Planning , Advertising consent , freedom of information requests

Ralph-y

Following on from the Thread

'Are parking permit machines. / screens which don’t issue a receipt legal'

which was regarding people being issued with invoices from the nice people at CEL. At St Thomas the Martyr church Upholland.

I am going to start a new thread as I think my questions will be going a bit off topic. If people disagree then I will ask for the threads to be merged.

I know I should be googling all this … but sometimes a good kind soul can save many hours of aunty G leading me astray.

So to be brief …..

Last August 2024 I started to ask if planning / advertising consent had been given for ARNP cameras / poles and the signage to accompany them

In a grade 1 listed building

I was informed that pre application advice had now been given.

the last questions I asked planning was

'Thank you for that, was the advice for advertising and or planning consent? 

and what was the date the advice was given ?

May I all so ask what advice was given? 

How do we find out when the applications are made ?

Will members of the public be-allowed to object to any applications ?  '

the reply was

'The pre app advice went out on 30th January 2025 and related to advertisement consent and Listed building consent. As I've informed  previously,  pre application  advice is not for the public domain but I can advise that it was favourable  to the ANPR camaras and associated signage being supported  should an application be made. 

If we receive an application a site notice will be displayed at the   site and you may also be notified by letter if you are an adjacent resident. Either way you would have the opportunity to put forward your objections. We are expecting an application following the pre app advice but in the event we don't receive one a decision will be made by a senior planning officer as to whether we consider it expedient to take enforcement action. However, in light of the favourable pre app advice as referred to above it is unlikely that further action would be taken in this case.'

So I feel I need to brush up on advertising and planning consent rules and regs. And probably freedom of information requests.

So if any one would like to suggest some 'light' reading for me to peruse I would be very grateful

If more information is needed please ask.

DullGreyGuy

Why do you think FoI is relevant? Planning applications are public record so FoI isnt required. 

Ralph-y

I have been quoted that verbal pre application advice is not for the public record

"As I've informed  previously,  pre application  advice is not for the public domain"

and some of the time lines .... to my untrained eye seem a little suspect

Ralph-y

so a week passes bye ....

I have struggled  to find what I am after    I am not the best at reading government 'legalese'

but I have had a good google ....

as for the freedom of information request ... I have not found if I can request information given verbally by the council to the church or not. 

GrannyKate

FOIA and EIR relate to information held by a public body.  Planning applications are subject to FOIA and EIR but as they are already available to the public a request under FOIA for planning applications would receive the response that the information was already in the public domain.  This is correct.  Pre-application information may still be held but not published and a request for this is perfectly valid under FOIA although it may be refused under a specific exemption.  If the council intend not to release the information to you they have to tell you why and what exemption they are relying on.  Below is a statement from another council's site ( W Berks I think) which may explain this better.

Environmental Information Regulations 2004 / Freedom of information Act 2000

Pre-application enquiries, together with any response made by the Council, will not be made

available for public inspection and applicants may confirm in writing to us that information

provided is commercially sensitive.

However, if the Local Planning Authority receives a request, under the Environmental

Information Regulations (EIR) or Freedom of Information Act (FOI), to disclose information

relating to pre-application enquiries they are obliged to do so unless the information is

deemed exempt under the Act.

Information can only be withheld under EIR or FoI if the information falls under one of the

exceptions (EIR) or exemptions (FOI) set out in legislation. For certain pre-application issues

the applicant would be advised to complete the commercially sensitive checklist that should

set out the reasons why, and for how long, they feel any information relating to the case

needs to remain confidential. We will consult with the applicants should we receive a request

before reaching a final decision on the request. However, whilst we will take account of these

views, the final decision on whether the information should be provided or withheld rests with the council. 

Ralph-y

Thanks for that ...

OK nearly done with my FOI request ..... it has been commented on a few times on the forum that advertising consent can not be granted retrospectively ..... my local panning office seam to be saying it is allowed ?

comments

Fruitcake

I've got some links and posts saved in my Favourites concerning Planning Permission and Advertising Consent, so I will dig them out for you.

The main points are: -

Planning permission is needed for pole-mounted ANPR scameras, but not if they are wall mounted (I think). Planning permission can be retrospectively approved.

Advertising consent is needed for signs (with some exceptions) greater than 0.3 m². Not having it is a breach of para 12 of Sch 4 of the PoFA, and a criminal offence, but only the council can bring a prosecution.
It cannot (should not) be approved retrospectively, yet some councils do. 
Exceptions include general information signs such as a business name, directions, or Entrance/Exit etcetera.

With regards to ANPR scameras, scamera cars/vans, or using CCTV to obtain VRMs (such as the scamera at the notorious pedestrian crossing at Bristol Airport) is covered by,

Amended Surveillance Camera Code of Practice (accessible version) - GOV.UK

I would think that it should also apply to non-approved hand-held devices used to obtain (the fictitious) MNPR images.

Fruitcake

As well as informing a motorist of the parking contract Ts and Cs, signs also act as the fair processing notice under DPA.
No fair processing notice theoretically means no getting details from DVLA, but we know that never stops personal data being sold and processed.

Thanks to poster @Marktheshark for the following.

Written CONSENT is needed under the Town and Country Planning Act 1990 section 222 + 2007 section 225 amendment for permission to erect advertising signs.
Consent cannot be retrospectively given and conspiracy with the advertiser to do so is misconduct in public office.

Failure to obtain consent is a criminal offence and failure to enforce the criminal offence is also misconduct in public office.

If you are to complain, make sure you inform the officer dealing at the council you expect the legislation to be followed to the letter of the law.

Offering a parking service conveyed by signs is advertising a genuine offer.

Parking eye went to great lengths at the supreme court to insist they were making a genuine offer. UKSC 2015/0116

Both The landowner and advertiser are jointly and severely liable for the offence.

Thanks to @fisherjim for this Government guide for advertisers and advertising consent.

https://www.google.co.uk/url?sa=t&source=web&rct=j&url=https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/11499/326679.pdf&ved=0ahUKEwip0L_h79fQAhVjLcAKHRp-CzEQFghGMAI&usg=AFQjCNGyTT4ygA7PghW28MI1iCyPP0ZC_g

Thanks to @Nigel_Byrom for this confirming that statute law cannot being retrospectively applied,

There are two House of Lords judgments that may assist : 1) Kerr v. Marquis of Ailsa [1854]
UKHL 1_Macqueen_736, where the Lord Chancellor held : ".....unless there be something in the language, context, or objects of an Act of Parliament showing a contrary intention, the duty and the
practice of Courts of justice is to presume, in conformity with the adage of Lord Coke, that the
legislature enacts prospectively and not retrospectively." and 2) Wilson & Ors v. Secretary of
State for Trade and Industry [2003] UKHL 40, where at 186 is stated : "At common law there is
a presumption that a statute does not have "retrospective" effect."

Then in Maxwell on The Interpretation of Statutes, 12th ed (1969), p 215 is the oft-quoted:
".....It is a fundamental rule of English law that no statute shall be construed to have a retrospective
operation unless such a construction appears very clearly in the terms of the Act, or arises by
necessary and distinct implication."

More to follow.

Fruitcake

Thanks to @Timothea for this,

The relevant legislation is The Town and Country Planning (Control of Advertisements) (England) Regulations 2007, which refers to the Town and Country Planning Act 1990. Private parking signage is not listed under any exemption in the 2007 Regulations, so it requires advertising consent.

Local Authorities rarely, if ever, prosecute offenders over the failure to obtain advertising consent, but they can use the threat of prosecution to force offenders to comply. However, as it is a crime, advertising consent cannot be granted retrospectively.

There is a legal doctrine, known as ex turpi causa non oritur actio, that means a claimant will be unable to pursue a legal remedy if it arises in connection with his own illegal act. Some would argue that offering a contract based on illegal signage clearly makes the contract unenforceable. As far as I am aware, this has not been tested in court in relation to parking on private land. This legal doctrine is very old and rarely used, so District Judges are likely to dismiss such an argument out of hand, because it's too difficult.

Advertising consent, where it is needed, can be 'express' or 'deemed'. Express consent is when an application is made to and granted by the Local Authority. Deemed consent is automatically granted to advertisements that:

1. are in relation to the land or building on which they are displayed;
2. do not exceed 0.3 square metres in area;
3. are not located higher than 4.6 metres above ground level; and
4. are not illuminated.

Thanks to RobinofLoxley for this,

There is also another aspect of the 'advertising consent' for signs issue that comes into play.
In the Beavis case that PPC's are so fond of reminding us of, the Supreme Court judges commented on the importance of adhering to the BPA's Code of Practice.

"And, while the Code of Practice is not a contractual document, it is in practice binding on the operator since its existence and observance is a condition of his ability to obtain details of the registered keeper from the DVLA. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced."


I think that's everything I have on this subject.

Ralph-y

thanks .......... looking forward to use some / all of that.

I am going to send the FOI Mon/Tue , and then wait to see if the planing dept dig the hole a bit deeper

Ralph-y

OK so after the full 20 working days wait  ... I received this 

 

Thank you for your email of 13th March 2025,  where you requested since January 2024,  all information that the Council hold regarding the church or church agents requests for planning / advertising consent for the new car park off the top of School Lane and the old car park  off the lower part of School Lane.

 

1. Specifically what information was requested, both written and verbal and what dates did the requests occur.

 

1. What advice did the West Lancs Planning Department give , again both written and verbally  and what dates did this advice occur?

 

1. Where  any particular comments or views sort, regarding the fact that this building is a grade 1 listed building, made by the planning department?

 

After careful consideration,  We have decided to withhold the requested Planning information (Q1, 2 & 3 above) on the grounds that it pertains to pre-application planning advice, which is considered confidential and commercially sensitive. Our decision is based on the following provisions of the Environmental Information Regulations 2004 (EIR):

 

Regulation 12(5)(f): This regulation allows for the withholding of information where its disclosure would adversely affect the interests of the person who provided the information, under the following conditions:

 

• The provider was not under, and could not be put under, any legal obligation to supply it to the public authority.
• The provider did not supply it in circumstances such that the public authority is entitled, apart from these Regulations, to disclose it.
• The provider has not consented to its disclosure.

 

In this case, the pre-application submissions were made voluntarily, with an expectation of confidentiality. There is no statutory requirement for the provider to engage in the pre-application process, and the provider has not consented to the release of this information.

 

Regulation 12(5)(d): This regulation allows for the withholding of information where its disclosure would adversely affect the confidentiality of the proceedings of the public authority, where such confidentiality is provided by law. The pre-application process at West Lancashire Borough Council represents a formal procedure and is considered confidential under common law principles and duties of confidence.

 

Regulation 12(5)(e): This regulation allows for the withholding of information where its disclosure would adversely affect the confidentiality of commercial or industrial information, where such confidentiality is provided by law to protect a legitimate economic interest.  Disclosure of the pre-application submissions could harm the commercial interests of the applicant, who operates in a competitive sector.

 

Public Interest Test:

 

Factors supporting disclosure E.g.

 

• Under 12 (2) of EIR, there is a general presumption in favour of disclosure.
• Disclosure supports transparency, making clear how authorities deliver services, spend money and make decisions.
• Disclosure would assist the public's understanding of what is being considered by a Local Planning Authority at any point in time.

 

Factors supporting non-disclosure E.g.

 

• The pre-application enquiries have not proceeded at this point to a formal planning application.  A later planning application would afford interested third parties the right to make representations which the Local Planning Authority must then take into account.
• The pre application enquiry/enquiries is seeking comment not just on the acceptability of proposals but also seeks to ensure that development efficiencies are achieved at the earliest stage, potentially saving time and money with planning applications.  Reduced engagement with the pre-application process will typically give rise to greater cost and time spent.
• The pre-application enquiry/enquiries have been submitted with the expectation that the Council would protect confidentiality.
• The pre-application requester is expressly objecting to the disclosure of the information.
• Early disclosure of information relating to a commercial concern could alert commercial competitors.
• The Council's ability to carry out a pre-application planning advice service is dependent on the ability to offer the service confidentially so that confidence is maintained throughout for all seeking to use it.

 

Conclusion:

The relevant exemptions set out by Regulations 12(5) (d), (e) and (f) of the Environmental Information Regulations can be applied in this instance and the information is therefore withheld.

 

The applicant on this occasion entered into the pre-application engagement process voluntarily, with the understanding that the details would be treated confidentially. It is considered that disclosing this information could negatively impact their commercial interests.

So I need to digest and understand , then compare to the excellent information I had been given earlier in the thread ...

and finally  ......

1. What is the planning dept. position on retrospective advertising consent?

Advertisement consent will be granted if the advertisement does not cause significant harm or disruption to the environment or local community, or any harm to highway safety. However, if the advertisement has been erected without consent, the planning department may seek to impose conditions or enforce removal if the signage violates planning guidelines.