring the film within the statutory definition at section 336 of the Town and Country Planning Act 1990.  However, it is likely that the "display" would enjoy deemed consent because of Schedule 3 Class 12 of the current Advertisement Regulations, and thus enjoy deemed planning permission by reason of section 222 of the Town and Country Planning Act 1992.

Response

I note your view on whether one-way film has a material effect on the external appearance of a building, but what is the position regarding the need for listed building consent?

Consent is required for any alterations to a listed building which would affect its character. I would have thought that the application of one-way film, internally or externally, would affect the character of a listed building in most circumstances. There is an appeal decision from Glasgow (illustrated at 4.3151) where a reporter felt that the use of tinted glass in an office building required listed building consent, but I do not know of a specific case related to one-way film.

Part 1 of Schedule 3 in the Advertisement Regulations is entitled " Functional Advertisements of Local Authorities, Statutory Undertakers and Public Transport Undertakers".  Class 1B gives deemed consent to  "An advertisement displayed by a local planning authority on land in their area".  Does this permit commercial advertising on such items as bottle banks and litter bins given the statement in Circular 5/92 at paragraph 63?  Here it is stated that "Many local authorities have bottle banks and other recycling schemes in their areas….there may be opportunities for supplementing the revenue by allowing advertising on the sides of the containers. Such advertising would usually be permitted by Class 1B in Schedule 3…".

The description to Class 1A refers to purely functional advertisements by public authorities, while that for Class 1B covers advertising by local planning authorities without reference to functionality. However, the fact that the overall heading of Class 1 refers to only functional advertisements would seem to indicate that the intention of Class 1B is simply to clarify that site and other planning notices enjoy deemed consent. Against this we have the statement in Circular 5/92, and the fact that the term 'local planning authority' could be interpreted as referring to councils generally. On balance my view would be that the advice in Circular 5/92 is not law and the wording of Class 1B does not give deemed permission for "commercial" advertising of the sort that you indicate. Has anyone had experience of this point?

Do floodlights mounted onto the face of a building with the purpose of illuminating the elevation require planning permission on the basis of materially alterating the external appearance of the building? Or do they require advertisement consent on the basis that they serve to draw attention to the building?  If it is the former, can the illumination itself be considered to alter the external appearance of the building or must account only be taken of the source or fitting.

It is possible that external floodlighting apparatus fixed to a building could be held to have a material effect on external appearance, much depending on the extent and visibility of the works. A prerequisite of any test for material effect is that a building operation has been carried out, but cases would suggest that this would be the case if physical works such as nailing or screwing to the fabric of the building have occurred. It has been an interpretation of the court case Royal Borough of Kensington and Chelsea v C.G.Hotels [1980]  that the switching on of lighting when there was no material effect on external appearance when not switched on, did not create a further act of development when illuminated. Of course, if there is material effect on external appearance when lighting is not switched on it would be immaterial to consider the effect of illumination.

As to whether lighting on its own could be construed to be an advertisement  this has been shown to be the case in several instances where illumination has drawn attention to commercial premises and was held to be a "sign".  However, the position is less clear where a building is lit for security purposes and in a 1998 case from Shepway, lights which illuminated the front elevation of a Curry's superstore, were not considered to be an advertisement.

My planning authority recently refused an advert on a shop frontage on the basis that it would lead to a proliferation of such signs in the area. The applicant has appealed arguing that the authority has not considered the application on its merits. Do you have an opinion on whether an authority can base its decision on the proliferation of signs which may result?

PPG19 on advertising control states at para. 11 that the cumulative effect of a proposed advertisement on its surroundings is something that a planning authority should have regard to.  However this advice seems to refer to consideration of existing signs, rather than those that might emerge as the result of precedent. It follows that if your authority are faced with further applications for similar signs in this area, it then has every opportunity review the situation with regard to clutter and so on.  My advice is that any consideration of the advertisement before your council should be confined to its merits on amenity and safety grounds.

Would advertisement consent be needed for a 30 foot inflatable Santa tethered to the ground outside a garden centre which is selling predominantly Christmas decorations and gifts?

The statutory definition of an advertisement could well cover the Santa being a "model…employed wholly or partly for the purpose of advertisement, announcement or direction".  Viewed as a tethered balloon it would not require consent if displayed for 10 days or less, by virtue of Schedule 2 Class A of the Advertisement Regulations if not more than 60 m above the ground and not in an area of outstanding natural beauty, a conservation area or a national park.  Because of its height the Santa would not seem to fall within any of the classes of advertisement given deemed consent by the Regulations.

I am dealing with a complaint about a 52" television monitor  suspended from the canopy of a petrol filling station facing the forecourt. It has a loudspeaker and electronic amplifier with a sensor over each pump so that each speaker is activated when a customer is at the pump. The volume is automatically adjusted to take account of ambient noise. A custom programme of mainly television advertisements is played out to customers. Although directed at these customers the monitor can be seen by pedestrians and passers by on the highway. The company maintains that such installations are excluded from control by reason of Schedule 2 Part B of the Advertisement Regulations. Given that it is arguable whether the display is on enclosed land, surely it is excluded from any class of deemed consent because the display includes moving images?

For planning permission to be required for this installation it would have to be a building operation and this may be involved given the size of the display and the fact that it has been to attached to the canopy. Even so it would not be development if it only affects the interior of a building or does not materially affect its external appearance. Looking at the extent of advertisement control available I am not at all certain that this apparatus comes within the section 336 definition of an advertisement at all. But if I am wrong I do not think that Schedule 2 Class B of the Regulations exempting advertisements displayed on enclosed land was ever intended to apply to filling station forecourts. A further provision in the Regulations which might possibly be relevant is Schedule 2 Class 12 which gives a deemed permission for advertisements inside "a building". This might be construed to be the area covered by a canopy structure. Has any reader experience of these or other legal issues raised by this type of installation?

Response

My council considers that such an installation could be classified as an advertisement to be controlled under Class 6 of the regulations as being an advertisement on the forecourt of business premises not enjoying deemed consent. The pump speakers would be an integral part of the delivery of the advertisements and need to be included in any application. I agree with GH that the permission given by Class B Schedule 2 of the Regulations relating to advertisements on enclosed land does not refer to filling stations. If it did then consent would not be required for many other forms of filling station advertisements which are conventionally controlled. Also the guidance produced for advertisers  by the former DETR makes specific reference to petrol stations at Class 6.

Page 19 of the departmental advice for the public relating to the display of advertisements indicates that forecourt signage permitted by class 6 "must be at ground level". The Control of Advertisements Regulations 1992 themselves indicate that "No part of the advertisement may be more than 4.6 metres above ground level…". This apparent anomaly has created some confusion in a recent dispute and I shall be pleased to receive your advice.

There is nothing in the Regulations to specifically indicate that advertisements permitted by class 6 must be at ground level. However, it could be argued that the heading of the class "An advertisement on a forecourt of business premises" means an advertisement resting on or being supported from the ground of the forecourt. It would seem that what is now class 6 was introduced in 1969 to remedy the fact that the existing deemed consent provisions only referred to advertisements on business premises, the legal definition of which did not include forecourts or aprons. I would therefore tend to the view that class 6 does only refer to ground based advertisements not fixed to "business premises", but permits quite high non-illuminated signs up to 4.6 m, such as the totem type. Has any reader any experience of interpretation on this topic?

Response

I had always assumed that class 6 was meant to refer to boards or signs placed directly on the ground. So I was recently unwilling to accept the claim of a restaurant chain that a sign on a 3m pole standing on the forecourt of premises was allowed by this class.  But on close consideration of the wording, I think the important words are "Any  advertisement displayed on any forecourt…" In the above case the sign was "on " the forecourt in the sense that it was supported by it, and did not exceed the class maximum of 4.6m. I therefore changed my mind and agreed with the developer's interpretation.  This is another bit of law where the actual wording does not seem to match the writer's intentions.

A town council in this district has recently installed litter-bins which have commercial advertisements on all four sides. I take the view that these advertisements require express consent under the Advertisement Regulations as they do not benefit from deemed consent under any of the relevant classes. Is this view correct?

Class 1A of schedule 3 of the Regulations only applies to local authority advertising if it is of a purely functional nature. It has been argued that class 1B, which refers to advertising by local planning authorities without reference to functionality, may give deemed consent. However, as I indicated in a previous Forum answer (Planning 21 September 2001), the overall heading of Class 1 refers to functional advertisements only. This would seem to indicate that the intention of Class 1B is simply to clarify that official planning notices and the like enjoy deemed consent. Against this we have the statement in Circular 5/92 at paragraph 63 which indicates that the class could extend to advertising on the side of bottle banks. My view remains that the advice in Circular 5/92 is not law and the wording of Class 1B does not give deemed permission for commercial advertising on any sort of local authority street furniture.

My authority is trying to respond to resident’s concerns about a proliferation of "To let" signs in an area of Victorian terraced housing close to a University and popular with students and landlords. When properties have been let, the signs frequently stay up for longer than the fourteen days which the regulations allow. However, the problem seems to be establishing exactly when a tenancy has been granted and from when the fourteen day period should run. Our legal advisors say that without clear evidence on these matters a successful prosecution would be unlikely. Are you aware of any case law on these matters or best practice approaches from authorities with similar problems.

Schedule 3 Class 3 of the Advertisement Regulations specifies that  "for sale" or "to let" boards enjoy deemed consent subject to size restrictions and the requirement that they shall be removed 14 days "after the sale has been completed or a tenancy is granted". Directions under Regulation 7 taking away deemed consent rights for estate agent’s boards have been agreed by the Secretary of State  in certain very sensitive conservation areas in central London and Bath as described in PPG19 para 28. I do not know of any particular cases where this question of the "14 day rule" has arisen, and wonder if readers have any input?

Response

I have prosecuted several hundred such offences in London over the past five years with a 100 percent conviction rate. An important authority is R v O’Brien and Hertsmere BC [1997] which found that it is for the defendant to show his display benefits from deemed or express consent, not the prosecution to prove otherwise. Even to the extent that the Human Rights Act may have tempered this reversal of the burden of proof, it is rare to find evidence of less than two breaches of Class 3A or the standard conditions. Numbers and size limitations or display outside the land to let are the most common breaches, and in the latter respect R v Mann and Co (Thames Valley) [1994] is a useful authority. If and when JH does secure his conviction he should refer the court to the Lord Chief Justice’s advice in the Court of Appeal case R v Dockland Estates Ltd [2000], that "fines for this class of offence should be increased".

The Advertisement Regulations specify at Schedule 2 Class 3 that advertisements displayed on or in a vehicle are completely excluded from the planning authority's control. My council is experiencing considerable problems from one particular individual who is taking advantage of the above exclusion by advertising property on a very large trailer body strategically placed on farmland but immediately adjacent to a principal traffic route. Prosecution proceedings have been mounted to which a "not guilty" plea has been lodged.  The operator claims that the adverts are excluded from control. Does anyone have experience of this particular form of advertising and has a successful prosecution been mounted?

There would not appear to be much difficulty in demonstrating that an advertisement of the type you describe falls within control given the conditions that are attached to Class 3. While it may be debated whether such a trailer is or is not normally employed as a moving vehicle, its principal purpose is surely the display of advertising and not the carriage of goods.

You may be interested to refer to the report of an appeal case (Planning 21 June 2002 p16) where a similar type of advertisement was rejected on amenity and traffic grounds without any argument being put about the need for consent.

Response

This Authority has recently successfully prosecuted a company for the unauthorised display of an advertisement trailer in a field in East Devon. I am about to prosecute a window company for a similar offence.

In both instances, the companies concerned were asked to remove the signs from the sites, which was done, but they then decided to try their luck again at another site. In most cases, I write to the advertisement company, the owner of the land and those benefiting from the display. This usually has the desired effect. This Authority has recently successfully prosecuted a company for the unauthorised display of an advertisement trailer in a field in East Devon. I am about to prosecute a window company for a similar offence.

In both instances, the companies concerned were asked to remove the signs from the sites, which was done, but they then decided to try their luck again at another site. In most cases, I write to the advertisement company, the owner of the land and those benefiting from the display. This usually has the desired effect.

Thank you to readers who kindly contacted me regarding my query about a large lorry trailer adapted to form an illegal advertisement on farmland next to a main road. This resulted in a successful prosecution recently in the Magistrates court.

My company often applies for advertisement consent on behalf of a national retailer. Increasingly we are receiving contradictory views from different local authorities with regard to advertisements inside a building, particularly illuminated advertisements within 1m of a shop window.

Our own interpretation is that advertisements falling within Schedule 2 Class J relating to displays inside a building need neither deemed or express consent unless illuminated or within 1m of any external door, window or other opening, through which it is visible from outside the building.

Class 12 of Schedule 3 gives a deemed permission for any advertisement displayed inside a building, which falls outside Class J in Schedule 2. Thus advertisements inside a building but are illuminated or within 1m of an opening do not need express consent.

Your interpretation is quite correct and express consent cannot be required for the display of any advertisement inside a building. This is not to say that a local authority may not serve a discontinuance notice on an advertisement exceeding the Class J limitations. The only point that could remain to be debated is whether a particular display is within or without "a building". While it is clear that material applied to the immediate inside of windows enjoys deemed consent it seems that Class 12 could give consent for outside displays on premises within a covered mall as these would still be technically within "a building".

The question of "To let" boards was the subject of a previous query. However, my problem is not  the 14 day rule but rather advertising boards for future lettings while there are current lettings. In our area there are boards displayed almost all year round.  Does Schedule 3 Class 3 allow an agent to remove a "To Let" board within 14 days and then legitimately re-erect the board for a future tenancy while there are current tenants. Alternatively, although the Class is not explicit in this respect, can it be implied that a board may not be displayed until the end of the tenancy?

I do not have any information to hand which assists in answering this particular point, although it is of interest that earlier this year a south London estate agent was fined for  offences under the Trades Description Act for putting "Sold" and "To Let" boards on properties that were not on the market.  Does any reader have an input to into this matter, including the use of Regulation 7 powers to bring all letting boards within control?

Advertisement appeal decisions often refer to things such as "garish colours" and "brash commercial character. But the Regulations suggest that it is the site only and not the content that should be under consideration. What is your perspective?

Regulation 4(3) states that "Unless it appears to the local planning authority to be required in the interests of amenity or public safety, an express consent for the display of advertisements shall not contain any limitation or restriction relating to the subject matter, content or design of what is to be displayed." Although this Regulation is discretionary, and does not in fact refer to refusals of consent, its intention is clearly to say that advertisement control should not normally extend to the particular lettering or stylistic devices which are used. However, there is no doubt that some "corporate" and other advertising can create a particular problem as its impact is magnified through the use of aggressive logos, colouring and illumination. PPG19 recognizes this and advises that such designs should be moderated in sensitive areas, while stating that corporate advertising should not be refused elsewhere simply because a local authority dislike the design.

Clearly local authorities cannot be faulted if they confine their amenity consideration to the basic features of an advertisement such as its location, size and illumination in relation to the Regulation 4(1) "general characteristics of the locality". But they also are entitled to consider the particular stridency or garishness of a design when it contributes to visual impact, while trying to ensure that this assessment is not coloured by the nature of the company or product being advertised.

The Advertisement regulations stipulate that a national flag of any country can be displayed on a single vertical flagstaff with deemed consent, but there is no mention of any height limit for the flagstaff. Can it be inferred that there is no height restriction or that the flag pole must first have planning permission before a flag may be flown?

By way of clarification, rather than granting deemed consent for the display of a national flag on a single vertical flagstaff, subject to certain limitations Class I Schedule 2 of the Control of Advertisement Regulations 1992 excludes this from the regulations that either grant deemed consent or require an application for express consent. In other words, it falls outside the advertisement control system.

Class 7 of Schedule 3 Part 1 of the Regulations deals with all other flag advertisements, which subject to certain conditions and limitations, may be displayed with deemed consent. It is relevant to note that whereas there is no height restriction for a flagstaff displaying a national flag, changes made to the regulations in 1994 specify that, in order to qualify for deemed consent, flagstaffs flying other flags must not exceed 4.6m above ground level. I assume that these differences were intentional and not an oversight. It is therefore reasonable to infer that a national flag may be flown from a flagpole of unlimited height, with neither requiring any consent from the planning authority, and this view is supported by a recent appeal case determined by the Inspectorate’s Advertisement Control Division (Solihull MBC 3/03/2000).

Response

Further to your reply concerning the display of national flags would regional (e.g. Yorkshire) or supranational (e.g. EU) flags fall within at least the spirit of "national" flags for the purpose of the Advertisement Regulations?

I am not aware that what constitutes a national flag for the purposes of the regulations has ever been defined in any statute or case law. In the Solihull appeal decision mentioned in my reply, both parties had agreed that an EU flag fell within Class 1 of Schedule 2, and this was not disputed by the Inspector. However, until such time as Yorkshire becomes an independent country, I am fairly sure that the flying of its flag should not be similarly excluded from the regulations, and that such regional flags fall to be considered under Class 7 of Schedule 3.

An original wooden shop fascia board has been replaced recently by a larger aluminium one in a very bright corporate colour. My department feels that this is a material alteration to the shopfront and therefore development requiring planning permission. However, legal advice indicates that provided the advertisements on the fascia enjoy deemed consent the fascia board itself automatically receives planning permission. Is this correct and, if so, is there any other way to get this harmful fascia removed?

The effect of Sec 222 of the 1990 Town and Country Planning Act is that, where advertisements involve development under sec 55 that would normally require permission in addition to or instead of consent under the Town and Country Planning (Control of Advertisements) Regulations 1992, if they are displayed in accordance with the regulations then planning permission is also deemed to be granted. Such development would include a fascia sign erected above a shop, which subject to certain conditions and limitations is granted deemed consent under regulation 6, Schedule 3, Part 1. Therefore, the legal advice that your department has received is correct, in my view.

If your authority is satisfied that it is necessary to do so to remedy what is described under regulation 8 as "a substantial injury to the amenity of the locality or a danger to members of the public", it may serve a Discontinuance Notice to require the removal of the objectionable fascia.

Further to the queries concerning national flags, since 1989 my client has flown the Swiss national flag on a flag pole that projects at an angle from the front of his listed Swiss restaurant building. Although planning permission is not needed, at the request of the authority my client sought listed building consent for the flag pole and advertisement regulations consent for the flag, but these were refused and have been appealed. However, bearing in mind that it involves a listed building and an advertisement, would it also be possible to apply for a Certificate of Lawfulness for the flag and pole and would this be negated if the appeals fail?

Sec 38 of the Listed Buildings Act 1990 sets no limit on the period for issuing a listed building enforcement notice. Thus the concept of lawfulness and the associated time limits following which unauthorised development becomes immune from planning enforcement action does not apply to breaches of listed building consent.

However, where an advertisement is held to be development but is not displayed in accordance with the Regulations, it will not enjoy deemed planning permission and will therefore result in a breach of planning control. Thus it is possible to seek a certificate of lawfulness for its display, with the relevant time periods depending on whether the development that has taken place amounts to a building operation or a material change of use, as evidenced in the recent case from south-west London (Planning 5 March, p20). But in the circumstances you describe, a certificate of lawfulness would clearly be of no benefit.

My authority has recently received applications for advertisement regulations consent and planning permission to apply vinyl graphics at the back of eight shop windows on a high street retail unit. The graphics contain no lettering but are large photographs of the faces of a fashion model. Each is about 5m long by about 2.5m high and would be clearly visible from outside. As they would be within 1m of an external window, I believe that these graphics fall outside Class J of Schedule 2 of the Town and Country Planning (Control of Advertisements) Regulations 1992 and, since they materially affect the external appearance of the building, constitute development under the 1990 Planning Act. Although I have never come across a situation like this before, I wish to control such displays as they could result in a dead shop frontage in the town. Is my approach correct and are you aware of any similar case, precedent or appeal decision?

A similar issue has been discussed previously in Forum. Although the graphics breach the 1m limitation to Class J, they are granted deemed consent by Class 12 of Schedule 3 of the advertisement regulations. Together, the effect of Schedules 2 and 3 is that express consent is not required for the display of any advertisement inside a building. However, where such an advertisement exceeds the limitations under Class J, the planning authority may serve a discontinuance notice to secure its removal. In addition, it is arguable whether planning permission is needed in this case. The question of whether the graphics are development by virtue of having a material effect on external appearance of the building must be preceded by a conclusion as to whether there is operational development at all. But while it could be thought that they are alterations "only affecting the interior of the building", and therefore not development by reason of section 55(2)(a) of the 1990 Act, inspectors have previously held that tinted glass and alterations to the inside plane of windows were capable of requiring express permission.

Opinion is divided at my authority on whether a replacement sign above an existing shop front would require planning permission. Under the advertisement regulations the proposed sign has deemed consent. However, the need for permission seems to turn to whether the black box to which the lettering would be attached would "materially affect the external appearance of the building". As the new sign would be 1m longer than the existing fascia sign and extend across the whole shop front that seems to be the case here and therefore permission is required. However Sec 222 of the Town and Country Planning Act 1990 provides that no permission is required for the display of advertisements in accordance with regulations made under the act. Is that correct?

By virtue of section 57(1) of the 1990 Act, planning permission is required for the display of an advertisement where it amounts to development. However, where such an advertisement would be displayed in accordance with the advertisement regulations, permission is deemed to be granted under sections 58(3) and 222 of the act. If your authority considers that the display of the sign would result in a substantial injury to the amenity of the locality or a danger to members of the public, it should serve a discontinuance notice to require its removal.

I am slightly confused by differing references to the Town and Country Planning (Control of Advertisements) Regulations 1992 in various sources, specifically Class 7B of Schedule 3 which deals with flag-staffs at building sites. Although the Encyclopaedia of Planning Law refers to some amendment regulations issued in 1994, I am sure I must be missing something here. Could you please clarify?

The 1994 amendment regulations extended Class 7 so as to grant deemed consent for flag advertisements on certain sites on which houses have been or are being constructed, except in a National Park, Area of Outstanding Natural Beauty, Conservation Area, the Broads or Area of Special Control of Advertisements. The ODPM publication Outdoor advertisements and signs: a guide for advertisers summarises the rules:

•    each flag must be on a single vertical flagstaff

•    a site where 10 houses or fewer are built may have one flag, 11 to 100 houses may have two flags, and over 100 houses may have three flags

•    the flagstaffs must not exceed 4.6 metres high

•    the flags must not exceed 2 square metres in area

•    the flags and flagstaffs must be removed at the end of one year after construction of the last house is completed.

There are special arrangements for sites being developed in phases or by more than one housebuilder.

I sometimes see advertisements such as banners with "Temporary Advertisement" written in small letters underneath. I can find no legal justification for this in the Town and Country Planning (Control of Advertisement) Regulations 1992. Whilst there are categories of temporary advertisements relating to "for sale" and "to let" boards, signs advertising charitable events and so forth, there is no requirement for these to be marked as being temporary. Can you suggest any reason for such markings?

Class 3, Schedule 3 of the advertisement regulations grants deemed consent for the display of a variety of miscellaneous temporary advertisements subject to certain conditions and limitations relating to their size, number and duration. As you point out, these do not include any requirement to identify signs permitted under this class as being of a temporary nature. However, in many instances, particularly in the case of prominent and large banner signs or hoardings enclosing a building site, there does seem merit in making it clear to passers-by that the signs are not permanent.

My client wishes to display vinyl banners around a stand at a rugby ground to advertise a local business. It is my understanding that advertising in an enclosed area of land such as a sports stadium enjoys deemed consent under the advertisement regulations. However, although the land is enclosed and privately owned, the planning authority considers that as the banners may be visible from the stadium its consent is required. This clearly comes down to the interpretation of what is considered under the regulations to be "readily visible". Has this been clarified anywhere?

Rather than granting deemed consent, Class B, Schedule 2 of the Town and Country Planning (Control of Advertisement) Regulations 1992 exempts an advertisement displayed on enclosed land from control provided that it "is not readily visible from outside the enclosed land or from any place to which the public have a right of access". While "enclosed land" is defined under limitation 2 as including rail and bus stations, the ODPM publication Outdoor Advertisements and Signs: A Guide for Advertisers advises that sports stadiums are also included. The expression "readily visible" is not explained in the regulations or the accompanying Circular 5/92, so must be a matter of common sense. In a case from Berkshire last year (DCS No: 36112645), an inspector held that a poster panel on a platform at a railway station was not exempt under Class B because it was visible from a road to which the public had a right of access. In a case from Nottinghamshire in 2003 concerning a poster panel in the car park of a Little Chef restaurant next to a large petrol filling station (DCS No: 54901141), the appellants argued that the appeal site was on enclosed land and therefore did not require consent. Noting that the site did not involve any of the examples cited under limitation 2 to Class B, the inspector decided that the test was simply whether it was visible as set out in the first limitation. After finding that the panel was clearly visible from an adjoining field, the whole of the service centre and the car park, which formed part of the public highway, he held that the premises did not comprise enclosed land.

An unlawful banner was refused advertisement consent on appeal because its garish design had created a distracting backdrop that harmed the setting of a listed building. Does this decision rule out the display of any banner in this position on the building or is it open to the applicant to seek consent for a different design that would not be garish?

It is difficult to comment on this without sight of the decision. The inspector was bound to consider only the merits of the advert as displayed and not whether a banner of less garish design would be acceptable. In rejecting the banner, it is possible that the inspector was concerned with both the principle of such a display on a listed building and its actual design. You should discuss this with the planning authority to establish whether there would be any scope for a revised proposal.

I have been asked to take enforcement action against a number of student accommodation letting signs. These are displayed under Class 3A, Part 1, Schedule 3 of the Town and Country Planning (Control of Advertisements) Regulations 1992, which requires them to be removed within 14 days of a contract being signed. However, the regulations do not stipulate when the signs can be first displayed. While some advance advertising is reasonable, many signs are displayed months before the start of the new academic year on properties that are currently occupied. I am aware that other authorities suffer this problem and that Leeds has made its student area an area of special control, resulting in all signs under Class 3A requiring express consent. What is your advice?

Class 3A requires "for sale" or "to let" boards enjoying deemed consent to be removed within 14 days "after the sale is completed or a tenancy is granted". While the regulations do not specify when such signs may be erected, it can be inferred that they may be displayed for as long as the property remains unsold or unlet. It seems unreasonable and impractical to distinguish between the circumstances that apply where a house is offered for sale but continues to be occupied and one that is advertised as being available to let, despite there still being time to run on an existing tenancy. You should exercise discretion and consider enforcement action only where such displays are conspicuously excessive or this is justified by the quality of the surrounding area. The alternative is to follow Leeds’s example. However, paragraph 28 of PPG19 warns that while directions made under regulation 7 have been used to prevent the display of estate agents' boards with deemed consent in certain conservation areas, the use of this power has been extremely limited.

Class 4B, Part 1, Schedule 3 of the Town and Country Planning (Control of Advertisements) Regulations 1992 appears to grant deemed consent for the display of an illuminated projecting sign on a shop subject to certain conditions if the site is outside an area of special control. However, while Class 5 of this Schedule refers to non-illuminated signs, it makes no reference to projecting signs. This seems odd. Would a non-illuminated projecting sign require express consent?.

Pursuant to regulation 6, Class 4B grants deemed consent for illuminated advertisements on business premises, including shops, subject to various conditions and limitations. These include restrictions on the extent of any projection. Class 5 gives consent for a variety of other notices, signs and adverts on such premises, but again with certain limitations. These include a requirement that the sign must not be illuminated unless the illumination is intended to indicate that medical or similar services or supplies are available at the premises. While there is no reference to projecting signs, advertisements displayed in accordance with this class must meet specified criteria on height, size and external shop walls containing a window. If a projecting sign meets the relevant criteria, it may be displayed without the need for express consent. Government advice on the advertisement control regime is set out in Circular 5/92, PPG19 and Advertisements and Signs: A Guide for Advertisers, published in 1992.

A school in my borough held a summer fête recently, organised by the parents' association. A local estate agent paid the association to advertise the event on its boards, which were displayed in roads surrounding the school and removed after the fête had taken place. Can the estate agent or school rely on Class 3(D), Schedule 3 of the Town and Country Planning (Control of Advertisements) Regulations 1992 for deemed consent for such advertising?

Class 3 grants deemed consent for the temporary display of advertisements announcing certain non-commercial events subject to limits on their size and duration. The signs may not be put up more than 28 days before the first day of the event and must be removed within 14 days after it has ended. In my view, this class would allow the type of advertising you describe.

Response

These signs have caused visual harm in some areas. Those sponsored by estate agents and others normally use more space on the board to promote the sponsor than to advertise the event itself. A judgement must be made on whether the advert is for a non-commercial event and therefore lawful or primarily aimed at advertising the sponsor's business. This would constitute a commercial advertisement and would therefore be unlawful. I suggest that any sign where details of the sponsor cover more than ten per cent of its surface area would not benefit from the consent granted under Class 3 and would thus be unauthorised. But it is for individual planning authorities to decide the ratio that should be applied. Local estate agents and others should then be advised of the criteria so that this type of sponsorship can continue lawfully without the need for legal action. They should also be reminded that the size and time limits prescribed in Class 3 must be adhered to.

Class J, Schedule 2 of the Town and Country Planning (Control of Advertisements) Regulations 1992 provides that the regulations do not apply to "an advertisement displayed inside a building" subject to certain conditions, such as preventing the advertisement from being illuminated or sited within 1m of a window or door. However, the control that Class J gives seems to be taken away by Class 12, Schedule 3, which allows the display of an advertisement inside a building that does not fall within Class J. This suggests that there is no control. Do you agree?

The combined effect of Classes J and 12 is that express consent is not required for the display of any advertisement inside a building. However, an authority is able to serve a discontinuance notice where an advertisement fails to comply with the limitations under Class J.

My authority has received an enquiry from an estate agent who wishes to use the frontage of a storage building attached to a village shop to display property details. There would be no actual estate agency use on the premises and any interested parties would be directed to the agent's office some miles away. Would this result in a material change of use or should the proposal be considered under the advertisement regulations?

If the building is used as a store that is ancillary to the shop, it is unlikely that using its frontage to display property particulars would constitute a material change of use. If the display is behind an existing window, it would be allowed under Class J, Schedule 2 and Class 12, Schedule 3 of the Town and Country Planning (Control of Advertisements) Regulations 1992. However, if the particulars are displayed within 1m of the window or illuminated, the authority may serve a discontinuance notice. If the particulars are to be mounted inside in a new window cabinet fixed to the building, this would fall within the definition of an advertisement given at Sec. 220 of the Town and Country Planning Act 1990. It should be assessed as though it were a poster panel.

With respect to the Town and Country Planning (Control of Advertisements) Regulations 1992, could you please advise whether advertising material that is attached to fascia signs at retail premises, other than lettering, requires advertisement consent? For example, is consent required by a shop that sells telephones to attach protruding mock telephones to the fascia sign? MS.

The Town and Country Planning Act 1990 at section 336 states that an advertisement can include any model or device employed wholly or partly for the purposes of an advertisement. There can be very little doubt that the sort of additional display you describe is an advertisement for the purpose of the Regulations, just as much as any conventional lettered projecting box sign would be. It then remains to apply the criteria in Schedule 3 Classes 4 or 5 in order to establish whether the item/s in question can be displayed with deemed consent. If not, express consent will be required. GH

An estate agent in our area has recently started to use reflective material on his boards, but a fellow agent had complained that this amounts to an illuminated sign. The Town and Country Planning (Control of Advertisements) Regulations 2007 make no reference to reflective material except in the special case of Class 11 directional signs, and I assume there is no breach. AG.

I imagine that it is being argued that these boards may appear to be ‘illuminated’ when subject to external light sources such as street lamps or vehicle headlights. As these sources do not form an integral part of the advertisement I cannot see that this brings them within control. GH.

Response

The Town and Country Planning (Control of Advertisements) Regulations 2007 state that "illuminated advertisement means an advertisement which is designed or adapted to be illuminated by artificial lighting, directly or by reflection, and which is so illuminated (whether continuously or from time to time)." In my opinion the wording "by reflection" and "from time to time" would bring such boards in breach of the Regulations. LC.

Further Response

I am still of the opinion that an advertisement cannot be said to be illuminated if that illumination relies on a purely fortuitous external lighting source. Do any other readers have a view on the question? GH. 

Further Response

I must say I am firmly with GH on this. To say that any estate agency sign is legible is to say that its reflectivity has been designed to generate a particular visual effect. This applies to matt, lustre and glossy surfaces as much as so-called reflective surfaces. As all signs reflect light, they would thus all be illuminated from time to time by street lighting or car headlights. The term ‘by reflection’ in the Regulations has to be understood in connection with ‘directly’. Both refer to the light source not to the quality of the surface of the sign. As all signs are reflective, and thus visible purely by reflection, the distinction made by the Regulations must lie elsewhere than in the surface of the sign. GW.

Does a property displaying two estate agent’s boards sandwiched together, one advertising the property for sale by one agent, and the other advertising the property to let from another agent, benefit from deemed consent for both adverts because the total area is the same as which would be used by one single board where both sides are visible? GL.

The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 state that an advertisement related to sale or letting enjoys deemed permission provided that not more than one such advertisement consisting of a single board or two joined boards is displayed. Amongst other restrictions the size of a single residential board size is limited to 0.5 square metres, or in the case of a joined board 0.6 square metres. In the interpretative section of the Regulations a joined board is stated to be boards joined at an angle so that only one surface of each is usable. It is also stated that in the case of a double sided board, the area of one side only shall be taken into account where a maximum area is specified. The courts have ruled that the Regulations refer to one board per sale or letting, not one board per agent Porter v Honey [1988]. A reasonable interpretation of all this seems to indicate that  the type of  back-to-back board to which you refer could be treated as one board and enjoy deemed permission  subject to the 0.5m rule (i.e. about 2’ 3" square overall), despite the fact that different agencies are represented on each face. Does any reader think  differently?. GH.

Could you clarify the situation with regard to the level of controls on advertisements in conservation areas? I am of the opinion that as they are designated as Article 1(5) land, they automatically benefit from being classed as an area of special control for advertisements. What is your view? LD

The Town and Country Planning Act 1990 section 221 refers to powers to make different advertisement regulations for different areas. One of these is conservation areas, defined as Article 1(5) land in the General Permitted Development Order and another is areas of special control. However, there is nothing that I can find in the Control of Advertisements Regulations 2007 to suggest conservation areas should be regarded as areas of special control. Clarification comes in Planning Policy Guidance 19 section 22, which states that the designation of a locality as a conservation area does not necessarily justify its also being defined as an area of Special Control of Advertisements. It goes on to say that Local Planning Authorities should use advertisement controls flexibly in such areas, bearing in mind that many conservation areas are thriving commercial centres where advertisements are to be expected. There are, however, some additional levels of control for conservation areas within the Advertisement Regulations, for example illuminated advertisements on business premises, flag advertisements and hoardings. GE

Article 5 of part 1 of schedule 1 of the (Control of Advertisements) (England) Regulations 2007 allows fascia adverts subject to certain restrictions one of which is, "Illumination is not permitted". Does this mean that a box sign designed as an internally illuminated sign and containing tubes which has not been switched on can be displayed, and can it be displayed if the tubes have been removed? PL.

Regulation 2 of the Control of Advertisements Regulations 2007 defines illuminated advertisement as "an advertisement which is designed or adapted to be illuminated by artificial lighting, directly or by reflection, and which is so illuminated (whether continuously or from time to time)". Thus, if a sign has not been illuminated, as applies in both your scenarios, the regulations have not been breached. In the circumstances you set out, it would be possible to serve a discontinuance notice under regulation 8 if a sign was detrimental to public safety or substantially detrimental to amenity, but clearly you would need sufficient evidence to counter a possible appeal against such a notice. JH.

At the beginning of May the media had a field day at the expense of the development control system when was reported that a local planning authority in Surrey had objected to a householder flying a skull and crossbones flag related to his daughter’s pirate themed birthday party. Apparently this authority had threatened prosecution if the 5ft and 3ft flag was not removed. The council were presumably relying on a breach of the Control of Advertisements Regulations 2007 but I had always taken the commonsense view that flags could not be advertisements if they did not advertise anything. Can you elucidate? AB.

I have looked up the many press reports of this matter and it would seem that, following a neighbour objection, the local authority concerned wrote advising that the retention of the flag was in contravention of the Regulations which could lead to prosecution. The householder has now formally applied for consent in order to make a point.

The legal starting point is the broad definition at section 336 of the Town and Country Planning Act 1990  which  states that an advertisement is "any word, letter, model, 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 an advertisement , announcement or direction…". Thus  although the offending flag was not a conventional advertisement referring to available goods or services, it fell within the ambit of an ‘announcement or direction’ that a pirate themed party was to take place at the premises upon which it was located. The Regulations themselves acknowledge that a flag could fall within this definition of an advertisement as they state that the display of a) Any country’s national flag; (b) The flag of the Commonwealth, the European Union or the United Nations; (c) The flag of any English county; (d) The flag of any saint, are classes of ‘advertisement’ not requiring deemed or express consent.

To be fair the local authority did not write to the householder concerned until the flag had remained displayed for as long as seven weeks after the party to which it related. However, in view of the likelihood that the press would take up an incident of this type with some relish, a ‘softly softly’ approach by the council would perhaps have been more advisable.GH.

What illuminated advertisements can be displayed within an area of special advertisement control (ASCA) under the Control of Advertisements Regulations 2007? For instance, do the regulations prevent illuminated advertisements on public houses?  JM.

The provisions are complicated, but as far as I can tell the following illuminated signs can be displayed in an ASCA:

•    Advertisements in schedule 1, i.e. those which neither require express consent or deemed consent.

•    Advertisements in schedule 3, the "specified classes" which can be displayed with deemed consent, except any illuminated signs in class 4, illuminated adverts on business premises and class 8, adverts on construction site hoardings must have express consent before they can be displayed.

•    Advertisements required in the interests of public safety which have express consent.

•    Advertisements which would be in the specified classes but for a  condition or limitation imposed by regulation 6(1)(b) as respects size, height from the ground, number or illumination

•    Advertisements displayed under the "transitional provisions for new ASCAs.

An advertisement on a public house could either be in class 2c of the specified classes or class 5. An illuminated sign which otherwise conformed with the requirements of one of these classes could be displayed in an ASCA provided express consent was obtained for it. JH.

When an application is made for advertisement consent, is it for the use of the site for advertising or for a particular advertisement, i.e. if the wording, etc of an advertisement is changed in what circumstances is a new consent required? PL.

Under regulation 14(4) of the Control of Advertisement Regulations, an express consent may be for the display of a particular advertisement or advertisements or the use of a particular site for the display of advertisements. When an advertisement consent is granted, deciding which of these two situations applied would presumably be a matter of interpretation from the terms of the application and decision notice, though from my experience of advertisement consents in many cases discerning this may not be straightforward. Where the application is for hoardings where the posters would be changed regularly, one would assume the second situation applied. JH.

Class 4B, part 1, schedule 3 of the Control of Advertisement Regulations 2007 allows illuminated advertisements on shopfronts up to 1/6th of the frontage outside a designated area. However, provisions for non-illuminated signs on a shopfront under Class 5 limit an advertisement to 1.55 square metres maximum area. Thus an illuminated sign can enjoy deemed consent but would require express consent if non-illuminated. Is this correct? If so, this surely cannot be the government’s intention? SW.

Your interpretation is correct, though I would point out that more than one non-illuminated sign of 1.55 square metres could be displayed under class 5, but only one illuminated sign can be displayed under class 4B. Nevertheless, it would seem sensible if these provisions were reviewed. JH. 

Section 222 of the Town and Country Planning Act 1990 states that where an advertisement is displayed in accordance with the Control of Advertisement Regulations 2007 and amounts to development, planning permission is deemed granted. However, what is the position on advertisements which do not fall within the regulations and therefore require express consent, will they also require planning permission too if development? SA.

Section 222 grants deemed planning permission for advertisements which have deemed or express consent under the regulations. If an advertisement comprises operational development and is unauthorised, it is not only an offence under the regulations, but also in breach of planning control. Thus, the council could serve an enforcement notice as well as or in addition to prosecuting for breach of the regulations. Conversely, if retrospective advertisement consent is granted for an unauthorised advertisement, under s222 it automatically gets deemed planning permission. – JH.

Response to last 2 comments

The reply to SW overlooks the Control of Advertisements (England) (Amendment) Regulations 2007. The 2007 Regulations were wrong and were corrected by this Amendment. Class 5 is now restricted in size to 1.55 square metres only where the advertisement comprises "a single placard or poster", so most non-illuminated advertisements on business premises may be displayed with deemed consent under Class 5 except for "placards and posters" effectively larger than a 4-sheet.

Your reply to SA is technically correct, but attention should be drawn to paragraph 6 of the annex to circular 03/2007:

"Because specific powers are available to local planning authorities to control all types of advertisements, within the statutory definition, the Secretary of State considers that local planning authorities should not normally seek to control the display of advertisements by other means, such as by issuing an enforcement notice." CT.

The response to SA’s query has drawn a further response:

Enforcement is difficult enough without advising anyone to apply for retrospective advertisement consent. An acceptable approach would be considering prosecution for displaying the advert and enforcing against the operational development. By all means encourage an application if appropriate, but get the advert removed or covered whilst it is determined. A retrospective advertisement consent is comparable to a 'get out of jail free card’, sends a poor message from an authority on the tolerance of illegal adverts and may prejudice future criminal proceedings. AS.

Whilst noting AS’s comments, I consider that, if an advertisement does not harm amenity or public safety, prosecution would not normally be in the public interest and inviting a retrospective application is appropriate. JH.

Further response

The Control of Advertisement Regulations have no provisions for consent to be granted retrospectively; it runs from the date granted and an unauthorised advertisement remains unauthorised - and its display is therefore a criminal offence - until that time. Unless an authority cannot assess whether an advertisement is authorised, the enforcement notice route, unless supported by a stop notice, merely plays into the advertiser's hands, enabling the income derived from the site to accrue pending determination of the inevitable appeal. Where professional advertisers are concerned, the best remedy is immediate prosecution; to resist defence attempts to secure adjournments and to pursue any continuing offence without delay. MS.

I was perhaps lax in my phraseology and should have used a term such as "a consent granted for an advert already in situ" rather than "retrospective consent". As MS points out, such a consent does not grant authority for the display prior to the approval date. JH.

Condition 3A (3) of class 3 of part 1 of schedule 3 of the Control of Advertisements Regulations 2007 indicates "to let" boards should be removed within 14 days of granting a tenancy. In my area there are currently occupied houses with "to let" boards with a small sign underneath them saying "Available in July 2009".  Does this allow such boards to remain with deemed consent? TW.

Condition 3A (3) requires the removal of boards within 14 days of the grant of a tenancy. If they are not removed, the boards would then be unlawful. It would, however, seem possible to replace the board as soon as removed with one advertising the "forthcoming" tenancy. It appears this is a provision of the Advertisement Regulations that could usefully be reviewed, so "to let" boards could only be erected within a specified period of the end of a previous tenancy. JH.

We have a proposal to locate a chemist’s shop in a doctors group surgery. Would this constitute a material change of use requiring planning permission and what rights would the shop have to display advertisements? GC

It is becoming common for chemists to be located within doctors group surgeries and this does raise interesting planning questions. Almost invariably this would constitute a material change of use as the shop would be an independent business not connected with the surgery with a separate tenancy and as it would serve not just serve patients visiting the surgery.

Regarding your query about rights to display advertisements, if the shop has a conventional shop window, illuminated advertisements within class 4B and other advertisements on business premises within class 5 of schedule 3 of the Control of Advertisement Regulations 2007 may be displayed with deemed consent. Whether the shop has a shop window or not, other categories likely to be relevant are class 2B signs identifying the business and class 6 advertisements on forecourts. A sign advertising medical supplies are available in all these classes except class 6 can be illuminated. JH.

A client wants to place a marble plate giving the name of the caravan park within a new wall at the entrance of his caravan park.  Permission has been given for the wall but the council asked my client to submit a separate advertisement application for the sign.  Having checked the Control of Advertisement Regulations 2007 (Advertisement Regulations), the sign does not qualify for deemed consent by virtue of size and illumination.  However, the site licence requires "a notice indicating the name of the site shall be prominently displayed at the site entrance".  Under part 5, class B of schedule 2 of the General Permitted Development Order, works required by the conditions of a site licence are permitted development and I wonder therefore if this overrides the Advertisement Regulations?  SD.

The display of advertisements which require advertisement consent is covered by the Advertisement Regulations and this is a separate legislative code from the Town and Country Planning Act and associated provisions which covers development requiring planning permission. Thus, part 5 class B of the General Permitted Development Order cannot permit this advertisement.

The sign might in theory be permitted by class F of schedule 1 of the Advertisement Regulations which allows the display of advertisements required by law. From your question it seems to be too large for class 2A of schedule 3, however, the provision under which a caravan site entrance name sign could normally be displayed with deemed consent. As class F has the limitation that signs that do not meet schedule 3 size limitations are not permitted by this class, the council is correct in requesting an application.

We are being overwhelmed with ‘vote for me’ advertisements.  Although election advertisements do not need consent under the Control of Advertisements Regulations 2007, there is still a need for the owner to give permission for their display under the standard conditions. Can election advertisements therefore be displayed on lampposts and street furniture without a formal resolution of the relevant highway authority?  What actions can authorities take against such advertisements displayed without the owner’s permission?  DB.

Displaying advertisements without the landowner’s permission is, because of requirement under the standard conditions, a breach of the Advertisement Regulations so the advertiser can be prosecuted under regulation 30. Also, where advertisements have been displayed on the highway without consent, some authorities have prosecuted under highway legislation as well as the Advertisement Regulations. Having said that, election advertising is normally only short term and, unless a display is particularly large or a public danger, in my experience most authorities take no action if it is removed fairly soon after the vote. JH.

A captive balloon advertisement has been flown at a height over 60 metres for more than 10 days. The site owner claims that the balloon does not require express advertisement consent because he has the consent of the Civil Aviation Authority and this has been verified. Your view on whether the balloon requires express advertisement consent would be welcome. SD. 

Schedule 3 of the Control of Advertisement Regulations 2007 grants deemed consent for captive balloons flown at a height up to 60 metres for 10 days per year. If the height exceeds 60 metres or the period of display exceeds 10 days, then express consent is required in addition to permission from the Civil Aviation Authority under the Civil Aviation (Aerial Advertising) (Captive Balloons) Regulations 1984. The situation is akin to needing both planning permission and building regulations consent. JH.

A shop has changed hands and the new owners want to replace the panel on the existing illuminated fascia sign which has advertisement consent. Is a further consent required? JE.

Regulation 14 of the Control of Advertisement Regulations 2007 provides an express consent may be granted for the display of a particular advertisement or for the use of a particular site for the display of advertisements. In my experience, in drafting advertisement decisions planning authorities do not normally address which of these two forms applies, but in theory you should look at the original consent to address this issue. Circular 03/07 advises, however, "A consent applies to the land or building and is unaffected by a change of ownership. A change of occupancy of premises may sometimes result in the need for a minor change to an advertisement which has previously received the local planning authority’s express consent. The Secretary of State considers that it would be reasonable for local planning authorities to allow minor changes (e.g. where the name of the occupier changes, but the size and type of display otherwise remain substantially unaltered), without requiring another advertisement application."  Under the provisions of regulation 3 of the Advertisement Regulations, advertisement control powers should be exercised in the interests of amenity and public safety. Replacing one advertisement with a similar one is most unlikely to raise amenity or safety issues. To conclude it would seem that whilst arguably replacing a panel on an advertisement might require consent, in practice doing so is unlikely to be of concern to a planning authority. JH.

We have received an advertisement application, but the applicant does not know who owns the land and it is not registered. The applicant cannot therefore comply with standard condition 1 in the Control of Advertisement Regulations 2007 which states adverts must be displayed with the landowner’s permission. Would we be right in treating the application as being invalid? PT

I would draw a parallel with the situation where someone seeks planning permission to develop someone else’s land. Whilst there is no problem in the council granting such a permission, the applicant would normally only be able to implement it if he got the landowner’s agreement or bought the site. With this advertisement application your authority should determine it and grant it, assuming of course the proposal is acceptable. The applicant would, however, not be able to implement the consent until such time as they could identify the owner and get their consent and therefore be able to comply with standard condition 1. There is an interesting difference between a planning permission and an advertisement consent granted on someone else’s land. If someone implements a planning permission without obtaining the owner’s permission, only the owner can take action. Because of the requirements of standard condition 1, however the planning authority can take action against someone displaying an advert without the owner’s permission. JH.

National flags are listed in schedule 1 of the Control of Advertisement Regulations 2007 as neither requiring deemed or express consent. Are there any restrictions on the form or height of the flagpole? SK.

The only restriction in the Advertisement Regulations is that it should not display any additional advertisement or other subject matter. There is no height restriction. This is borne out by an advert appeal decision in the Midlands (040-829-681). Though there is no restriction on the height of poles for national flags, the maximum height for poles for flags on housing sites given deemed consent under the provisions of class 7B of schedule 3 of the Control of Advertisements Regulations 2007 is 4.6 metres. JH.

Are planning authorities able to attach section 106 agreements or undertakings to planning permissions granted under the General Regulations 1992 where they intend to sell the site? Our council has submitted an outline application for housing of a scale where we would normally seek developer contributions for public open space, sustainable transport and community facilities and we intend to sell off the land to a developer with outline permission. What would be the best mechanism to secure these planning obligations? VA.

This point was explained very well by MA in this column on 10 October. Because of the legal status of a council, it comprises a statutory body; it cannot make an agreement with itself. In the scenario you describe, it would be necessary to include suitable clauses in the sale agreement to enable the council to obtain such contributions. JH.

What is the position with an advertisement which meets the criteria for deemed consent but is displayed without the landowner’s consent, so does not comply with the standard conditions in the Control of Advertisement Regulations 2007? Can the advertiser apply for express consent? ML. 

Regulation 6 of the Control of Advertisement Regulations 2007 states advertisements with deemed consent must comply with the standard conditions so must be displayed with the landowner’s permission. According to regulation 14, if authorities are granting express consent that must be subject to the standard conditions. Thus, all advertisements to be legal must have the landowner’s permission. Any advertisement displayed without it is in breach of the Regulations and is liable to prosecution. JH.


Have you registered with us yet?

Register now to enjoy more articles and free email bulletins

Sign up now
Already registered?
Sign in

Have your say...

Before commenting please read our rules for commenting on articles.

If you see a comment you find offensive, you can flag it as inappropriate. In the top right-hand corner of an individual comment, you will see 'flag as inappropriate'. Clicking this prompts us to review the comment. For further information see our rules for commenting on articles.

comments powered by Disqus

Join the conversation with PlanningResource on social media

Follow Us:
Planning Jobs

Forthcoming Events

Congress XII: A New Culture of Urbanism

  • Thu 14 Sep 2017 - Sun 17 Sep 2017
  • Aarhus, Denmark

London Infrastructure Structure 2017

  • Thu 14 Sep 2017
  • QEII Centre, Westminster London SW1P

Planning for Housing

  • Wed 4 Oct 2017
  • ILEC Conference Centre, London