Monday, 17 January 2011
Localism Bill – Enforcement provisions (5)
Clause 106 will introduce no fewer than 10 new sections into the 1990 Act (sections 225A to 225J), thus adding substantially to the primary legislation relating to the control of advertisements. These provisions are designed to give LPAs greater powers to remedy breaches of advertisement control and also to deal with the ‘defacement’ of premises (i.e. to remove graffiti).
Section 225A will give LPAs in England power to remove structures (such as hoardings) which “in their opinion” are being used for unauthorised advertisement displays. But why in their opinion? This must surely be a matter of fact, not opinion; either the structure is being used for the display of advertisements in contravention of the Control of Advertisements Regulations or it is not. The LPA must first serve a “removal notice” (the terms of which are specified in Section 225A). The LPA will be able to recover the expenses of removal but there will be a right of compensation where in the exercise of these powers any damage is caused to land or chattels, other than damage caused to the display structure itself; or damage reasonably caused in removing the display structure.
Section 225B will give powers to LPAs who “have reason to believe” that there is a persistent problem with the display of unauthorised advertisements to serve an ‘action notice’ requiring the owner or occupier of the land to carry out reasonable measures specified in the notice to prevent or reduce the frequency of the display of unauthorised advertisements by a date (not less than 28 days) specified in the notice. There is more detail in the section which I do not propose to recite here, including a right to compensation similar to that in section 225A. Section 225C creates a right of appeal to a magistrates court against a notice under section 225B on one or more of four specified grounds.
Section 225D will apply section 225B to statutory undertakers’ operational land, but in this case the statutory undertaker may, within 28 days, serve a counter-notice on the LPA specifying alternative measures which will in the statutory undertaker’s reasonable opinion have the effect of preventing or reducing the frequency of the display of unauthorised advertisements to at least the same extent as the measures specified in the notice, and those alternative measures will then take effect in place of the measures in the LPA’s action notice.
There are further provisions in section 225J dealing with action under sections 225A, 225B and 225E which relates to the operational land of statutory undertakers.
DEFACEMENT OF PREMISES
Section 225E will introduce some slightly complex provisions, designed to remedy the ‘defacement’ of premises. This power will relate to any sign readily visible from a place to which the public have access (with certain exceptions in the case of operational land of a statutory undertaker) where the LPA consider the sign to be detrimental to the amenity of the area or offensive. This does not relate to adverts but is aimed at graffiti. The LPA may serve on the occupier of the premises a notice requiring the occupier to remove or obliterate the sign by a time specified in the notice. The LPA will have default powers to remove the sign and recover their expenses (except in certain specified circumstances). This power will be subject to a right of appeal under section 225H. Section 225F will make provision for the extension of these powers to post boxes, subject to certain conditions. Similarly, section 225G will extend these powers to bus shelters and other street furniture, again subject to certain conditions.
Under section 225H there will be a right to appeal to a magistrates' court against a notice served under section 225E on one or more of four specified grounds.
Finally, section 225I will provide for the removal of graffiti by the LPA at the owner or occupier’s request, but subject to their repaying the LPA’s expenses of doing so.
© MARTIN H GOODALL