'(7) Without prejudice to the generality of subsections (3) and (4), a person shall be deemed to display or cause to be displayed a placard or poster for the purposes of those subsections except when the placard or poster is displayed on a hoarding or other structure designed for the display of advertisements.'.
The amendment deals with the problem of over-posting, which has been made clear to several members of the Committee by Westminster city council, although I am sure that it is not only council to have done so. It has provided some interesting statistics. The difficulty is that if the law allows that something can either be removed or obliterated, obliterating can be taken to mean putting another poster over the top of the existing one, so when a council serves an enforcement notice in respect of a poster, the fly-poster can get out of it by posting another on top. To give some idea of the scale, Westminster city council say that in 2002
'''over-posting' negated enforcement of 82 per cent. of the notices served''.
In 2003, it negated 92 per cent. of the notices and in 2004 it negated 89 per cent.
Clearly, the Government do not intend to allow people to get round legislation in such a way. Removing the words ''or obliterate'' would force somebody to remove the poster. If the Government are not minded to accept this amendment, there is another option, which is to change the section so that the local authority is given the decision whether to ask for the poster's removal or its obliteration. I understand that that approach may be taken in the London local authorities Bill. It may be sensible to copy the approach used there, if the Minister is not minded to remove the words ''or obliterate'' from this Bill.
The second amendment, to which I and my hon. Friend the Member for Guildford have put our names, was suggested by the Outdoor Advertising Association of Great Britain Ltd., which has pointed out that the addition would bring the clause into line with section 10 of the London Local Authorities Act 1995. Apparently, when DEFRA consulted on the proposed Bill, that part was included but it has not been included in the published Bill. It has the effect of sorting out potential ambiguities concerning planning consent for poster sites and the argument about whether they have express or deemed planning consent. Given that the Minister is going to look into the other potential problem of definition, perhaps he could look at the matter mentioned in the amendment and see whether there is a problem, or reassure us that the provision has been found not to be needed. As I say, amendment is exactly in line with section 10 of the 1995 Act and it would make this Bill appear in the same form.
I was interested to see that we have gained the support of the hon. Members for Ludlow and for Guildford. I read with interest the hon. Gentleman's entry on the Register of Members' Interests, which states that he enjoys commission from sales of timber products on behalf of Traditional Products Ltd. Clearly, he has some commitment to sustainable development.
The hon. Lady obviously has not read the most recent version, because that entry has been removed. I no longer receive any commission.
I think that the hon. Gentleman will find that the latest version has not been changed. I hope that what he says does not mean that his commitment to sustainable development has been weakened. Nevertheless, I am delighted to have the support of the Liberal Democrats.
The hon. Member for Ludlow was kind enough to mention our attention to the problem of over-posting in his remarks on amendment No. 61, which deals with the issue. It is a real problem and the cost to local authorities of unlawful advertising should not be underestimated. The Government's regulatory impact assessment states that the total implied cost to local authorities is £7.6 million. I am not sure whether that figure includes London, but it is considerable. It is incumbent on the Government to state whether they are satisfied that the problem of over-posting will be resolved in the way proposed.
We are concerned about the question dealt with by our amendment's statement that
''a person shall be deemed to display or cause to be displayed a placard or poster . . . except when the placard or poster is displayed on a hoarding or other structure designed for the display of advertisements''.
My hon. Friend the Member for Ribble Valley referred earlier to the problem of vehicles, particularly those on agricultural land, which were never intended for the purpose in question. Perhaps the Minister will provide some clarification.
Finally, does the Minister have in mind only fixed displays of posters, or moving hoardings as well? They can entail difficulties.
I am grateful for the opportunity to respond, although in view of the source of the remarks made by the hon. Member for Ludlow I am tempted to table an amendment to create a penalty for adding to litter in the Palace of Westminster by distributing material—presumably not political and certainly not religious—from Westminster city council.
I must resist the amendments, for several reasons. Amendment No. 61 would have no effect. Clause 34 enables a local planning authority to recover its costs under section 225(1) of the Town and Country Planning Act 1990 for removing or obliterating an illegally displayed placard or poster. Removing the word ''obliterate'' from clause 34 would not affect that ability. An amendment to the 1990 Act would be needed for that.
It is not clear to me, in any event, why the hon. Gentleman would want to inhibit a planning authority from recovering its costs from those responsible for fly-posting. If I have understood the hon. Gentleman correctly, he is concerned about the possibility of obliterating rather than removing an illegal poster. It is claimed that that can lead to abuse; for instance, a fly-poster could be obliterated with another fly-poster, but in that case the remedy is simple. The person involved can be prosecuted under section 224 of the Town and Country Planning Act 1990 for putting up a poster in contravention of regulations made under the Act.
I do not follow the logic of amendment No. 61. If an advertisement is displayed illegally, it should not matter that it is displayed alongside other, legal advertisements. The question is whether an advertisement displayed is illegal. I hope that the hon. Member for Ludlow will not press the amendment.
I think that the Minister meant amendment No. 59 when he said 61. He said that he did not understand its logic. I was persuaded that the amendment was worth tabling in order to ask why the clause is drafted differently from section 10 of the London Local Authorities Act 1995. The different may suggest that the 1995 legislation was badly drafted or contained an unnecessary section. Perhaps the Minister could confirm that, then the need for the amendment would disappear. Would he like to intervene on me to suggest that the 1995 legislation contained an unnecessary section?
I am not saying that. We are amending other legislation and sometimes that makes it a little more complicated and we have approach it in a different way. As for the precise drafting, if we are to get into the comparative exegesis of the drafting of clauses, I will have to consider both in detail and get back to the hon. Gentleman, but I am happy to give him an undertaking that I shall do that.
I thank the Minister for doing that. We have raised the relevant issues and I am glad that he has clarified what powers there are in the case of over-posting. I hope that the Minister and those assisting him will consider that in order to be certain that there is no longer a loophole, because clearly some people believe that there is. If he will also consider why the drafting is different and if he can be confident that he does not need to alter it, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
With this it will be convenient to take new clause 4—Unlawful display of advertisements—
'(1) Section 220 of the Town and Country Planning Act 1990 (c. 8) (regulations controlling display of advertisements) is amended as follows.
(2) After subsection (3) insert—
''(3A) The local planning authority must exercise its powers so as to ensure compliance with the provisions of these regulations in its area.''.'.
This is the first new clause that we have submitted. A probing amendment, it gives us the opportunity briefly to consider clause 34. We want to discuss legally placed posters, which will be excluded. I am thinking in particular of subsection (5), which states:
''Where any damage is caused to land or chattels in the exercise of the power under subsection (1) in relation to a placard or poster, compensation may be recovered by any person suffering the damage from the local planning authority exercising the power.''
The new clause is designed to probe the type of street furniture and area to which, in the Minister's view, clause 34 and this part of the Bill will relate. We are seeking to differentiate the situation in which posters are legally displayed. I know that the Minister is still in discussions, so I imagine that things are still at an exploratory stage, but perhaps he would be good enough to say whether he believes that kiosks will come under the provision.
Turning to the resource implications, we have had a fairly full discussion of the problem of over-posting, which is not removing the poster but covering it with another one. To empower the enforcement officers to deal with that will carry a substantial cost. The Minister will probably confirm that that the power is discretionary and permissive, but I wonder what will be the incentive for local authorities to implement the proposal.
I am pleased that the hon. Lady has retreated from new clause 4, which would be massively unpopular in many quarters. It seems to be designed to ensure that breaches of the control of advertisement regulations do not occur—at all, ever, in any form—and to place a duty on local planning authorities to take enforcement action in every single case in which the regulations are breached. I resist the proposal for several reasons. First, local planning authorities' enforcement powers are discretionary—the new clause would move away from that principle. Secondly, a duty to enforce in all cases, irrespective of the nature and circumstances of the breach, would put an additional and unwarranted burden on local authorities. Thirdly, it is important that local authorities can target their resources on those advertisements that cause harm or, if there is a hierarchy of harm, those which cause the most harm. I feel strongly that new clause 4 should not be in the Bill.
The hon. Lady asked what can be done to incentivise local authorities. That can be done in a variety of ways. First, the views of elected representatives in general are strongly in favour of enforcement being taken to improve the quality of the local environment. Hon. Members have a responsibility in that regard. Secondly, there is the increasing encouragement of measuring what is done by local authorities in relation to local environmental quality. As I said in a previous sitting, the third ECAMS report will shortly be published, from which we will be able to see what progress has been made over a three-year period. By that means, and through the best value indicators, especially performance indicator 199, with which I am sure that hon. Members are intimately familiar, we are getting to the point at which local authorities are being held to account because what they do is measured. It is then up to local representatives to ask whether they are satisfied with the performance and its improvement over time.
The clause amends section 225(3) of the Town and Country Planning Act 1990 to include a cost-recovery provision to enable local planning authorities to recoup the cost of removing posters. That, in itself, is surely an encouragement to local authorities to undertake the work. The costs of removal are recoverable from the person who displayed the poster or caused it to be displayed, or, if they cannot be identified, from the person whose goods, services or concerns are publicised. To protect the rights of property owners and those advertising legally, there is an additional provision in the clause relating to compensation for the damage, causes and consequence of the removal process and/or for the removal of a poster that was displayed legitimately.
The clause also gives local planning authorities rights of entry to occupied and unoccupied land in order to remove unlawful posters. As we found in the consultation period, those measures will be popular and effective. I resist new clause 4, but commend clause stand part.
Something that neither he nor I had considered is whether a local authority will have to take out costly and additional indemnity if they might be sued by a resident or a utility company when it is alleged that damage has been caused to their property from the removal of a poster.
I confess that my knowledge may be slightly out of date, but I believe a local authority has the choice of insuring or carrying the indemnity within its own finances. Unless things are changed, it has that choice, depending on what it tends to do. The best approach would be through best practice and reducing the likelihood of any liability arising.
The Minister will appreciate that the most significant and pertinent point that I made was that the resources that will be required for the recovery of the costs are disproportionate to the benefits when the costs are recovered.
Question put and agreed to.
Clause 34 ordered to stand part of the Bill.
Clause 35 ordered to stand part of the Bill.