The term 'advertisement' covers a wide range of signs and fascias, and falling foul of requirements to obtain advertisement consent could constitute a criminal offence. As such, all retailers should ensure they know what is and is not allowed, whether they are concerned with shop fronts on the high street, retail parks or shopping centres,
We have set out below 5 rules for retailers to consider so that they stay on top of the law.
1. Check whether you need to make an application for consent
Regulations provide that some advertisements are expressly excluded from the need for consent, some are automatically given deemed approval, and others must be the subject of a successful application to the relevant authority.
It is unlikely that a retailer's advertisement will fall outside the need for consent, unless it is within an enclosed space such as a shopping mall or covered shopping arcade (or in the case of certain signs displayed inside a shop).
In most other cases, it is worth checking the criteria for deemed consent. For retailers, the most frequently used categories of deemed consent will be classes 4 (illuminated advertisements on business premises, including on frontages of businesses within a retail park) and 5 (other advertisements on business premises).
Both are subject to strict limitations, including controls on what information can be displayed on the advertisements, what size the advertisements can be and where on the building they can be displayed.
Other categories might also come to the rescue, such as those allowing name plates on business premises, posters in purpose built highways structures, advertisements on forecourts or development site hoardings.
Note that the Secretary of State can direct that the deemed consent provisions do not apply in certain areas.
If an application needs to be made, it should usually be made to the local planning authority. The authority will decide the application on the grounds of amenity and public safety and can grant the consent (with or without conditions – although see point 2 below), refuse the consent or decline to determine the application if they have recently refused a similar one. Similar appeal provisions apply as with planning applications. Notably, if no decision is given within 8 weeks, an appeal against non-determination can be lodged.
As long as the advertisement complies with the relevant regulations, no planning consent is needed for the display – although if the advertisement is to be attached to a listed building, listed building consent may be needed.
2. Remember the 5 year rule
If an application is needed, any consent granted will be subject to an express or deemed condition making the consent temporary in nature. If no express time restriction is given, the consent will expire after 5 years. It can then be renewed by a fresh application, if appropriate.
That said, regulations currently give deemed consent for the continued display of advertisements for which the permitted period of express consent has expired and for which the planning authority has not forbidden any further display of that advertisement, or refused an application for its renewed display.
3. Bear in mind the standard conditions
Even if you are relying on the deemed consent provisions, be aware that such consent is given subject to 'standard conditions'.
These conditions, in summary, require that:
(a) permission to display the advertisement is obtained from the landowner (b) advertisements do not obstruct traffic signs, railway signals, or security/ speed cameras and do not endanger users of highways, railways or waterways (c) the advertisement is kept in good repair so as not to harm the visual amenity of the site (d) any hoarding or structure is kept in good repair so as not to endanger the public (e) the site is left in a good state of repair if an advertisement needs to be removed
4. Beware 'special areas of control'
Some areas are designated as Areas of Special Control of Advertisements. In these areas, there may be different criteria for deemed consent and stricter control is exercised in order to protect visual amenity. In particular, the deemed consent for illuminated advertisements under class 4 does not apply in such areas.
Care should also be taken in conservation areas, AONBs, National Parks and the Broads, where rules may differ.
5. Note the risk of a discontinuance notice
Local authorities can require advertisements with deemed consent to be removed "to remedy a substantial injury to the amenity of the locality or a danger to members of the public". Many local authorities have produced supplementary guidance on what they consider to be appropriate design in their area.