Control of Advertisements Regulations

Control of Advertisements Regulations Summary of Consultation Responses

- 1 - Control of Advertisements Regulations Summary of Consultation Responses

March 2007

Department for Communities and Local Government : London

- 2 - Department for Communities and Local Government Eland House Bressenden Place London SW1E 5DU Telephone: 020 7944 4400 Website: www.communities.gov.uk

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March 2007

Product Code: 06PD04387/a

- 3 - Control of Advertisements Regulations: Summary of Consultation Responses

Between 24 July 2006 and 18 September 2006 Communities and Local Government consulted on draft Control of Advertisements Regulations, draft Circular and Partial Regulatory Impact Assessment. We received over 100 responses. The responses are summarised below.

The figures in square brackets indicate the authority, organisation, or person that made the comment. These are listed in the Annex.

REGULATIONS

Regulation 3

2(b) (iii) – As many businesses have their own CCTV, there are likely to be objections to projecting signs that may obscure or limit views/coverage of a door etc. Circular should provide clear advice on this point – especially on whether a LPA should protect private CCTV of public installations. Guidance needs to include glare on cameras from illuminated signs. [75], [80]

Has no objection to proposal that development plans should be taken into consideration. However, stresses that there is a need for adequate guidance on formulating such policies. Needs to recognise importance of signage to ensure the success of a business. [93]

Regulation 5 5 (b) – does the word ‘interested’ have the same meaning as ‘with an interest’, as was evidently intended? Would prefer the latter, having ‘an interest’ in land usually means a legal or equitable interest. [77]

Regulation 6 and 7

- 4 - ‘deemed’ should be inserted before ‘consent’ and before ‘consent granted’ even though it is in heading. [77] Regulation 8

Suggests inclusion of a provision in Regulation 8 requiring the LPA to include in the DN or in an accompanying note to all those served (and to send the SofS on appeal) a list of all those who have been served with the DN. Advantage would be both self-containment and consistency with the Planning Enforcement Regs (Reg 5(c) of SI 2002 No 2682). This would require further consultation. [77] Regulation 9

Concerned that there is a new requirement that the application should be accompanied by “evidence that the owner and every other person with an interest in the site consents to the application”. Would not be a problem if there was a tick box as at present as in model application form as standard application form contains only tick boxes. Could be redrafted as “provide information that the owner of other person entitled to give permission consents to the application”. If it is the intention that every application be accompanied by written ‘evidence’ from all owners etc... Would be wholly unworkable and would increase the cost of making application by an incalculable amount. [51], [55], 64] Also, ‘evidence’ should be provided that the application is acceptable to the highway authority may created practical problems. There are instances where highway boundary is unclear. Considerations in above para, still apply and any dispute as to land ownership is not a matter for an adverts application. [51]

Consistency with applications for planning permission would make a requirement for 3 copies. [61], [64] Clarification of what constitutes ‘evidence’ is required. [64]

(2)(c)(i) – regulation does not specifically require detailed plan or specification of the proposed advert or its relationship to the building/site where it is to be displayed. Needs to be extra clause (c) (ee) “shows the design and dimensions of the proposed advertisement in elevational and cross sectional form and its relationship to the building or land on which it is to be located”. [75], [80]

(2)(c)(iii & iv) – onus should be on applicant to certify that (s)he has given notice of the application to all owners/interests. Clarification of what defines an interest in the land is needed. [75], [80]

(2)(c) – sub-paras – would incur huge legal admin costs if needed to

- 5 - provide full evidence of consent. Urges Government to revert to ‘tick box’ system. Subsection (iii) and (iv) should be omitted. [94], [96], [95], [100], [102], [103], [104], 105], [106], [107]

9 (2) (c) (iv) – It is envisaged that highway authorities will be raising charges for providing such evidence of approval, and, if so, is a set charge to be levied? [108]

Would like to see the inclusion of a timescale for responses from the highways authority. 14 days is given under S 13 (2) if the planning authority has a duty to consult the highway authority. [108]

Regulation 13

Appears to be no duty to notify either a parish council or neighbours of applications for express consent to display advertisements. [61]

Should be a requirement in 13 (e) for the relevant bodies to be consulted. [77]

Regulation 14(2-4) & Schedule 4 Schedule 2 appears to have been cast from Section 70A prior to the implementation of Section 43 of the PCPA 2004. Why? The Circular will need appropriate alteration. [61]

Would like to see provision placing requirement on LPA to impose condition, along lines of 14(6) (c), on any consent that they grant for less than the standard 5-year period. Would be in line with current advice in para 33 of Cir 5/92. [77]

Regulation 17 No duty to ensure those who have made representations on an application for express consent are made aware of the appeal and that they are able, if they wish, to make representations about that appeal. [61], [74]

Regulation 21

(1)(a) – reference should be to Schedule 1 not 2. [77], [78] 2(d)(i) – reference should be to 6(1)(b) not 6(1)(a). [77]

(3) – “given” should read “granted”. [77] Regulation 22

- 6 - Some of the caveats do not exist on planning application procedures. For example, under 22 (4) there is a requirement to get an applicant’s consent to email them? [75], [80]

Regulation 27

Why ‘an interested planning authority’ and not just ‘a local authority’ – [77] Regulation 30

Gives the level of fine as not exceeding level 4, but Explanatory Note page 50, gives it as level 3. [1] Regulation 31 and Table 2

Transitional arrangements in regulation 13 gives 5 years grace, however, if they fall within the description on Class 31, why do they need transitional provision? Should Regulation 31 column (1) of Table 2, refer to advertisements displayed in accordance with the relevant Classes in current regulations? This would make sense. However, there will be many adverts displayed totally unchanged since 1974, which appear to be excluded from the provisions of new Class 13, which states “advertisements displayed without express or deemed consent”. Must longstanding inoffensive deemed consent adverts be removed after the 5 year transitional period? [51], [75], [80] Transitional arrangements – adverts displayed wholly unlawfully for over 10 years will gain time-unlimited deemed consent, whilst advertisements which have been lawfully displayed since before 1974 under the 1992 Regs Class 13 will become unlawful after 5 year transitional period. [94], [96], [88], [95], [100], [102], [103], [104], [105], [106], [107]

Regulation 32 Clarification required as to whether existing directions under Regulation 7 on the 1992 Regs will be saved under 32(2)(a) since potentially such Directions will relate to classes of deemed consent that will have been changed by the new Regulations (and cease to have effect). Potentially a transitional provision may be required in respect of such Directions to give them continued effect until their expiry. [75], [80]

SCHEDULE 1

Class A It is not clear what constitutes a stadium – should be clarified. [67]

- 7 - Definition of historic arcade is complicated. [78] “retail purposes” needs to be defined – does this include A1 or A2 or A3 or A5 sui generis hybrids etc? [75], [80]

‘enclosed land’ should include transit and tram stations. [83] Class B

Should be more clarification of what ‘principally’ means and how long a vehicle be parked in a lay-by before it becomes ‘stationary and used for advertising’. [59]

Suggests Regulations made reference to Pedi cabs and Rickshaws. [75], [80]

Class C In conditions etc only what is stated in 2(a) is needed. The rest is obsolete. [77]

Class D

‘article’ needs clarifying. [59] Class H

Objects to ‘banning’ [non-exemption] of Cornish flags. [3], [4], [5], [6], [7], [9], [10], [11], [12], [13], [16], [17], [18], [21], [34], [60] Flying St Piran’s flag should not require express consent. [14], [19], [20], [21], [22], [25], [30], [34], [48], [50], [52], [65], [71], [86]

St. Piran’s flag – Cost in financial and resource terms of enforcing would be immense. Enforcement will result in backlash. Cornwall recognised by the EU as a cultural and historical region and informs EU policy-making. [9], [10], [13], [21] Little or no research or consultation has been carried out in regard to Cornwall history. [13]

Cultural distinctiveness in Cornwall is recognised in draft Regional Spatial Strategy. [65]

Objects to inclusion of EU flag. Flag is not a national flag – is a political statement [8], [23], [24], [27], [28], [29], [31], [32], [33], [35], [36], [37], [38], [39], [40], [41], [45], [57], [58], [70]

Objects to inclusion of EU flag (or American national flag) – given equal

- 8 - status as Union flag. Downgrades our national flag. Sees it as a betrayal to the Queen. The Queen and Her Heirs should decide. United Nations and Commonwealth flags not included in draft RIA. [8]

Has difficulty understanding why celebrating our place in Europe should be more important to people of Cornwall than flying St Piran’s flag which is symbolic of the County’s culture and heritage. [14]

Objects to allowing other national flags, specifically the EU flag. Could lead us to become a divided society. Would allow any individual, or sectarian grouping. Until we have been allowed referendum on continued EU membership, should require permission. [26]

Exemption should be widened to include recognised regional flags. Suggests wording could be traditional or historic county flags flown within the county boundaries. [15], [62], include local flags. [85]

Regs does not state whether flags includes a country not recognised by UK Government/a territory that is part of a country/variations of ‘national flags’/present day country’s previous flags. Excludes flags of British colonies/Royal Standard/flags of other worthy organisations. [47]

Could be provocative. [47]

Positioning/size/number/illumination of flags should not present a safety hazard/spoil street scene. [47], [72], [78] concerned will results in more flags of any size, there is no control over numbers, amenity concerns – LPA have no control over. Because they will be exempt discontinuance notice cannot be taken. [75], [80]

Not easy for enforcement officers to know whether a country’s flag is covered by regs. Flags permitted should be listed (alphabetically). [47]

Powers given to police to order non-exempt flags not to be flown. [47]

Should read ‘the national flags of any “existing” country” other flags countries that no longer exist could be flown. [90]

Have problems with differentiation between flags and banners and therefore which class is relevant. Would like a clear definition of a flag. [78]

Class I

This subject has been, and currently worded could continue to be a source of much argument. The Regulation should be clearer by specifying

- 9 - that the advertisement should, in any case, be readily visible from outside the structure. [90]

SCHEDULE 2

Conditions New drafting of standard conditions could lead to an advertisement being in an unsafe condition. But only to a private individual. Current wording prevents this. [61]

SCHEDULE 3

Class 1 Asks that express reference to Transport for London is stated as they cannot be regarded as a ‘public transport undertaking’. For example, TfL is a highway authority. LPA benefits from Class 1 in relation to their highway authority functions, TfL will not because it is not a local authority for the purpose of the Regs. Unclear whether TfL can be regarded as a ‘public transport undertaking’ in relation to its bus service, which in most cases are delivered by private companies under contract. [83]

Should be amended to allow display of functional adverts that are illuminated provided the illumination is reasonably required for the purpose of advertisement or in commercial and industrial urban areas the luminance levels do not exceed those set out in para 2 of Part 2 of Schedule2. [83]

Class 1A – from experience, minimum size board of 1.5 sq metres is required, so that Company information and information relating to health and safety can be displayed on boards at each of the Company’s sites. Permitted size in sub-clause 2 should be raised from 1.42 to 1.50 sq metres in area. [92] Useful if definition of ‘functional advertisements’ included. [99]

Class 2C

Although there is a definition of ‘business premises’, there is no definition of ‘premises’. Could be taken to authorise signs within forecourts and other curtilage areas associated with the buildings as well as the buildings themselves. In comparison, 2A specifies land and buildings, whereas 2B refers to premises. [88]

- 10 - There is a difficult inconsistency between this class and Classes 4 and 5 and possibly 6 with reference to the above. Refers to inn or public house, but could benefit as business premises in Classes 4 and 5 where the definition of business premises refers to licensed premises. Pubs not mentioned in the definition of business premises in para 43 of Circular. [88]

Class 3 Removing signs within 14 days of statutory period expiring – clarification needed, and examples of what constitutes a statutory function in this regard. [64]

Class 3A

Does not deal with issue of flats where boards displayed. [81] Estate agents prefer to display boards on posts in the communal grounds of the flats. Can result in unsightly large group in some blocks. [88] No clear definition of ‘site’. “14 days” and “sale has been completed” – this has always been hard to challenge. [81]

Increase in size of advert if two joined boards used – this could encourage boards to be deliberately made from two boards, where one might otherwise be practical. [81] Class 3C

Para 29 of Circular states “increased by a further 20%”. This does not form part of the new regulations. [81]

Class 3D

In a tourist area, lots of events want to display banner signs, some which go beyond the regulations. Taking action not supported by general public. Have offered specific sites but with limited success. Costs of applying are prohibitive. LPAs can introduce their own local development orders and adopt their own permitted development rules, why not do the same for advertisements? Could adopt series of criteria that would allow display of banner sign advertising public event of a certain size/location. [49] Class 4A/B

Made representations saying were concerned that some proposals in 2000 consultation would have profound implications for their business. MP wrote to Beverley Hughes (DETR) who responded and stated the proposed changes were not to be implemented. Various conditions and limitations (as well as size, illumination), as before, give due cause for

- 11 - concern. (Copy of Beverley Hughes’ letter enclosed with response). [63] Agrees with omission of current condition 2, but other conditions and limitations are so restrictive, long-winded and complex. [77]

Class 5 5(6) – if this is meant to refer to 4-sheet posters, 1.42 sq metres is incorrect. 4-sheet poster is 5’ x 4’3” or 1.52m x 1.02 m equating to 1.55 sq m. This is not a proposal in the consultation paper where this proposed size limit was to relate only to poster advertising. As drafted, would refer to all Class 5 adverts. The increased cost to businesses, in having to replace thousands of inoffensive (and often historic) signs, as well as having to apply for all such signs previously within the Class 5 deemed consent provisions is again incalculable. If it is the intention that this size limitation should apply only to poster advertising, then Class 5(5) should be amended accordingly. If it is supposed to apply as drafted, suggests that policy issues in the original consultation be re-opened so that the millions that will be affected can voice their objections. [51]

The 1.4 sq m restriction should be set aside in the case of any wall containing a shop window. [72]

Why is definition of “business premises” in the Circular and not in Reg 2 for consistency. [78] ‘no single advertisement shall exceed 1.42 sq m’ is not defined. Creates incentive to display more than one advertisement. ‘single advertisement’ not defined. [88]

Class 6

The new requirement that no single advert may exceed 1.42 sq m in area – again, not as proposed in consultation paper. As drafted, would refer to all Class 6 adverts. Same objections as detail above (Class 5). Cost to business incalculable. Size limitations to Classes 5 & 6, even if re-drafted so as to refer to poster advertising, are completely unnecessary. Industry no longer use 4-sheet adverts. Their requirement is for illuminated 6- sheet adverts which can be routinely re-posted with new posters. Since Classes 5 and 6 refer only, with limited exceptions for medical purposes, to non-illuminated signs. The required illuminated panes will not fall within theses classes. Even non-illuminated 6-sheet panels, which may fall within Classes 5 and 6, are of no use to the poster industry, since they only refer to signs which relate directly to the premises. [51]

General poster advertising is not permitted since the poster industry is unable to direct specific individual posters to specific individual premises

- 12 - to which they may relate the displays will not fall into theses classes. The proposed changes will not stop illuminated 6-sheet panels erected unlawfully. But will have enormous and surely unintended consequences for businesses wishing legitimately to display their own identity and goods. [51]

Para 50 to Circular and 6(1) read differently. Not very clear because the words ‘on each’ and ‘in aggregate’ in 6(1) are in tension. Needs clarification. [88] Class 7

Shouldn’t the requirements in Class 7 also be relaxed like requirements for national flags? [77]

Class 8

Important to keep minimum size otherwise owners of hoardings can be given permission for display of small adverts which are normally ‘fly- posted’. [1] Proposal would tend to constrain rather than embrace the dynamism of the advertising industry. Imposing a maximum height limitation would confine options to the standard formats and in any event to a height no greater than 1.6m above the ground. Change from a set of dimension of advertisements to an allowance is consequently of no purpose as the height limit would ensure no advertisement greater than 3m would be feasible on such development sites. [55]

A height limit of 4.6 would be too susceptible to vandalism; at weekends, broken glass bottles. Company keen to develop new products through design, reducing the potential for crime and anti-social behaviour. Not sustainable. Deemed consent class is intended to cut red tape, rather than increase the need to apply for express consent. [55] Suggests rather than a maximum overall height, that this class imposes a maximum height from ground level to the bottom of the advertisement display. This way can be assured that the height is beyond tampering with and the relevant Council can be assured that the advert used under this class serve the purpose of being part of a site screen related to the development. [55]

The limit of 36m2 is less than the area of a 96 sheet. Assume this was by accident rather than design. [55]

(5) “or 3.6 metres in an area of special control” should be deleted. No deemed consent provision relating to Class 8 displays in areas of special

- 13 - control. By virtue of Reg 19 (now to be 21) class 8 adverts can only be displayed in an area of special control with the benefit of deemed consent. [77]

Strongly suggest adding a removal of deemed consent for a building hoarding on any building immediately adjacent to a listed building, for the obvious reasons set out in the Planning (Listed Buildings and Conservation Areas) Act 1990 66(1), where the setting of listed buildings is considered important. [91]

Industry standard 96-sheet size of 37.51 sq m, it would be sensible for this figure to be changed to 38 sq m. Sub-section 5 reduces the clearance these adverts can have from the ground in many cases to only 5 metres. Maximum height limit of 6 metres would meet Government’s intentions from this regulation, while ensuring that adverts are less prone to defacement, graffiti and vandalism. Would also ease health and safety concerns about lower-level billboards. If limit stayed at 4.6 metres, would be forced to apply for express consent for the vast majority of Class 8 sites. If set at 6 metres, impact on planning system for these applications would be negligible. Strongly recommends alters height limit to 6 metres. [94], [96], [95], [100], [102], [103], [104], [105], [106], [107]

Should be transitional periods for boards already displayed lawfully. If it is decided to persevere with a height restriction in Class 8, transitional period should be three years. [94], [96], [95], [100], [102], [103], [104], [106], [107]

Class 9

In 1999 consultation paper, conditions and limitations were extended to clarify that adverts on “highway structures only apply to parts of highway reserved for use by pedestrians. This appears to have been left out due to oversight. [77]

Should include motorways. [99]

Class 12 Does not include character height and illumination restrictions similar to Class 2C. [68]

Class 13

Appears to be drafting errors (also class 14) where “continuously” has replaced “continually”. Yet draft circular (paras 13 and 14) states that breaks are permitted, as in current circular. [51], [55], [78], [88], [94], [96],

- 14 - [95], [100], [102], [103], [104], [105], [106], [107] Class 13 appears to give consent to adverts displayed without express or deemed consent, without alteration, for the preceding 10 years, presumably from any date on which its lawfulness is challenged. However, certain provisions would not appear to be consistent within this drafting scheme. Adverts displayed without express or deemed consent as unlawful, therefore how can there be any “most recent [and lawfully] display” as in Class 13(3) and (4)? [51], [95], [105]. “and lawfully” should be deleted. [95], [105]

It would appear that adverts which have been altered in someway during the preceding 10 years, but in a way which would put them outside the provisions of the old Class 13 would be excluded from the new Class 13. Appears to give legality to presently unlawful displays while it excludes very many existing lawful displays. [51],] In new Class 13 is 13(2) (b) and (c). This was not canvassed in 1999 consultation and is not explained in draft circular. Appears to provide possibility of wide misinterpretation. Cannot see reason for addition of these. Definition of “advertisement” in 1990 Act would tend towards interpretation that actual structure of advert is part of advertisement and would not be affected by 13(2). Some LPAs would maliciously seek to use these provisions to claim that advert structure cannot be replaced or repaired even in the normal course of maintenance. [51], (may lead to conclude that structure could by the physical support of an advertisement. [55]

Changing “substantial” to “material” is a far less stringent test. [55]

There is no suggestion as to who must prove the sign has been in place for the requisite period. [72]

Supports 10-year period. [75], [80]

“Continuously “not clearly defined. [81]

Use word ‘continually’ not ‘continuously as has been established by Courts (Westminster City Council v Moran 1998). [95], [105]

This should only be allowed provided there have previously been no objections to the adverts on amenity or public safety grounds. [99]

To solve above problem, add ‘express’ between ‘without’ and ‘consent’ in the Class title, and delete the words ‘or deemed’ in the Class description. [95]

- 15 - References to ‘deemed’ consent should be removed. [94], [96], [100], [102], [103], [104], [106], [107]

Class 14

Reads as if after the expiry of express consent any advert then qualifies as deemed consent. The intention should be that deemed consent applies if the same advert continues to be displayed after expiry of express consent. [88]

Class 15

Wishes to ensure they are not located on areas of land adjacent to trunk road/motorway. [74] Should be further restrictions for balloons within 500m of a conservation area as the effect on their setting can be equally damaging. [75], [80]

Class 16 This section should read:

“Class 16 Advertisements on telephone kiosks

Description 16. An advertisement displayed on the glazed surface of a telephone kiosk, other than a kiosk— (a) of type K2 (1927) or K6 (1935) designed by Giles Gilbert Scott; or

(b) maintained by Spectrum Interactive, painted black and being of type K2 (1927) or K6 (1935) designed by Giles Gilbert Scott; or

(c) maintained by Kingston Communications, painted white and being of type K2 (1927) or K6 (1935) designed by Giles Gilbert Scott” [53]

Would like to put an advertisement of type K6. This would be on the reverse and would be sealed within a black metal frame. This would stop graffiti and fly posting, which is a huge problem especially on the reverse of kiosks where there is a ‘blank canvas’ for people to do graffiti. [53]

Would like to have illuminated advertisements. We believe that BT Kiosks and Bus Shelters are allowed illuminated advertisements now, so why

- 16 - does this legislation mention that? [53], [73]

Would like to be able to display 2 advertisements on 2 sides, but 1 of them should be ‘contra vision’ i.e. pot marked with holes to allow light out. [53]

Class appears to permit advertising distasteful services. Would raise moral issues. [67]

The arguments which support illuminated advertising on bus shelters and similar structures (i.e. necessary to offset installation and maintenance of such structures which are regarded as necessary for social reasons, apply equally to telephone kiosks. Payphone operators would find the cost of applying the express consent for illuminated advertisements prohibitive, when as is likely, individual kiosks will be located in different LPAs. [73]

Restrictions in Class 16(3) seem ambiguous. Welcomes clarification on what might be prohibited and what might be permitted. [73]

Not clear whether or not adverts under this deemed consent can be placed unlit on the pillars of the kiosk. Would like to place adverts on the fabric of the kiosks (photo showing example provided) (unlit advertising on the pillars of kiosks) and similar forms of advertising, subject to restrictions on size of characters/symbols. [73]

Both internal and external must be controlled. The use of ‘on’ in the title to the class and the description which uses ‘on the glazed surface’ are capable of being interpreted as only applying to an advert on any glazed surface whether internal or external. [75], [80]

Crucially, an amendment needs to be made to Class 12 to exclude its application to telephone kiosks since they are undoubtedly capable of being a ‘building’ in many instances and internal adverts on glazing would otherwise benefit from deemed consent under this class. [75], [80]

Use ‘adjacent’ instead of ‘adjoining’ since kiosks in rows seldom physically adjoin one another. [75], [80]

All such adverts should require express consent. Should not have a deemed consent class particularly in view of the efforts of English Heritage in expending considerable time and resources to a campaign aiming to reduce street clutter, and the Gov’s own commitment to improving liveability. [76]

How would one know what a type K2 or K6 is, or who maintains them?

- 17 - [78]

There were fundamental errors in original telephone kiosk consultation paper concerning transparency of advertisements. Document referred specifically and consistently to Contra Vision as a means of advertising on payphones. If solid advertisements were understood to be a possibility by respondents to consultation paper, doubts whether responses would be the same. Option 2 would have received widespread objection. Therefore, proposes adding a generic requirement for see-through on the upper windows of telephone kiosks, as follows:

“Class 16 Advertisements on telephone kiosks

Description 16. An advertisement displayed on the glazed surface of a telephone kiosk, other than a kiosk—

(a) of type K2 (1927) or K6 (1935) designed by Giles Gilbert Scott; or

(b) maintained by NWP Communications and painted black; or

(c) maintained by Kingston Communications and painted white.

Conditions and 16.—(1) providing at least 90% of any advertisement on an

Limitations upper window of a telephone kiosk is a see-through graphic, either:

(i) a perforated material with a regular pattern of holes of not more than 1.5mm diameter with at least 25% transparent area, or

(ii) a non-perforated transparent film with a regular pattern of dots not greater than 3mm diameter or lines of width not greater than 3mm leaving at least 25% transparent area. (2) No advertisement may be displayed in an area of outstanding natural beauty, a conservation area, a National Park, the Broads or an area of special control.

(2) Illumination is not permitted.

(3) Subject to paragraph (4), with the exception of the name of the electronic communications code

- 18 - operator, its trading name or symbol, no advertisement may be displayed on more than one face of the kiosk.

(4) Where three or more kiosks are sited in a row or group, the display of an advertisement on any face of one kiosk shall preclude the display of an advertisement on the face of any adjoining kiosk.” [97]

Have produced a risk assessment. [enclosed with response], which concluded that no solid advert should be placed on glass door of payphone kiosk/any upper window of a kerbside kiosk/upper window without an individual risk assessment being undertaken on location and configuration. Not to require see-through adverts on the upper window would pose a substantial and unjustifiable risk to the public. [97]

Disappointed Government rejected the option under discussion in 2001 of potential advertisers operating a self-regulatory code of practice within the deemed consent process, when considering using telephone kiosk as an advertising medium, in favour of introduction of statutory conditions and limitations. [105]

Cannot recall there having been any consultation over 16 (4) and the restriction on advertising on consecutive faces of kiosks. [108]

Explanatory Note

Reg. 4 relates to Reg. 5 and vice versa. [1]

CIRCULAR

Para 1 – Delete “First”. [51], [77] Para 4 – No point in reversing Schedules. [59]

Would be more user friendly to state source of definition of an advertisement, if not quote definition in full. Include a combined interpretation section, instead of separate ones for Regs and Schedule 3,

- 19 - this pointing to where the individual terms appear. [88]

Para 10 – After “local planning authority” insert “Secretary of State” (to take account of new standard application form. [51]

Para 11 and Annex para 98 – May need to be amended if views on site ownership find favour. “Evidence” replaced with “confirmation” (tick box). Regulation 9(2) should read “”the applicant may agree”. There is no 9(2) (iv). [51]

Para 12 and/or Annex para 107 – should state where an application is not granted express consent, LPA should refund application fee. [51]

Para 15 – Recommends that a pdf version of the Guide is made available on website and that direct URL links to publication be promoted. [99]

Circular Annex

Paras 2-4 – Definition should include placards attached to people or animals. [99]

Paras 2-4 – Would be more user friendly to state source of definition of an advertisement, if not quote definition in full. Include a combined interpretation section, instead of separate ones for Regs and Schedule 3, this pointing to where the individual terms appear. [88]

Para 3 – “blinds and canopies” may be usefully qualified with the addition of “which contain advertising”, since plain blinds or canopies are not adverts, but may require planning permission. [51] Para 5 – Amend “content or subject” to read “content, subject or design” to more closely follow the statutory requirement. In last sentence, after “controlled” insert “but only” to make it clear that such matter may only be controlled in the interests of amenity and public safety and not on any other consideration. [51]

Para 9 – Further clarification required as to where mobile advertising vans fall. [98]

Para 9 – Suggests omitting the word ‘stationary’ and last sentence worded “e.g. vehicles or trailers, whether mobile or located in fields, lay- bys or elsewhere, used for advertising purposes.” To cover vehicles that are driven through the streets used for advertising purposes. [90]

Paras 10/11 – Welcomes requirement for consents to be accompanied by statement of permission from owner and highway authority. [59

- 20 - Para 13 – Last sentence could lead to significant misinterpretation. Paragraph appears to exclude ancillary development which would lead to double applications for express consent for the advertisement itself and its structure and for planning permission for ancillary development, therefore increasing work of and cost to applicants. [51]

Para 14 – There is common misconception by advertisers that if they comply with deemed consent they can advertise on local authority owned street furniture. Guidance/ standard condition 1 should clarify that it relates to both private and public land. [98]

Paras 17, 20, 22, 36, 46 and 57 – “in the hours of darkness” does not follow the regulations. Regulations states illumination should be “in a manner reasonably required to fulfil the purpose of the advertisement”. Should be amended to follow regs. [51]

Para 20/22 – would be better if both classes fell into one class. [98]

Para 24 – line 4 – insert ‘3’ between ‘Class’ and ‘F’. [77]

Para 32-33 – Sometimes difficult to establish if organisation/business is carrying out event for commercial purposes without access to financial information. Further guidance would be welcome. I.e. only including organisations which fall within meaning of the Charities Act 1993. [98]

Para 35 – not sure why maximum height quoted (3.6m) is lower than for all other Class 3 temporary adverts. [77]

Para 36 – Illuminated advertisements – Circular seems to confuse rural areas with ASCAs (also at Annex, para 149). ASCAs do not cover all rural areas. It is unclear from wording in Class 4 whether urban or rural areas, outside those covered by the designations mentioned above, will be protected from this form of advertisement. [76]

Para 38 and 40 – insert “projecting” before “advertisement”. [51]

Para 43 – At end of final sentence, insert “or a material alteration of a similar kind to its external appearance”, to follow para 1(a) (ii) in Part 2 of Schedule 3. Otherwise, para implies that only the addition of a shop front would make a building qualify as “business premises”. [51]

Para 46 – luminance levels have not been relaxed. All are the same or lower than the 1992 Regulations. [51]

Paras 49 – in 3rd sentence, “enclosed” should be deleted. It is misleading. Definition of “forecourt” in part 2 of Schedule 3 makes clear

- 21 - that forecourt does not have to be enclosed. [51]

Para 50 – “an advertisement on each forecourt” should be replaced by “advertisements on each forecourt”. There is no limit as to number. “on the forecourts” should be replaced by “on each forecourt” for clarity. [51]

Needs to make clear whether 4.6m2 limit applies to each forecourt or the total for all forecourts. Clarify what ‘on the ground’ actually means. [78]

Para 52 – 3rd sentence – delete full stop at end of line 4, replace with comma and continue with lower case initial letter ‘in’. [77]

Para 55 – “area of special control” should be included as it is stated in Regulation 21(2) (e). [51]

Para 58 – last sentence is incorrect. Class 12 would apply if structure to which the advertisement was affixed was authorised and lay within a verge or central reservation of a dual carriageway. [51]

Para 60 – delete ‘outdoor signs for’ in line 2 and substitute ‘are’ for ‘is’ in line 4. [77]

Para 61 – needs to be left justified. [77]

Para 62-63 – it is common practice for developers/organisations to attach directional signs to LA owned street furniture. Clarification is required as to whether or not developers would have to erect their own posts for street signage on private land or could continue using LA owned street furniture. [98]

Para 64 – re-draft second sentence to read “Class 12 includes: all advertisements which are illuminated…; and non-illuminated advertisements within one metre…. [51]

Para 65-67 – It is common practice for flyposters to photograph and record flyposters that they have put up, such records can be kept for many years. Concerned that flyposters that have used long term void properties etc for flyposting for a period of 10 years would be granted deemed consent for the sites. [98]

Para 70, line 4 – “considerations” should be followed by a “;” not a “,”

Para 71, line 4 – Would permit a technical evasion of the regs by displaying the balloon immediately outside, though still clearly visible from a Conservation Area etc. Suggests adding “The site must not be so obtrusively visible as to impair the amenities of Conservation Area etc.”

- 22 - [90]

Para 75 – replace “should be avoided” with “is not permitted”. This is not advice, it is mandatory in Class 16 (4). [51]

Para 76 – delete last sentence. Level of illumination within a telephone kiosk is not controllable under adverts regulations. [51]

Para 80 – Circular says person benefiting from advertisement can be served with a discontinuance notice, but this is not reflected in the Regulations, could be open to challenge. [64]

Para 82 – drafting implies there are 3 different types of discontinuance notice. Does not follow scheme of Regulation 8 and is unintelligible. [51]

Para 87 – “the date the notice takes effect will be the date the appeal is finally determined” is incorrect. Section 78(4) of the 1990 Act only states “on determination of an appeal under section 78 the S of S shall give such directions as may be necessary for giving to his determination”. The effective date of notice will therefore be as stated in the decision on an appeal and will not necessarily be the date of the decision. [51]

Paras 89, 95 – Correct ODPM. [51], [77]

Para 90 – expand to emphasise need for up-to-date orders. Add that out- of-date orders not afforded great weight in an appeal where clearly inappropriate in circumstances of any particular case. [51]

Para 91 – concerned that this could be used to justify low standards of urban design. Sends unwelcome signal that lower standards of design are acceptable if the development is commercial or industrial, and is inconsistent with the Government’s wider environmental aims. Suggests re-wording to “Deciding whether to include more land in an existing order will depend on whether the proposed addition is of at least equal amenity value. Deciding whether to exclude land from an existing order is likely to depend on whether there has been substantial development of a poor quality which cannot be remedied in the foreseeable future. If a development is of good architectural quality…..etc” [90]

Recommends that in the Circular (para 91), an implicit link is made between strong advertising controls and good design is strengthened by a cross-reference to para 36 of PPS1 – that ‘it may be appropriate’ to maintain ASCA designations where new development……… Should be made clear that PPS1 states ‘key objectives should include ensuring that developments…are visually attractive as a result of good architecture and appropriate landscaping’, meaning therefore that it should not be a

- 23 - question of ‘if’ new development is of good architectural…..” [76]

Para 93 – final sentence – account hasn’t been taken of earlier comments, which remain valid, about desirability of using OAC address that’s unlikely to change, or website address, rather than current Secretary’s home address. [77]

Circular, Annex paras 104-105 – this will help reinforce the cost efficiency of ASCAs for LPAs and PINS through not having to deal with such applications in the future. This point should be included in the final RIA. [76]

Para 108 – line 2 refers to paras 77-85 – should read ‘80-88’ – [77]

Para 109 – Line 2 – omit comma after “in writing”. [90]

Para 112 – replace “should be consulted” with “must be consulted”. This is mandatory by Regulations 13(1) (e). [51]

Para 116, Para 1 of Appendix C and Guidance Note in Appendices F1, F2, F3 – time period for appealing against discontinuance order is incorrect. The period is any time before the notice takes effect under section 78(2) of the 1990 act as amended. [51]

Para 120 – (b) (1) – ‘117(a)’ should read ‘120 (a)’. [77]

Flyposting

Para 131 – in 2nd sentence after “but also”, insert “(with certain reservations explained below”). This will alert readers to Para 132. [51]

Para 132 – liability on owners – The defence, however, should read knowledge or took reasonable steps to prevent display or subsequently to secure its removal. [98]

Para 136 – Though section 31 of the Clean Neighbourhoods Act does not apply to privately-owned building facing the street, this nevertheless present major gap in ability of LAs to protect streetscape, since built streetscape will mainly be privately-owned. Would be helpful to offer LAs more guidance as to what recourse they may have to remedy such cases. [90] Guidance is at odds with what Fly-posting Action Group told by DEFRA regarding being able to prosecute beneficiaries regardless of sending a 48 hour letter/notice. There are inconsistencies on page 36, para 131 and 134. para 131 contradicts 149. [87]

- 24 - Para 140 (2-6) contradicts previous advice given to Fly-posting Action Group by DEFRA – needs clarifying. [87]

Para 141 – removing illegal posters for Court – Would not be necessary for criminal prosecution cases. Number of legal issues which need considering i.e. T&C Planning Act 1990/HA 1980 the LA does not have powers to remove illegal posters from private property without notice unless owner/beneficiary from the advert cannot be ascertained after reasonable enquiry. [98]

Para 144 – contradicts advice in previous paras. [87]

Guidance should be clear that regs only apply to private land and does not give deemed consent to putting such adverts onto highway land (street furniture.) [87]

Would be helpful if regulations could clarify whether banner-type advertisements should be treated as flyposting or as normal illegal advertisements and which class they would fall into. If latter, would be helpful to specify in para 143 “such as pictures, signs or fly-posting attached to any… [90]

Would like to see powers to act against venues who continually flout the regulations. Wrong to have to approach venue on each occasion pointing out locations asking them to remove signs. Should be able to formally notify venue that immediate action will be taken in any subsequent offences and onus lies clearly on them to advise anyone hiring the venue that flyposting will not be tolerated. Should include weekend venues that host sales events then remove flyposters by Monday. [49]

Would like to see definition of placard and poster extended to include any advertisement. [49]

Would like to see more robust powers to obliterate advertisements – powers to paint over them. Trailers or vehicle which advertise alongside motorways should also be removed. [49]

Para 148 – contradicts section 132 of Highways Act 1980, which, allows local authorities to remove painted marks from street furniture (structures within highway). [87]

Para 149 – “rural areas are usually included in areas of special control” is entirely incorrect; for example, none in rural areas of Suffolk or Northumberland. There is no legal or judicial support for the statement “the length of the highway in the LPA’s area”. [51], [78]

- 25 - Paras 149 and 150 constitutes a presumption of refusal for advertisements alongside motorways and trunk roads. It should thus be easier to sustain HA objections to advertisement applications in the future. [42]

Para 150 – 2nd sentence should be redrafted as “The Highways Agency will not support any application for an advertisement which could unduly distract drivers”. Follows more closely advice in Appendix B and PPG19. Last sentence in para can then be deleted. [51]

Para 155 – Urges DCLG to alter sub-title of Part 6: Other Matters to “Sign posting of Rural Businesses” in order to provide all rural business with the same opportunities for advance signage of their businesses. New Circular should emphasis on the benefits of signs to the rural economy and road safety. [93]

Appendices

Appendix A Notes Para 4 -“static” …. ”have moving parts” is tautology. One of the other should be deleted. [51]

Appendix A Notes Para 8 – might usefully advise that the application fee should be refunded where LPA could not grant consent because of Regulation 14(1) (c). [51]

Appendix B quotes the 1981 edition of the Traffic Signs Regs – should be Traffic Signs Regulations 2002 together with Traffic Signs Regulations and General Directions 2002, which came into force 31st January 2003. Also states that consultations should be sent to Regional Director of the DfT rather than the Highways Agency. [42], [74] Appendix B -2(e) – equally distracting waiting for what next advert would be. Suggests re-wording to “those which incorporate moving or apparently moving elements in their display, whether of successive individual advertisements or single advertisements where the whole message is not displayed at one time, as both may increase the time a road user spends looking at them”. [90]

Appendix B Paras 1-2 – Would like an additional category of ‘those which are likely to cause driver distraction’. [74]

Appendix B Para 2 should be clarified. Wording is being used to justify posters well above the roofline. Suggests “less likely to be road safety problems if the advertisement is set against a commercial or industrial background and is not on the skyline.” [74]

- 26 - Why just refer to motorways and trunk roads, why not just state ‘highways’. LPAs may wish to apply Regs to other roads. [78]

Appendix B Para 3 – should refer to Mayor of London rather than DTp London Regional Office; and to the Highways Agency rather than RDs (Transport). [51]

Appendix B Para 6 – does not set out what could constitute a danger to traffic on a motorway. Are these “dangers to traffic” the same as those listed in paras 1-2? [74]

Appendix C Para 2(b) – not (g) as drafted – to be even-handed, the reference to costs should also note that an appellant’s costs may be awarded against a LPA. [51]

General Comments

Would be helpful if all LPAs could be given advance warning of the introduction of the new Regs to revise their applications forms, standard conditions, appeal guidance notes and other information to reflect the changes. [54]

Regulations are complicated. Should have a structure that is in line with controls over planning. Where definitions have been expanded, the opportunity to provide additional clarity in other areas have not been taken. Should be a definition of poster or placard therefore LPAs and courts are required to decide. Disappointing that the vague definition of a forecourt is not tightened up; remains uncertainty as to whether a car park can form part of a forecourt. [56], [59]

Proposals are unnecessarily complicated by too many sizes/heights. Should be simplified. Measurements should not go 2 decimal places. Application forms should separate out personal details from other information. [59] No mention is made of laser advertisements. Have not strengthened LPAs powers to take action against temporary adverts. [64]

Increase in opportunities to display illuminated adverts may have adverse effect on visual amenity, add to light pollution. Types and levels of lighting difficult to monitor. [65]

Opportunity to simplify regulations has been lost. [65]

Circular duplicates advice in PPG19 – PPG should be withdrawn once new regs/circular takes effect. [65]

- 27 - Suggests Planning Act be amended so that illegal advertisement to be subject of an enforcement notice – would take bulk of work away from courts. Many authorities would rather not use Courts so regulations aren’t always enforced. [66]

Restrictions to conservation areas, AONB etc should apply to Classes 2, 5, 6, 7A and 9. [68]

Since current circular drafted there has been new phenomenon of larger 5m x 7m and up to 20m x 30m poster advertisements (by LED). Suggests defining normal as a maximum of 48 sheets [3m x 6m] and in printed format. [74]

DCLG should carry out further investigation into linkage between driver distraction and road accidents. This is always an issue of debate at appeal hearings. Include statistical data. [74]

Applicants should be required to support their application with a Risk Assessment of safety audit to cover: method of instalment/erection, maintenance and structural soundness. HA can offer further guidance on criteria and detail required. [74]

There is much debate at appeals of effectiveness of conditions to limit poster content readable at a glance. Such conditions do not meet tests of Circular 11/95. Posters change fortnightly making monitoring impractical – vetting process too difficult. Circular should advise on this. [74]

There is a new form of advertising not covered in regs/circular – projection of illuminated advertisements against buildings, landscape features and on occasions the sky. Recommends that reference is made under Part 5 – unauthorised advertisements – to need express consent. [75], [80], [82], [84], [101]

Sky beams represent a danger to road users. Are a form of light pollution. Should be expressly covered in the regulations and added to the definition of advertisement. Also an issue of energy wastage and carbon emissions. [84] [82]

Opposes luminance levels until Government has consulted on and finalised policy on light pollution. [76]

Modern petrol station colour schemes should be included within definition of advertisement. Structural elements constitute a corporate advertising statement. [76]

Suggests inclusion of specific provision in regs whereby advertisers could

- 28 - seek a determination as to the lawfulness for the purposes of the Regs of any existing or proposed advertisements. PINS advert inspectors best qualified in interpreting regulations would be able to deal with these issues obviating the need for advertisers to pursue the s191/192 route and have matter determined by Planning Inspector. Presently nothing stopping advertisers from using the s191/192 procedures on the basis that – rather than directly seeking a determination that an advert does not require express consent (or further express consent) – the advert is for lawful planning purposes as defined in s191 does not require planning permission. Such applications based on claim advert enjoys deemed p/p by virtue of s222 which in turn necessitates interpretation of adverts regs to determine whether advert is “in accordance with regulations made under s220”. Use of LDC procedures still indirectly requires interpretation of advert regs by Planning Inspectors in the event of an s195 appeal. [77]

Headings could be expanded on e.g. does ‘adverts on buildings’ actually mean on the building itself. [78]

Include a para setting out position in regard to banners and recommending good practice in dealing with them. [78]

Directional signs are vital for farm businesses and farm attractions. Hopes the revised Circular will promote an improved culture of co-operation between the farming community and highway authorities. [79], [93]

Circular seems to re-state what the regs say without adding much. Each deemed consent class should be clarified by highlighting the similarities and differences between the different classes. More interpretations required. [88]

For all the prescribed classes (deemed consent), the correct limits should be 75mm and 30mm, which if quoted in metres, would be 0.075m and 0.030m respectively and not “0.75m (or 0.30m in areas of special control)”. If left as printed, some letters could be larger than the sign they are on. [46]

Final Circular should include reference to 2001 briefing ‘Local Reviews of Advertising Controls’ – copy enclosed with response – and the possibility of CPRE representatives being able to assist LPAs in carrying out ASCA reviews. [76]

Disputes the need for ASCAs. Are rarely reviewed. [93]

Does not agree that system “would be more user-friendly and responsive

- 29 - to the legitimate interests of the industry”. Cost compliance would be astronomical, possibly running into many tens of million pounds. [51]

- 30 - Control of Advertisements Regulations: Consultation Responses

No Name Organisation LPA?

1 Ian Durrant Lincoln City Council Yes 2 David Proudfoot Proudfoot Properties 3 Glwys-venta 4 George Ansell 5 Micheal O’Connor 6 Roger Garside 7 Peter Coleman 8 Anne Palmer 9 Bert Biscoe 10 Barbara Shaw The Cornish Gorsedd – Gorseth Kernow 11 Noel Carthew 12 Symon Harner 13 Rod Lyon 14 Karl Roberts Carrick District Council Yes 15 Stephen Rickitt Northumberland County Council Yes 16 Dr David Gill 17 Mighal AnGov 18 Ashely Drake 19 Rod Toms 20 Keith Bate 21 Cllr Andrew Long Callington Town Council 22 Michael John Chappell 23 Mark Starr 24 Jacqui Ludlow 25 Mark Clarke 26 Richard Spencer 27 Matt Davies 28 Nicholas Chance

- 31 - 29 Revd Victor S Hope 30 Brendan McMahon 31 James Wood 32 Andrew Kirkham 33 Beverly Johnson 34 Rhisiart Tal-e-bot Celtic League 35 Clifford Goodman 36 John Amey 37 Michael Peck 38 Jean Shaw 39 Jim Hamilton 40 Roger Helmer 41 Fred Bishop 42 Nicholas Corby Highways Agency 43 Nancy Rudden 44 Michael Chappell 45 Rahani Starr 46 Lloyd Richards 47 John V C Butcher 48 Lynda Mattick 49 Steve Cornwell 50 Colin Roberts 51 Albert Baxter British Sign & Graphics Association 52 Tony Piper The Celtic Congress ~ Cornwall 53 Mark Jacobs Spectrum Interactive Plc 54 Duncan Chadwick Cherwell District Council Yes 55 Martin Stephens JC Decaux UK Limited 56 P O’Connor City of Worcester Yes 57 Alan England 58 Colin Ray 59 Susan Harley Rushcliffe Borough Council Yes 60 Sister Elizabeth Morris 61 Robert Jackson Hart District Council Yes 62 Maxwell Adams 63 Glenn Brawn Posmark Limited 64 Phil Crabtree Birmingham City Council Yes 65 Jon Pender Kerrier District Council Yes 66 Christopher Stathers Mid Suffolk Yes

- 32 - 67 Bill Munday Reading Borough Council Yes 68 Alexander Tait Lighthorne Parish Council 69 James Blair Tourism South East 70 Cllr Gavin Ayling Adur District Council Yes 71 Jane Howells 72 J E Alford Sefton Borough Council Yes 73 Peter Davies Communication Infrastructure Advice 74 Kathryn Burgess Highways Agency 75 Gordon Chard Westminster City Council Yes 76 Paul Miner CPRE 77 Richard Pratt PINS 78 Mrs Sandy Kinnersley Huntingdonshire Disctrict Council Yes 79 Diane Mitchell National Farmers Union 80 R A MacQueen Planning Officers Society 81 Joy Thomas Chelmsford Borough Council Yes 82 Martin Morgan-Taylor Demontfort University 83 Susan Ivory Transport for London 84 Helen Matthews DEFRA 85 David Robins Wessex Society 86 Alasdair MacCaluim 87 Fiona Campbell ENCAMS 88 Philip Wears Walsall Council Yes 89 David Brooke Landscape Access Recreation 90 Michael Hammerson The Civic Trust 91 Mr C P Wagner English Heritage 92 Leslie Morris Severn Trent Water Limited 93 Fenella Collins Country Land & Business Association 94 Terrence J Dyer Primesight Limited 95 Alan James Outdoor Advertising Association of GB 96 Cliff Pratt ClearChannel Billboards 97 Roland Hill Contra Vision Supplies Limited 98 Russell Davey Birmingham City Council Yes 99 Kevin Clinton Royal Society for the Prevention of Accidents 100 Mike Hawes Excel Outdoor Media Limited 101 Steven Durno The Law Society 102 James Tulloch Graefield Limited 103 David Beattie Impact Outdoor Advertising

- 33 - 104 Marilyn Kyle Rochester Poster Services Ltd 105 Jim Rothwell The Advertising Association 106 Paul Hardy Falcon Outdoor (North) Limited 107 Ron De Young Ron De Young Associates

- 34 -