Thursday, 21 October 2010
Early in 2006, I commented on the issue of ‘mobile’ advertisements. Although that piece is still available in the archive, I have re-printed it below for ease of reference.
The issue came before a Divisional Court of the QBD earlier this year in Tile Wise Ltd v. South Somerset DC  EWHC 1618 (Admin). This was an appeal by way of case stated from the Crown Court, in which judgment was given on 17 June.
The question before the Crown Court had been whether the exemption from advertisement control of "an advertisement displayed on or in a vehicle normally employed as a moving vehicle" granted by Regulation 1, paragraph 3, and Schedule 1 of the Control of Advertisements Regulations, applied to the advertisements which had been the subject of the prosecution in that Court. This exemption is subject to the qualification that “the vehicle is not used principally for the display of advertisements".
In the Crown Court the prosecutor agreed that the four vehicles in question were indeed normally (in the sense of usually) employed by the appellant in the collection and delivery of goods. Thus, the court had no difficulty in deciding that the appellant brought itself within the first part of the exemption. However, the qualification of that exemption presented some difficulty as to its interpretation.
Counsel drew the Court’s attention to Circular 3/2007, which gives the following on this exemption :
"Class B - An advertisement displayed on or in any vehicle normally employed as a moving vehicle. This includes boats (any vessel on any inland waterway or in coastal waters), trains or aeroplanes. This does not include any vehicles used principally for the display of advertisements, e.g. stationary vehicles or trailers in fields or lay-bys for advertising purposes".
This advice is not of course legally binding in any way, but the Court agreed that the guidance identifies the mischief which the words of the legislation themselves reveal. One frequently sees commercial vehicles advertising their owner's goods and services; in London, buses and taxis can be seen advertising goods, services and events. All these advertisements are exempt if the vehicles on which they are displayed are being normally employed as moving vehicles. Vehicles are not, however, exempt if they are used principally to display advertising.
The conclusion which the Divisional Court reached was that the exemption relates to the moment that the advertisement is being displayed by the vehicle and to the use to which the vehicle is then being put. However, there was a distinction between the drafting of the exemption (in column 1), which referred to an ‘advertisement’ in the singular, compared with the wording of the qualification (in column 2), which referred to ‘advertisements’ in the plural. When considering the reason for this distinction, it was necessary to ask what purpose columns 1 and 2 would achieve if they were both intended to refer to a generalised state of affairs. If that is the correct construction, it is striking that column 2 would be simply a mirror, in different words, of the exemption in column 1 (and would serve no useful purpose).
The Court therefore held that column 1 is concerned with the specific occasion on which the advertisement is being displayed and the use to which the vehicle is being put on that occasion. In the case, for example, of a commercial vehicle, if at any time it is not being normally employed as a moving vehicle it will not be exempt. Even if it is being normally employed as a moving vehicle, its advertisement will not be exempt if the vehicle is principally used for the display of advertisements. The Court did not accept the argument that this construction of column 1 would render advertisements on commercial vehicles ordinarily parked up liable to prosecution. Parking of a vehicle is an ordinary incidence of the normal employment of a moving vehicle. It will be exempt unless it is established it is principally used as a display of advertisements, in which case, the column 1 exemption will be dis-applied by the column 2 qualification.
In the present case, the appellant usually employed its vehicles on the road. When they were not so employed, the vehicles were used as stands on which to display advertisements. If the appellant's construction of the exemption (and of the qualification) was correct, it could avoid the objective of planning control by swapping vehicles. The logical consequence of the appellant's submissions would be that, as long as in practice, the appellant kept, in respect of each such vehicle, on the right side of "usual" employment, the advertisement could be kept permanently in place. That, indeed, appears to have been the objective of the appellant. Such a result, the Court decided, would render the control of advertisements control useless and cannot have been the intention of the Regulations. The Court accepted the prosecutor’s argument that the exemption must be read so as to apply to the use being made of the vehicle at the time of the alleged breach.
The Divisional Court was satisfied that, on the occasions when these vehicles were used as advertising hoardings, they did not come within the exemption. The appeal against conviction was therefore dismissed.
This is what I wrote in 2006:
[originally published on 12 January 2006]
The practice of placing large display advertisements on agricultural trailers or other vehicles close to a motorway or other road has been the subject of mounting controversy recently. It even formed part of the plot of ‘Heartbeat’ recently (along with arson, criminal damage and other everyday incidents of country life).
If anyone really thinks they can get away with displaying adverts in this way, then they clearly haven’t read the Control of Advertisements Regulations.
Whilst it is true that an advertisement displayed on a vehicle is among the classes of advertisement not requiring consent under the regulations, it is an important condition of Class C in Schedule 2 to the regulations that the vehicle is not normally employed except as a moving vehicle and also that it is not used principally for the display of advertisements.
What the draftsman of the Regulations clearly had in mind is that a trader such as ‘J. Prescott, Pantomime Horses and Theatrical Properties’ should be able to advertise his business on his van, but the regulations were never intended to permit (and do not have the effect of permitting) the current practice of stationing farm trailers or other vehicles in fields with advertisements on them, even on a purely temporary basis.
Admittedly, that still leaves some scope for legal quibbles where it is argued that the vehicle is one which is normally employed as a moving vehicle and that it is not normally used principally for the display of advertisements, but where a trailer has been left in the same position for some time with an advertisement mounted on it, magistrates would be likely in such circumstances to treat with scepticism a defence based on Class C of Schedule 2.
Generally speaking, the display of such advertisements would not have deemed consent as temporary advertisements either. Only a limited category of miscellaneous temporary advertisements are granted deemed consent under Class 3 in Schedule 3. Such advertisements are confined to the sale or letting of the property itself, the sale of goods or livestock on the land where they are situated or where the sale is to take place (but not including regular auction grounds) and an advertisement of current building work on the land. There is also deemed consent for an advertisement for a travelling circus or fair. Needless to say, all these deemed consents are hedged around with detailed conditions, including limitations as to number and size, etc.
It is a slight mystery as to why so many LPAs seem to have been under the impression that they could not prevent the display of general advertising on farm trailers and the like. Maybe a few well-publicised prosecutions would shatter any illusions that the advertisers might have as to their right to display these advertisements.
© MARTIN H GOODALL