Clause 31 - Extension of graffiti removal notices to fly-posting

Clean Neighbourhoods and Environment Bill – in a Public Bill Committee at 4:00 pm on 20th January 2005.

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Photo of Anne McIntosh Anne McIntosh Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Transport) 4:00 pm, 20th January 2005

I beg to move amendment No. 56, in clause 31, page 28, line 20, leave out

'which is affixed without authorisation to any surface,' and insert 'affixed to any surface—

(a) without the consent of the surface owner; and

(b) without deemed or express consent under Town and Country Planning (Control of Advertisements) Regulations 1992 (as amended) or which is an advertisement to which Part II and III of the Regulations do not apply under Regulations 3(2).'.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

With this it will be convenient to discuss amendment No. 60, in clause 31, page 28, line 20, leave out from 'affixed' to end of line 21 and insert

'to any surface without authorisation of the owner of that surface.'.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Transport)

I see why the Government have provided a definition of fly-posting, but it is ambiguous. The clause states that a fly poster is an advertisement,

''announcement or direction which is affixed without authorisation to any surface,''. 

To whose authorisation does the clause refer? Surely it would be inappropriate for a council to have to authorise the use of notices on, for example, BT's telegraph poles to inform residents of local work to be undertaken in their street. The Bill builds on parts of the Town and Country Planning Act 1990 and town and country planning regulations, and the amendment seeks to expand the definition of fly-posting to include advertisements allowed by that Act but which do not require authorisation.

Without the amendment, the risk is that all advertisements, announcements and directions that have not been authorised by the council could be deemed to be fly-posting. If that were widely interpreted, it could include paid advertising in telephone kiosks. In BT's view, kiosk advertising contributes to the long-term viability of the public pay phone network. The Minister will be aware that the Department for Culture, Media and Sport is consulting on the long-term future of certain pay phones across the country, and particularly in rural areas such as the Vale of York. Therefore, it is important to me how such pay phones, which provide important local benefits, will be paid for.

The Minister will probably wish to confirm that his definition endeavours to catch fly-posting advertisements that were not allowed by the Town and Country Planning Act 1990 or the 1992 regulations, rather than advertisements not authorised by a council. BT's view is that our amendment clarifies the definition of fly-posting to include advertisements which are allowed by the 1990 Act but which do not require authorisation. Without explicit reference to the 1990 Act and the regulations, the concern is that legitimate advertisements on BT pay phones that currently do not require authorisation by the council could be considered fly-posting. BT's pay phones business is declining, and one of the revenue streams to ensure long-term viability of the network in the countryside is advertising on kiosks.

The Minister will have seen the representation from ENCAMS, his Department's charitable body. It believes that a better fly-posting definition would be that used in its own annual local environmental quality survey—it is not totally impartial about that. The definition is as follows:

''any printed material and associated remains informally or illegally fixed to any structure. It excludes formally managed and approved advertising hoardings and valid, legally placed signs and notices. It includes any size of material from small stickers up to large posters—often advertising popular music recordings, concerts and other events.''

In view of representations from ENCAMS, why did the Minister prefer his own definition?

Westminster city council raised the problem of over-posting. It is particularly pertinent in the present context.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Transport)

The hon. Gentleman will have to contain himself for a moment, if he can.

Over-posting is a particular problem in London, and it is a pertinent subject in the current context. Where there is a delay in removing posters, a second fly-poster is often put up over the first one, which creates a vicious circle; there is then a delay in removing both the first and the second posters.

Westminster city council's view is that subsection (3) does not address that. It is one of the 12 pilot authorities, and it has used the new power under the graffiti removal notices in sections 48 to 52 of the Anti-social Behaviour Act 2003. It considers that the additional means for the removal of fly-posting would be well used, but the process required for the pilot scheme is overlong and requires revision if it is to be effective.. Therefore, it requests that consideration be given to allowing the more rapid process that the city council is able to use by applying its local public service agreement stretch target. That relates particularly to the problem of over-posting.

Photo of Mr Matthew Green Mr Matthew Green Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions, Young People, Non-Departmental & Cross-Departmental Responsibilities

We have also tabled an amendment in this group, but before I talk about it, I should point out that what the hon. Lady has just spoken about is covered by amendment No. 61 to clause 34. The issue was raised with me by Westminster city council, and I am sure that the appropriate time to deal with the specific point of over-posting is when discussing clause 34.

Returning to clause 31, there is a potential difficulty with the definition of fly-posting, because it hinges on the words ''without authorisation''. We seek clarification from the Minister that ''without authorisation'' does not cover circumstances in which something has been put up with deemed, but not actual, planning consent. As the hon. Lady explained, there are a number of circumstances in which advertising—in some cases, hoardings—has deemed rather than absolute consent.

The Minister could go further. Another set of circumstances, which I do not think he intends to be covered by the legislation, in which something might be deemed to have been put up without authorisation is the use of political posters on stakeboards during elections. In many parts of the country, such as in Birmingham, councils have set up byelaws dictating when posters can go up and when they should be taken down. However, many parts of the country, particularly rural areas, do not have any local laws governing the issue, in which case, putting up a stakeboard during an election period is technically a planning offence.

Councils do not prosecute political parties because in order to prosecute, they have to give 28 days for the offence to be remedied. As an election period generally lasts for 28 days or less and political parties are good at taking posters down, councils know that it is pointless writing a letter telling them to take the posters down because they will come down at the end of the election.   However, such posters clearly do not have authorisation because they are technically a planning offence.

I am sure that the Minister does not intend that local planning authorities can issue fixed penalty notices every time a stakeboard goes up. Given that about 3,500 are used in my constituency during a typical general election, that could be a large revenue raiser for local councils. It would not just be the Liberal Democrats paying the bill, but to a large extent the Conservative party and to a smaller extent the Labour party. I hope that he will clarify that the intention is not to issue fixed penalties to political parties using stakeboards where there are no local byelaws covering their use.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

I also seek some clarification on one or two matters relating to the amendments, but I am almost compelled to say that the prospect of 3,500 fixed penalty notices being issued to the hon. Gentleman is good reason for retaining the provision and perhaps directing it towards that political party and not the party of truth and righteousness—the Conservative party.

A lot of fly-posting is done on a commercial basis. In my constituency, as in a number of rural areas, car boot sales on a Sunday are usually advertised on the Saturday night. Somebody goes around in a vehicle putting posters on lamp posts without any authorisation, and after the sale the posters generally, but not always, come down. I assume that that will be covered by the clause.

I also have a problem with the word ''affixed''. Some advertisements may be freestanding on the side of a highway and not actually fixed to a hedge or anything else. I would welcome clarification on what ''affixed'' means in this context.

Every Committee member will know about the increasingly prevalent use of advertisements on vehicles on farmland adjacent to motorways. I assume that that is not dealt with as fly-posting. Vehicles are used because they are mobile and can, in theory, be moved around, although in reality they never are. Has the Minister considered that? I can see the Minister for the Environment and Agri-environment nodding, which shows that everybody knows that this is a specific problem—and if it is not addressed at some stage it will, perhaps, get worse or will become regularised.

Photo of Mr Matthew Green Mr Matthew Green Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions, Young People, Non-Departmental & Cross-Departmental Responsibilities

Do I take it from what the hon. Gentleman is saying that he would condemn any political party that used such mobile posters, months in advance of any election?

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

I am not going to get dragged down that path, because it sounds like a huge trap.

The problem is that such advertising is currently within the law, which is why people do it. They are not putting up big billboards on farmland, per se. They have looked at the law carefully, somebody has said, ''Look at this loophole. Why don't you just shove it on to an old trailer or tractor?''—and that is what they are doing. Although the clause will not deal with that, I   assume that at some stage somebody somewhere will look at it to ensure that it does not get out of hand completely.

Talking about fly-posting, now and again when we drive around, we see banners saying, ''Happy birthday Rosie, 60 today'', and so on. Would that be covered by the Bill? It is not commercial, does not promote anything and is nothing other than somebody wishing to embarrass a close relative by saying how old they are. Mostly, such banners are taken down after a short period, too. Perhaps that will be covered under the provision on the number of days, although the ownership of the banner would be difficult to work out.

To return to the point on political banners made by the hon. Member for Ludlow (Matthew Green), it is true that in some local authorities during by-elections they are on lamp-posts all the time. There are byelaws that cover all sorts of things like that—in my local authority area there are not—and people are not allowed to put such posters up, because they would be fly-posting if they did so.

Photo of Mr Matthew Green Mr Matthew Green Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions, Young People, Non-Departmental & Cross-Departmental Responsibilities

I am not referring to posters on lamp-posts, because they might be on property on which it is illegal to post and is, perhaps, owned by the council. I am talking about posters attached to a stake in a hedge, which are used extensively in rural areas and are technically planning offences, but people get round that because of the 28-day rule.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

I welcome the hon. Gentleman's clarification on that point. A poster on a lamp-post would be covered by the legislation, but posters in hedges is another matter. We use a lot of farmland in my constituency to get posters up along major highways. Political parties are, in the main, responsible about putting posters up and taking them down, which is the most ghastly job of all and the most depressing thing after a general election, because everybody is shattered. Perhaps we will get some clarification on such posters.

When the word ''affixed'' is used in clause 31, it is

''without authorisation to any surface.''

I have already declared my interest. I own a piece of land, so I assume that I would be able to put up anything without any problems whatever, but if anyone else wanted to put something on the land in front of my shop it would be up to me to decide whether to give permission. Is that covered by the clause? There is a problem with furniture on the highways, where owners of shops or businesses want to put advertisements for a cafe, or whatever they sell, on pavements owned by the local authorities, or land owned by themselves. Some local authorities enforce measures rigidly, and with good cause, because in some cases it is to do with disabled people, those with prams and blind people getting proper access through to the highway. Will the Minister clarify whether billboards advertising particular items or services on private land adjacent to a public pavement are covered by the clause?

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs 4:30 pm, 20th January 2005

We have ranged wide on a clause that is a good deal narrower than some of the issues that have been raised. It is entirely right for members of the Committee to ask whether such issues are covered under the clause, although it is more specific than the items to which hon. Members have referred. It defines fly-posting for the purposes of defacement removal notices and is linked to the relevant services defined under the 2003 Act. The way in which the explanatory notes outline the impact of the clause might be a little simple.

As the hon. Gentleman realised, vehicles on farm land stimulated a little resonance around the Room as an issue that is coming up the agenda. However, it cannot, by any stretch of the imagination, be described as fly-posting. Environmental matters are one set of arrangements, whether fly-posting is a distraction to the highway is another and a transport issue, and permissions under the planning regulations raise yet another set of issues. I am not sure that the matter is simple to deal with, although it is easy to identify and attracts a certain measure of agreement.

Political processes have authorisation under schedule 2, class F of the Town and Country Planning (Control of Advertisements) Regulations 1992, a copy of which I carry everywhere with me and which I have in my hand at the moment. The difference in electoral material is clearly and specifically covered, not least because of the limited time to which hon. Members have referred. Advertising at election time is part of the price of democracy. Some of us have come across complications in the way in which that is regulated. Events during the Vale of Glamorgan by-election in 1989 spring to mind, as do matters with which my hon. Friend the Member for West Carmarthen and South Pembrokeshire (Mr. Ainger) will be familiar.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

In many cases, political parties find that they do not have to take down their posters because someone else has already done it for them.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

Yes, but the trouble is that it is not always done efficiently on the day or two before the end of the election, but earlier in the campaign.

As for the definition from ENCAMS to which the hon. Member for Vale of York referred, it is more of a description that is used for a statistical survey. It does not work as a legal definition, although it says what is within a definition to be able to measure the improvement or the duration of circumstances over time.

Several important points have been made about definitions. Again, we know what we intend to stop: fly-posting. We know what it looks like, but when we come to the definition, authorisation seems to be the best way in which to deal with it as it links the issue to compliance with regulations under the 1990 Act. It is clear that what we have drafted is not as explicit as that, so it caused some of the queries that have been raised during our short debate. I undertake to look further at such matters. We have already started examining them to identify whether anything needs to   be defined more clearly. I will inform members of the Committee of the outcome of those deliberations and, if necessary, I will bring forward an amendment on Report.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

I have not yet said that there will be an amendment on Report; I said that I will inform the Committee when we reach conclusions. If that is well in advance of Report, I will share my intentions with the Committee.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Transport)

Obviously, ENCAMS feels wedded to its definition. The only point to which the Minister did not respond was the representations from BT about fly-posting on its poles and in kiosks.

Photo of Alun Michael Alun Michael Minister of State (Rural Affairs), Department for Environment, Food and Rural Affairs

That is because that fits with the issue of authorisation. I hope that that helps.

Photo of Anne McIntosh Anne McIntosh Shadow Minister (Environment, Food and Rural Affairs), Shadow Minister (Transport)

Indeed. I am grateful for this little discussion; the Minister is now apprised of my concerns. I am delighted that he may be minded to bring forward an amendment. The mention of over-posting, and the decision to extend graffiti removal notices under the clause, shows recognition of what is happening. Given our thoughtful discussion, and the Minister's semi-commitment, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 ordered to stand part of the Bill.