By Rosalind Prue, Solicitor, and Simon Dimmick, Partner, Planning and Environment department at Blandy & Blandy LLP
Many displays fall within the definition of an “advertisement”, including signs, placards, boards, notices, awnings, blinds, and any device which is employed wholly or partly for the purposes of advertising, an announcement or direction. Anything principally used for the purposes of advertising could fall within the definition.
Given the wide definition, it is sometimes surprising to businesses that the display of an advertisement in England will very often require “Advertisement Consent”.
Advertisement Consent is granted by the Local Planning Authority but is separate from planning permission. Planning Permission is sometimes also required.
There are, however, many exceptions to the requirement to obtain Advertisement Consent, and one of the most commonly used exception relates to adverts displayed “on or in a vehicle normally employed as a moving vehicle”. The exception applies so long as the vehicle is not “principally used for the display of advertisements”.
This exception has been used by many businesses to their advantage by parking commercial vans and other vehicles displaying adverts in prominent positions when the vehicles are not in use. However this practice was criticised in the High Court case of Tile Wise Limited v South Somerset District Council (2010), in which the extent to which advertisements on or in vehicles are exempt from planning control was clarified.
The facts of this case were unremarkable. The company owned a number of different sized vehicles which were used in the normal course of its business as delivery vehicles and for transporting personnel. Like many businesses, the vehicle which was used on any particular day depended on the requirements of the business, for example, the size of the load to be delivered, or the accessibility of the delivery site.
The vehicles which were not in use by the company on a particular day were parked on a main road approximately 100 metres from the company’s showroom, displaying an advertisement for the company. The advertisement used by the company was actually a detachable sign, and so the same sign was transferred to whichever vehicle was not being used that day.
The Court did not distinguish between a removable or detachable sign, and one which was permanently affixed to a vehicle. It was agreed that the company’s vehicles were legally parked in an area with no parking restrictions, and that all the vehicles were normally employed as moving vehicles. However, the Court also found that the vehicles were being used “principally for the display of advertisements” when they were parked in this prominent location. The advert did not, therefore, benefit from the exemption, and so advertisement consent was required for the parked vehicles.
Fortunately the Court made it clear that this did not mean that any parked vehicle displaying an advertisement would require consent. However the implication of the case is that the location where vehicles displaying adverts are parked is of great importance.
It is difficult to know when a vehicle would be parked in a prominent location simply for the sake of convenience, and when it would thought to be parked primarily for the display of advertisements. This will depend on the facts and circumstances of each case.
Business should, however, be aware that it is a criminal offence to display an advertisement which requires consent without obtaining that consent. Fines can be imposed up to £2,500, with additional fines of £250 per day if the advertisement remains in position without consent.
In addition to a fine, a Court could order that any profits which had been made as a result of the display of the advertisement may also be confiscated.
Advertisement Consent and the location where vehicles are parked should, therefore, be a real consideration for all businesses who own vehicles which are branded and so display logos or other details for the purposes of advertising.