The Full Council of the Johannesburg Metro has revised by-laws for outdoor advertising despite numerous objections by the industry, especially those related to the imposition of penalty rates and retrospective criminalisation of property owners. Promulgation is expected on 31 May 2018.
The following amendments have been effected to the final draft as a result of comments received:
- Advertising Precincts will be identified in terms of an Advertising Signage Framework. This Framework would be similar to the City’s Spatial Development Framework but only applicable to outdoor advertising and it will follow the approval of this by-law. It will also have to go through a public participation process so that all relevant stake holders can make representations in terms thereof. This Framework will also have to be approved by Council prior to it being put in operation.
- Although the tariff of charges in terms of this by-law is not determined in the by-law, it follows the approval of the by-law and such tariffs need to be published in the Provincial Gazette for public information. The tariffs need to be amended to reflect an administrative application fee when an application is submitted and then an approval fee based on the size of the advertising sign only payable after approval. Currently it is the other way around and it is regarded as unfair for applicants to be paying these exorbitant fees upfront without any guarantee that the application will be approved.
- The by-law does now make specific provision for a pre-approval process in terms of which a proposal will go through a pre-assessment procedure to, inter alia, determine what relevant documentation needs to be submitted as part of a formal application and to give an indication whether the proposal would find support should a formal application be submitted.
- Advertising signs will now be subject to a building plan approval process as well as these structures that fall within the definition of a 'building' for purposes of the National Building Regulations and Building Standards Act, 103 of 1977 (NBRA). The Building Control Officer (BCO) has in terms of section 13 of the NBRA the authority to exempt some of these advertising signs as 'minor building work' due to the size and nature of the sign and such exempted signs would then not be subject to a building plan process. Larger signs such as large gantries and what is deemed to be 'Super Billboards' will, however, not be exempted and will be subject to a building plan approval process.
- Such advertising signs exempted by the BCO as minor building work will then also not be subject to a building line relaxation process in terms of the COJ Municipal Planning by-law, 2016. For larger signs not so exempted, a building line relaxation application, if applicable, will have to be submitted for approval prior to such sign being approved and erected under this by-law.
- The by-law has now been amended so that written reasons must be provided in the same notice notifying parties of the decision. In the past it was a separate process and reasons had to be specifically requested by a particular party in writing and then the City would provide such reasons in writing. There is no need for it to be a separate process and it can be done as one process to make the process more expedient and efficient.
- The by-law has also been amended in that no third-party static advertising sign may be erected within 50 metres at traffic controlled intersections measured from the nearest traffic signal/sign. For LED/digital/electronic advertising signs, the distance is 100 metres. In the past it was measured from the centre of an intersection but this was deemed to be inadequate as some intersections are so big that when you measure 50 metres from the centre of the intersection, you find yourself still within the intersection (for example the Empire/Jan Smuts intersection).
- Provision has been made that illuminated advertising signs (which includes LED/digital electronic signs) must now comply with a certain candela per metre.
- No specific provision has been included in this by-law to regulate cell phone and other antennae on advertising structures. In terms of the Link Africa Constitutional court judgment, a section 22 license holder in terms of the Electronic Communications Act, 36 of 2005, may enter upon any private and/or public land without the land owner’s consent to exercise the rights it has under such license. It only needs to notify such land owner and such rights must be exercised with due care, respect and diligence.
- The comment that imprisonment of 20 years and a fine calculated in terms of the Adjustment of Fines Act similar to such years of imprisonment is excessive has been accepted and it has been reduced to a fine and imprisonment conducive to 10 years.
- The by-law has been amended to allow for larger signs than what is prescribed in partial- and minimum controlled areas at the sole discretion of the City but only on good cause shown.
- The by-law now also makes provision that if an advertising sign is displayed illegally on private property, then a rates penalty may be imposed in terms of the City’s Rates Policy. This Rates Penalty in terms of the Rates Policy read with the Local Government: Municipal Property Rates Act, 2004, has been tested in the courts and has been found to be lawful. Thus, all of the objections submitted arguing against it are therefore unfounded.
- The by-law makes provision that all applications as well as appeals will be dealt with on written submissions only. The argument that parties are entitled to a formal oral hearing holds no water as nobody has an absolute right to be heard formally in an oral hearing. The courts have clearly expressed themselves on this issue and have confirmed that a party is also ‘heard’ when written submissions are considered only. This is also in line with the provisions of PAJA which also makes provision for a 'hearing' based on written submissions only.
- The by-law now makes provision that advertising signs which are deemed to be erected on Council property or property that vests in the City without the prior approval of the City may be removed by the City without the necessity to obtain a court order as long as prior notice is given. The argument that this constitutes ‘self-help’ does not hold water as long as a fair and transparent process is followed including fair and reasonable notice prior to such a sign being removed. This again is in line with the provisions of PAJA.
- The by-law also makes provision that if any sign, whether on council property or on property that vests in the City or on private property has become dangerous and poses a threat to life and/or property for whatever reason; it may be removed immediately without notice and without a court order.