NIERUCHOMOŚCI C.H.Beck 9/2024
Alicja Slawinska
SELECTED LEGAL ASPECTS OF ADVERTISING MEDIA IN PUBLIC SPACE
ESSENCE AND LEGAL GENESIS OF ADVERTISING CARRIERS
Advertising media in public space are colloquially known as outdoor (external) advertising media, which are a common phenomenon in urban settings. They play an important role in promoting, advertising and informing about various business initiatives. Due to their user-friendly form and customizability, they are frequently used solutions in the urban landscape. According to the position of the Supreme Administrative Court, “Any flat surface used for displaying an advertisement, together with its structural elements and fastenings, is considered an advertising board regardless of how many information carriers are located on a single structure (carrier, pole, leg). “1 The legislator has not created a single universal legal definition of advertising boards, which, depending on the facts and the building structure used, qualify as structures, advertising devices or objects of small architecture. Therefore, the fundamental legal acts in further consideration of the legal aspects of advertising media in public space will be the Law of July 7, 1994. – Construction Law2 (“PrBud”), the Act of March 21, 1985 on Public Roads3 (“u.d.p.”) and the legal acts talking about advertising or spatial planning. In today’s world, large-format advertisements are one of the key elements of the urban landscape and come in many forms, i.e. billboards or banners, freestanding advertising boards, outdoor advertising media, large-format nets, store neon signs, utility screens, etc. This article is mainly devoted to the subject of advertising media, billboards or advertising devices and the accompanying legal nuances in public space.
LEGAL STATUS OF ADVERTISING CARRIERS
The installation of advertising media is subject to the regulations of PrBud with regard to the qualification of a construction object and the establishment of the administrative procedure, since the omission of the administrative procedure may result in arbitrary construction. The provisions of PrBud normalize the rules for the installation of two types of advertising devices: (i) advertising media permanently attached to the ground qualified as construction within the meaning of Article 3 para. 3 of PrBud, and (ii) billboards and advertising devices within the meaning of Article 29, paragraph 3, item. 3c of PrBud. The first case corresponds to the general principle operating in the construction sector, according to which construction work can be performed on the basis of a final administrative decision. On the other hand, the installation of advertising boards and devices not permanently attached to the ground, with the exception of luminous and illuminated advertisements located outside built-up areas within the meaning of traffic regulations – by way of exception to the rule – can be carried out on the basis of a simpler procedure in the form of a notification institution provided for in PrBud. In practice, the siting of billboards or other banners without the requirement of a building permit should be approached with a fair amount of caution. “This is because in the jurisprudence of the administrative courts, an opinion has developed that the term “installation” contained in the above-mentioned provision refers to the performance of construction works involving the attachment (connection, joining) of an element to an already existing supporting structure. Installation of advertising equipment within the meaning of this provision does not include the construction of a new object, in a new place, but includes only such construction work, which is not construction within the meaning of Article 3(6) of the Construction Law. “1 As a result, the use of the institution of notification in the procedure for the installation of advertising media should be a derogation from the general rule, and the provisions in this regard and the accompanying doubts can in no way be interpreted according to an expansive interpretation.
The key criterion distinguishing the application of the two legal variants to large-format advertisements continues to be the so-called permanent connection to the ground of the installed device. The present issue requires a thorough examination and determination of whether the location is permanent enough to resist possible factors that could damage the building structure; with the verification of ordinary and natural external factors such as gusts of wind rather than extraordinary events, i.e. attack by a war tank. As a result, the parameters (dimensions) of the device, the materials and construction technology used, weight, etc. are important. The analysis is to check whether the structure in the form of an advertising carrier is stable and whether it would be possible to change the location of the advertising facility without altering or damaging its building structure. According to the thesis of the judgment of the Regional Administrative Court in Bialystok on March 9, 2023. “The way in which the structure is fixed, its size, weight, and the type of materials used clearly indicate that the investor’s intention was to stabilize the structure and connect it to the ground, so that its stability is not subject to external factors. The connection to the ground is stabilized in such a way that the possibility of uncontrolled change in the position of these objects or loss of contact with the ground, due to physical forces caused by the structure of the object itself, or cumulatively: its structure and the actions of nature, or possibly other external factors, is eliminated. In light of such findings, it was reasonable for the authorities to assume that the investment does not constitute an installation as referred to in Article 29(3)(3)(c) p.b., which could have been established on the basis of a notification. “1 In practice, investments of advertising media constitute construction of a building object, which is not subject to legal qualification under Article 29(2)(6) PrBud. 6 PrBud.
ASPECTS OF SPATIAL PLANNING IN THE BACKGROUND – ADVERTISING RESOLUTION
The above-described procedure for the activity of qualifying the installation of an advertising medium through the prism of the building structure used, is one of several key aspects preceding the proper foundation of the device in public space. An investor bearing the intention to install an advertising billboard in the urban landscape should orient himself and examine in detail the spatial conditions of the target parcel of land constituting the location of the advertising medium, in particular whether the property is covered by a local zoning plan (“MPZP”). Multi-format advertisements should be positioned in accordance with the law and the zoning plan. If it is determined that an LSDP has been enacted for a particular land, as a result, the investor should verify the intended use of the investment plot as provided for by the provisions of the local law. It may happen that the intention to install an advertising device with specified parameters and form is inconsistent with the content of the LSDP (prohibition of placing advertising billboards in the area covered by the local law act). In order to guarantee spatial order, as part of an amendment in 20151, in Article 37a of the Act of March 27, 2003 on spatial planning and development2 (“u.p.z.p.”), the legislator gave municipalities the power to form a policy on the placement of small architecture objects, billboards and advertising devices in the form of a so-called landscape or advertising resolution. It is worth noting that the commented legal act in the form of u.p.z.p. in Art. 2 par. 16a, 16b, 16c and 16d contain independent definitions accompanying the advertising industry:
16a) “advertising” – should be understood as dissemination in any visual form of information promoting persons, enterprises, goods, services, enterprises or social movements;
16b) “billboard” – shall be understood as a tangible object intended or used for the display of advertising, together with its structural elements and fastenings, with a flat surface for the display of advertising, in particular, an advertising banner, advertising affixed to the windows of buildings and advertising placed on scaffolding, fencing or construction site equipment, excluding small everyday objects used for their intended purpose;
16c) “advertising device” – shall be understood as a tangible object intended or used for the display of advertising, together with its structural elements and fastenings, other than an advertising billboard, excluding small items of everyday use used for their intended purpose;
16d) “signboard” – shall be understood as a billboard or advertising device informing of the activity conducted on the property on which this billboard or advertising device is located.
Landscape resolutions focus on regulating the placement of advertising or other visual elements in the urban environment with aesthetic value. The primary task of a landscape or advertising resolution is to protect residents or users from excessive sensory stimulation in public space – “The landscape resolution was adopted in accordance with the procedure and principles set forth in the provisions of Article 37a (1) of the Law on Spatial Planning and Development, which authorize the municipal council to establish, in the form of a resolution, the principles and conditions for the location of small architectural objects, billboards and advertising devices and fences, their dimensions, quality standards and the types of construction materials from which they can be made. The purpose of the above-mentioned local law act is to organize public space, and the regulations adopted in the A.P.Z.P. regarding this resolution in fact introduce the primacy of landscape protection. At the same time, the provisions of the Act do not provide for an obligation to adopt a landscape resolution – it is of an optional nature. “1 In the case of real estate not covered by the LSDP, investors intending to install billboards should apply for a decision on development conditions or a decision on the location of a public purpose investment as institutions provided for in the A.p.z.p. The sanctioning tool of a municipality to enforce its authority in the above-described area is an administrative (monetary) penalty for the period of non-compliance of a sited advertisement with generally applicable laws.
CONSERVATION PROTECTION AND REGISTER OF MONUMENTS
Monuments occur in movable and immovable form, including buildings, cemeteries, historical urban layouts or cultural landscapes. Pursuant to Article 118 of the Act of July 23, 2003 on the protection and care of historical monuments1, whoever, without permission, places a technical device, an advertising board or device, as defined in the u.p.z.p., or an inscription on a monument entered in the register, shall be subject to the penalty of restriction of liberty or a fine. The described act in the form of a misdemeanor is intentional and has the effect of changing the appearance of the monument; however, there does not have to be damage to the building at all to qualify the action as unlawful. Tougher sanctions in the form of qualifying the described behavior as a misdemeanor is the legislator’s response to the arbitrariness in signaling the business activities carried out by entrepreneurs. In addition, the perpetrator of the offence in question can be not only the owner, user or entity holding title to the monument, but any person who fulfills the characteristics of a criminal act. In this sense, the introduced legal change should be evaluated positively, as it more effectively protects urban space from the tarnishing of key objects, i.e. monuments entered in the register of monuments.
An investor intending to install a billboard or advertising device on a monument is required to apply to the Provincial Historic Preservation Officer for a permit before starting any work or works, attaching a statement of the right to use a movable monument entered in the register of monuments. If a permit is issued by an administrative body, the applicant must expect that this permit will be subject to additional provisions or obligations due to the specifics of the monument. “The decision on the subject of permission to place a billboard on a monument, issued pursuant to Article 36(1)(10) of the 2003 Law on the Protection and Care of Monuments, like decisions on permission for activities listed in other provisions of Article 36(1), is not discretionary in nature, with the understanding of discretion as a freedom granted to the authority to choose consequences. “1 In addition, the administrative decision in question is not a confirmation of the compliance of the construction intention with other provisions of the law, including advertising resolutions (the content of the historic preservation permit focuses on determining whether signs or other advertising devices can be placed on them due to the nature of the monuments). In the case of historic preservation covering the historic spatial layout of the city in its entirety, the location of an advertising billboard on a building that is part of this spatial layout requires each time a permit from the historic preservationist.
AGREEMENTS WITH THE PUBLIC ROAD MANAGER
In the advertising industry sector, the location of a billboard is a key element that sometimes determines the effectiveness of a business initiative’s advertising campaign. The location of advertising media next to a public road involves an additional procedure in the form of obtaining the agreement of the public road manager and paying an appropriate fee on pain of a fine. According to the wording of Article 4 pt. 1 of the aforementioned u.d.p., the definition of a road lane is understood as land separated by demarcation lines, together with the space above and below its surface, in which a road is or will be located. It is clear from the construction of the sentence that a road lane is a broader concept than a road, which is the main element of a road lane. As a result, the road lane consists of the road, structures and technical facilities related to the conduct of traffic. In turn, according to the wording of Article 4 para. 23 u.d.p. and the edited legal definition, advertising is understood as:
advertisement – a billboard or advertising device placed in the field of vision of a road user, within the meaning of Article 2 (16b) and (16c) of the Act of March 27, 2003 on Spatial Planning and Development (Journal of Laws of 2023, item 977, as amended), as well as any other carrier of visual information, including its structural elements and fastenings, which is not a road sign, referred to in the regulations issued pursuant to Article 7 of the Act of June 20, 1997. – Traffic Law (Journal of Laws of 2023, item 1047, as amended), a sign erected by a municipality informing about facilities located along the road, including public facilities, a sign informing about a form of monument protection, or a sign informing about the name of a form of nature protection within the meaning of Article 115 of the Law of April 16, 2004 on Nature Protection (Journal of Laws of 2023, item 1336, 1688 and 1890).
According to the thesis of the judgment of the Supreme Administrative Court of April 25, 2023. “On the basis of the Law on Public Roads, the concept of advertising has its legal definition. Under Article 4(23) of the Act, an advertisement is a billboard or advertising device placed in the field of vision of a road user, as well as any other carrier of visual information, together with its structural elements and fastenings, which is not a road sign or a sign informing about public facilities set up by a municipality. “1 According to the wording of Article 40(1) and (2) of the Public Roads Act, occupation of a road lane for purposes not related to road traffic service (so-called advertising) requires prior permission from the road manager issued by administrative decision. It should be borne in mind that a permit granted once is not permanent, for “(…) permission to locate an object not related to the road, for its lawful remaining in the road lane, requires a permit to occupy the road lane for each subsequent period of the object’s remaining in the lane, granted by the competent road manager. The competent road manager is required each time to assess whether the occupation of the road lane is still permissible and whether it will not cause damage to the road or endanger traffic safety. “2 In addition, one should keep in mind several rules or technical conditions3 applicable to the location of a billboard or advertising device next to a public road, including: (i) the observance of appropriate distances of the advertisement from the outer edge of the roadway (ii) the prohibition of the installation of advertisements in the road lane outside built-up areas, except for parking lots, and other technical aspects.
WARRANTY OF LEASE DEFECT OR INVALIDITY OF LEASE AGREEMENT?
All activities related to the installation of billboards or advertising devices in urban space and the related administrative procedure are accompanied by an inherent and necessary element for the investor in the form of the right to dispose of real estate intended for advertising. Many entrepreneurs install their signs or other advertising devices in various locations throughout Poland, so it is difficult to expect that each time they constitute their property or perpetual usufruct. Professional companies engaged in the installation and assembly of advertising usually lease (rent) strategic rental areas in the center of cities, sometimes also from local government units. This paragraph is devoted entirely to a concise discussion of the issues surrounding the lease (rental) of rental space dedicated to advertising, including the accompanying defects that prevent the use of the rental space as intended. The cited content is only a signaling of the notable difficulties faced, for example, by professional entities offering advertising space to potential clients (entrepreneurs). The lessor party often makes a statement in the lease (rental) agreement that the subject of the lease may be used for the installation of advertising content; alternatively, that the subject of the lease may be used for the purposes of business activities conducted by the lessee functioning in the advertising industry. In turn, the tenant’s entity, as a professional, should also take steps to verify that the subject of the lease meets the conditions and coincides with the purpose of its business activities. However, in the space in question, it is not uncommon for a conflict to arise between the parties – “The tenant can, of course, stop at obtaining the relevant statements from the landlord in this regard, but if they turned out to be untrue, and the tenant’s planned activity contradicts the permitted purpose of the premises, the tenant can be forced by the state authorities to cease operations. If the landlord misled the tenant in this regard, the tenant will have a claim against the landlord for damages, but pursuing such a claim and proving damages can be a lengthy and not easy process. ”
The above-described discrepancy between the statement of the contract lessor party and the actual state of affairs in the form of the impossibility of using the subject of the contract for the purpose of planting an advertising device (e.g., due to the content of a landscape or advertising resolution), can be legally classified (in addition to liability for damages – Article 471 of the Civil Code et seq.) as a legal defect under the warranty of the lease (rental) relationship. According to the wording of Article 664 of the Civil Code:
§ 1.If the leased thing has defects that limit its suitability for the agreed use, the lessee may demand an appropriate reduction in rent for the duration of the defects.
§ 2.If at the time of handing over to the lessee the thing had defects that prevent the use of the thing as stipulated in the agreement, or if such defects arose later, and the lessor, despite receiving notice, did not remove them in a reasonable time, or if the defects cannot be removed, the lessee may terminate the lease without notice.
§ 3. A claim for reduction of rent due to defects in the leased property, as well as the right to terminate the lease immediately, shall not be entitled to the tenant if he knew of the defects at the time of conclusion of the agreement.
Effective application of the above-mentioned provision of the law requires a thorough analysis of the facts of the case, including a determination of the status of the parties involved in the obligatory relationship (e.g., the landlord is an entity that professionally deals in leasing or real estate). Practice shows that the described behavior sometimes interested parties try to qualify as grounds for absolute nullity of the contract under Article 58 of the Civil Code, which is the most far-reaching legal effect. As a result, the aggrieved party to the lease relationship may even decide to take the matter to court, for example, by filing a lawsuit to establish the non-existence (invalidity) of the lease (rental) relationship.
SUMMARY
The large-format advertising sector is the most impressive area of the market with potential for exploitation, which has been on an upward trend for several years – “Companies, increasingly aware of the needs of the market, are placing billboards in places where they can hit the consciousness of the most desirable target group. It is not without reason that they can be seen in the most popular places, such as downtown Warsaw or on 8th Avenue, which is considered the ‘most digital’ avenue in the world. “1 A wide spectrum of industries, i.e. automotive, food, retail, cinema or sports, advertise their services using this media tool. Nowadays, advertisements are an integral part of the urban environment. In the legislative environment, one can encounter the position that landscape resolutions, which improve urban aesthetics, deserve wider implementation. From a practical perspective, the legal rationing of billboards and advertising devices requires a smooth process of unification and transparency of the law. This article briefly describes selected issues related to advertising devices, which in practice may arise on the path of regulation and installation of advertising boards or media in public spaces.
Managing Partner ALICJA SŁAWIŃSKA AS LAW FIRM
Attorney at Law Alicja Slawinska
