Unopposed Bill Committee Minutes of Evidence

Sections 460-479

London Local Authorities Bill [HL]

Tuesday 18 February 2003

460. MR LEWIS: My Lord, the borough councils have powers to control the posting of advertisements in their area, and their powers are contained in sections 224 and 225 of the Town and Country Planning Act 1990 and regulations made under section 220 of that Act. You have both sections 224 and 225 in your bundle, which I ask you to turn to as document 4A, the first document behind tab number 4.

461. 4A is section 224 and 225 and 4B is section 10 of the London Local Authorities Act 1995, which itself applies section 225 differently in London from anywhere else in the country. So section 225 has already been applied so that it is different, and we are now trying to seek to apply one provision in section 224 differently in London.

462. If you look at section 224, my Lord, you will see that under section 224(3), if any person displays an advertisement in contravention of the advertisement regulations he shall be guilty of an offence and liable on summary conviction to a fine of such amount as may be prescribed not exceeding level 3 and, in the case of a continuing offence, one tenth of level 3 for each day during which the offence continues after his conviction.

463. Under section 224(4) it says a person shall be deemed to display an advertisement for the purposes of subsection (3) if (a) he is the owner or occupier of the land on which the advertisement is displayed or (b) the advertisement gives publicity to his goods, trade, business or other concerns. So it is not just the chap who posted it up, it is also the person who is gaining benefit from the poster who may be liable to conviction.

464. The crucial provision as far as Clause 33 of the Bill is concerned then follows. Subsection 224(5) provides that a person shall not be guilty of an offence under subsection (3) by reason only - (a) of his being the owner or occupier of the land on which an advertisement is displayed, or (b) of his goods, trade, business or other concerns being given publicity by the advertisement, if he proves that it was displayed without his knowledge or consent.

465. In the 1993 cases of Edmonds v Merton LBC and Tyndall v Merton LBC, (both of which you have reports of in your bundle, but I will not ask you to turn to them at the moment) the High Court held that the words "knowledge" and "consent" had to be construed disjunctively. So in that case, where the council had told the defendants about the existence of the posters and, presumably, asked them to remove them (establishing knowledge), it remained open to the defendants to say in their defence that the posters were put up without their consent.

466. The judgment is not criticised. The word "or" between "knowledge" and "consent" could hardly be read as meaning "and". What the effect of the judgment is, however, in the view of the Promoters, is to reverse completely the intended effect of the legislation. What cannot be disputed is that section 224 is intended to ensure that it is not just the person who physically puts up a fly poster unlawfully who should be punished. It is intended to catch those who allow their property to be used for posting to be caught (whether or not they make a profit from it) and, also, more importantly, to catch those who are given publicity by the poster. It is quite easy for a council to prove that the defendant in such a case has knowledge of the offence because the council can simply tell him and keep a record. What is not so easy to prove is that the person consented to the posting of the advertisement.

467. What councils have found is that canny advertisers mark the posters with the words "not to be flyposted". In such cases it would be almost impossible to secure a conviction, and so the council finds that the person putting the poster up (if he is caught in the act) is the only possible defendant. I do have a photograph of one example where that has actually happened. I will just pass that round. (Photograph handed to the Committee) That was provided by Lewisham. So, my Lord, you see the problem that we have, and it is a problem which is also recognised by the Government because they have, in turn, produced a consultation which is contained in your bundle at 4F.

468. In particular, if I can turn your attention to the Acts which I have a horrible feeling may not be in your bundle - I can hand this round. (Document handed to the Committee) My Lord, the Government commissioned a report from Arup Economics & Planning about the way in which the flyposting legislation could be changed. If you look at Annex A, their recommendation 2 says "Amendment to section 224 (5) so that the test of "took all reasonable precautions and exercised all due diligence to avoid the commission of the offence" is used instead of the present "knowledge or consent" language."

469. In a news release which you have at 4G, my Lord, if you turn to page 6 of 7 (looking at the top heading) and paragraph 45, you will see "Arup Economic & Planning's report examined the practice of flyposting and the response by LPAs and other enforcement agencies. It made a number of specific recommendations for changes to existing legislation and for revised/updated guidance to LPAs in the form of a Good Practice Guide. We propose to adopt the following recommendations: 1 amendment to section 224(5) of the Town and Country Planning Act 1990 so that the test of "took all reasonable precautions and exercised all due diligence to avoid the commission of the offence" is used instead of the present "knowledge or consent" language."

470. So there is a demonstration there that the Government has sympathy with what we are proposing, and I think we have ascertained that today. We are left now with the question of how the alternative defence should be drafted. As I mentioned, that needs further discussion with the Department, but I hope that my demonstration of the need for this clause has been sufficient.

471. CHAIRMAN: Just to be clear, what you would like us to do is agree this clause for the time being as amended?

472. MR LEWIS: With the additional table of amendments, subject to any comments that Mr Saunders has on the draft.

473. CHAIRMAN: If the Government has any further comments to make they should do that when the Bill gets into the House.

474. MR LEWIS: Or before even.

475. CHAIRMAN: That is when the next opportunity for making these points would be.



476. CHAIRMAN: Is the Government happy with that?

(Mr Marshall-Camm) Yes, we are happy. I just want to reiterate that we are clearly moving towards some form of accommodation on this point, I hope, but clearly given the time-scale involved, that we have only just been able to consider the revised draft yesterday evening, we have not had the opportunity to take it to ministers. Therefore, we clearly need to go back to ministers and seek their clearance.

(The witness withdrew)

477. CHAIRMAN: Again, what I am finding interesting about today is that these things you have got down in the Bill are problems one encounters the whole time when you are out on the streets of London, and most of the flyposting notices is generally, very often, to do with the music business - whether pop concerts or records. If somebody flyposts, you say you can only, at the moment, deal with the person who is actually caught pasting the thing up on, normally, a vacant property window or something like that. Surely, if you catch him somebody has paid him to do this and you can find out who has paid him to do it and it is bound to be the promoter of the particular concert or the record star - if that is the thing. Would you like to comment on that?

478. MR BLACKWELL: The flyposters tend not to cut off their own noses to spite their faces; you can ask them, but I will not repeat the replies they give.

479. CHAIRMAN: Do you prosecute them?

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