Advertisement control regulations — One advertisement per sale permitted without express consent — Two agents displayed “for sale” boards — Whether first agent to display board properly convicted even where ignorant of second agent’s board — Whether offence is one of absolute liability
Mr A H Porter is a partner in Whitman Porter Estate Agents. He was convicted under section 109(2) of the Town and Country Planning Act 1971 of two offences of displaying “for sale” boards without express consent and contrary to the Town and Country Planning (Control of Advertisements) Regulations 1984. The prosecutions related to the sale of two properties, the appellant being the first agent to display boards. At one property Bonsor Penningtons later displayed their board, and at the other Mann & Co did the same. It was accepted that in each case so long as only one board was displayed, this would have enjoyed deemed consent under the 1984 regulations. The Richmond-upon-Thames justices accepted the arguments of the prosecution that once a second board was erected neither board enjoyed deemed consent, as the regulations by Class III(a) authorise only one advertisement “in respect of each such sale or letting”.
The appellant appealed by way of a case stated, arguing that if only one advertisement per sale or letting is permitted, then no offence could be committed in the absence of knowledge of the facts of the offence; to be convicted, a defendant should have knowledge that by reason of the erection of a further board, no board was permitted.
Held In dismissing the appeal, and in holding that the appellant had been properly convicted by the Richmond-upon-Thames justices, the justices had been correct in holding that section 109(2) created an absolute offence. That subsection provides that “if any person displays an advertisement” he is guilty of an offence; it does not say “if any person knowingly displays an advertisement”. The limited defence provided by the proviso in section 109(3), that a person was not guilty if he could prove that the advertisement was without his knowledge or consent, was inconsistent with any general requirement of mens rea (guilty mind). Mens rea did not apply to this offence.
Terence Bergin (instructed by Axelrods, of Richmond, Surrey) appeared for the appellant; and David Lamming (instructed by Roger G Smith, of the solicitor’s department, Richmond-upon-Thames London Borough Council) appeared for the council.
