Statutory framework for advertisement control
22. There are a number of pieces of legislation that set out the powers that are available to local authorities to control fly-posting and their responsibilities. However, the greatest difficulty faced by local authorities is the identification of individuals in the companies who are the direct beneficiaries of illegal advertising. Where someone is caught in the act of fly-posting, or there is direct and clear evidence of an individual organising or authorising fly-posting, prosecution may be an option. It should be recognised however, that prosecution is a lengthy and potentially expensive process and may not be appropriate in all cases.
Acts and regulations controlling the display of advertisements
23. The Town and Country Planning (Scotland) Act 1997 (s182) and the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984, (as amended), (s5) state that no advertisement can be displayed without the consent of the planning authority (although advertisements that fall into certain classes have deemed consent). It is an offence to display an advertisement in contravention of the regulations. However, a person shall not be guilty of an offence if they can prove that the advertisement was displayed without their knowledge or consent.
The 1997 Act (s186) states that a person is deemed to be displaying an advertisement if they are:
- the owner or occupier of the land on which the advertisement is displayed, or
- the advertisement gives publicity to his goods, trade, business or other concerns.
24. The Town and Country Planning (Scotland) Act 1997 (s183) gives power to make different advertising regulations for different areas, and in particular make special provision for conservation areas, areas of special control, rural areas and areas requiring special protection on the grounds of amenity.
25. The Roads (Scotland) Act 1984 (s100) makes it an offence to place anything on a public road without the consent of the roads authority. This includes any way over which there is a public right of access and includes the road verge, foot path, bridges or tunnels over or under which the road passes. It is an offence, under this Act, to paint, inscribe or fix upon the surface of a road or tree, traffic sign, milestone, structure or works a picture, letter, sign or other mark. Schedule 8 of the Act sets the penalty, where an offence is proven, up to level 3 (£1,000) of the standard scale.
Enforcement of control over advertisements
26. The Town and Country Planning (Scotland) Act 1997 (s186) makes provision to enable the planning authority to require the removal of any advertisement that is displayed in contravention of the regulations and the discontinuance of the use of the site for the display of advertisements. Section 186(3) provides that where a person displays an advertisement in contravention of Advertising Regulations, they are guilty of an offence. Where an offence is proven, fines of up to £200 can be issued on summary conviction, and in the case of a continuing offence, £20 for each day during which the offence continues after conviction, according to section 7 of the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984.
Use of enforcement notices
27. The planning authority may also issue enforcement notices, according the Town and Country Planning (Scotland) Act 1997 (s127) and the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984 (s24), requiring the removal of any advertisement displayed in contravention of the Regulations. Enforcement Notices issued under the Advertisement Regulations generally require that the recipient is given at least 28 days notice before the Enforcement Notice takes effect, but this period can in certain cases be reduced to 7 days where the planning authority "considers it urgently necessary in the interests of public safety that the advertisement to which the notice relates should be altered or removed, or where they are satisfied that any steps required by the notice to be taken can be taken without the removal or substantial modification of any structure or the carrying out of any building or similar operations on land" (1984 Advertisements Regulations, s24(4)(a)).
Recovery of expenses
28. If the action required by an enforcement notice has not been undertaken within the period specified, local authorities may enter land and take action to remove or obliterate posters or placards. The Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984 (s26) gives local authorities the power to recover any reasonable expenses incurred by them in taking action. A landowner who has incurred costs complying with an Enforcement Notice may also seek to recover these costs from the person who put up the advertisement.
Power to remove posters
29. The Town and Country Planning (Scotland) Act
1997 (s187) also allows the local authority to remove or obliterate
any poster or placard displayed in contravention of the
This can be done after:
- the planning authority has given notice in writing that the advertisement is displayed in contravention of the regulations made under section 182 and that they intend to remove it on expiry of the notice; and
- providing at least two days notice of the intention to remove the poster. Circular 10/1992 looks at the power to remove or obliterate placards and posters.
Case Study 2:
Prosecution and ASBOs, Camden
A landmark ruling was made in September 2004, when a District judge granted three interim Antisocial Behaviour Orders ( ASBOs) against employees of 'Diabolical Liberties', said to be the biggest fly-posting firm in the country, banning them from illegally fly-posting in the borough of Camden. The Antisocial Behaviour Act 2003 applies to England and Wales, but there are similar but separate measures in force in Scotland. The ASBOs were sought after innumerable complaints from Camden residents and businesses, years of repeated prosecutions and requests to desist. In March 2005, Camden successfully secured an ASBO against the Managing Director of 'Diabolical Liberties' banning him for 2 years from arranging fly-posting anywhere in the London Borough of Camden. The effect was said to be a 95% reduction in fly-posting in the Borough.
This action followed the success of a similar action against Sony Music Entertainment ( UK) Ltd during which they agreed to cease fly-posting before the matter was taken to court.
30. Notice is not required if the poster does not give the person's address or if the planning authority is unable to ascertain it after reasonable inquiry. Entry to land for the purposes of exercising these powers may be gained if the land is unoccupied and it would be impossible to exercise the power without entering the land. The power does not extend to any poster or placard displayed within a building to which there is no public right of access. Local authorities may be liable to claims for any damage to property during the course of removing posters or for trespass.
31. The planning legislation does not permit the removal of adverts from within a building to which there is no public right of access, therefore making it difficult to remove posters from third party property.
Other potentially relevant powers
32. Fly-posting adversely impacts on local amenity, community well-being and has links to antisocial behaviour. The Local Government in Scotland Act 2003 gives local authorities power to do anything which they consider likely to promote or improve the well-being of their area and persons within that area. Well-being may include environmental factors such as the quality of the built environment, however, this is for the relevant authorities to determine.
33. The Antisocial Behaviour etc. (Scotland) Act 2004 gives the sheriff court the power to make an antisocial behaviour order if a person has engaged in antisocial behaviour. A person engages in antisocial behaviour if he or she acts in a manner or pursues a course of conduct that causes or is likely to cause alarm or distress (s 118). Individual planning authorities must decide what action is appropriate for the prosecution of those who fly-post and should take advice from their own legal teams.
Case Study 3:
Highways Considerate Contractor Scheme, Richmond
The London Borough of Richmond Upon Thames sets out the standard planning conditions, which apply to the erecting of hoarding, scaffolding and other construction-site works. The conditions include a clause regarding fly-posting:
- Any graffiti or fly-posting on the hoarding should be removed within 48 hours unless it is of an offensive nature, in which case it should be removed immediately.
Note: The case studies have been selected from a range of UK examples of best practice. Individual planning authorities must decide what action is appropriate for their area.