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
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
474. MR LEWIS: Or before even.
475. CHAIRMAN: That is when the next opportunity
for making these points would be.
MR STEVEN MARSHALL-CAMM,sworn
Examined by THE COMMITTEE
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?