England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		22nd November 2005

Tuesday, 22nd November 2005

MR JUSTICE SULLIVAN:

Introduction

1. On 26th May 2004 an information was preferred by the respondent council against the appellant that on 29th March 2004 he displayed an advertisement on a property known as 7 Kedleston Road, Derby, without the consent of the council or the Secretary of State, contrary to Regulations 5 and 27 of the Town and Country Planning Act (Control of Advertisements) Regulations 1992 ("the Regulations") and section 224 of the Town and Country Planning Act 1990 ("the Act").
2. Following a hearing before District Judge Alderson on 10th and 15th November 2004, the appellant was convicted of that offence and was conditionally discharged and ordered to pay costs of £1,706. He now appeals by way of case stated against that conviction.

The facts

3. The judge found the following facts in paragraph 2 of the case stated:

"(a) At all material times the appellant was the owner of 7 Kedleston Road.

"(b) On or before 10 March 2004 the appellant had displayed a banner at 7 Kedleston Road, Derby. The banner was still on display on 29 March 2004.

"(c) The banner was approximately 2 metres by 0.85 metres in size and was tied to the front elevation of the property. It bore the words, 'Save Five Lamps' in red capital letters. Below this was the 'Derby Heart' logo and in blue lower case lettering, 'Tel: 01332 361375' and 'www.derbyheart.org.uk'.

"(d) 'Derby Heart' was the name for the Derby Heritage and Environmental Association for Residents and Traders and was a group of people with a common aim of opposing Derby City Council's 'Connecting Derby' road scheme.

"(e) The banner was an advertisement as defined by section 336 of the Town and Country Planning Act 1990.

"(f) The appellant had not been given consent to display the advertisement in accordance with the Town and Country Planning (Control of Advertisements) Regulations 1992, nor had he applied for any such consent."

Submissions before the judge

4. In paragraphs 3 and 4 the judge referred to the rival contentions as set out in the parties' skeleton arguments and supplementary skeleton arguments. In paragraph 5 she listed the cases to which she had been referred. They included the case of Westminster City Council v Brian Haw [2002] EWHC 2073, a decision of Gray J. In that case the city council had applied for an injunction under section 130 of the Highways Act 1980 and section 222 of the Local Government Act 1972 to restrain Mr Haw from obstructing the pavement in Parliament Square, opposite the House of Commons, by displaying a considerable number of placards and posters. Although we do not know the precise wording on Mr Haw's placards, in paragraph 5 of his judgment Gray J said:

"It is not necessary for me to go into detail; it suffices to say that the placards and posters criticise in trenchant terms the policy adopted by the Government towards the regime in Iraq and the effect of that policy on Iraqi citizens."

5. In order to succeed in its application the city council had to establish not merely that there had been a physical obstruction of the highway, but also that the obstruction was unlawful and unreasonable. Gray J concluded that although there was a deliberate obstruction it was lawful and reasonable.
6. During the course of the hearing the city council submitted that Mr Haw's activities amounted to the unlawful display of advertising and so could not be reasonable. Gray J dealt with this point in paragraphs 19 and 20 of his judgment as follows:

"19 ... I accept that in order to be reasonable, the activities carried out on the highway must be lawful... But does setting up political placards in Parliament Square amount to advertising within the meaning of section 224 of the Town and Country Planning Act so as to be unlawful under that section? Mr Powell [counsel instructed on behalf of the city council] relies on the definition of advertising in section 336 of the same Act. 'Advertisement' is there defined as meaning:

'any word, letter, model, sign, placard board, notice, device or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purposes of advertisement, announcement or direction.'

"In its ordinary connotation 'advertisement' applies, in my view, to material which promotes a product or service. Regulation of the display of such material appears to me to be the purpose which underlies section 224 of the Act.

"20. I am not persuaded that the defendant's placards are to be treated as advertisements, on the footing that they are either "announcements" or "directions". It does [not] appear to me that Mr Haw is announcing anything, or that he is directing anyone anywhere, or to do anything. I do not, therefore, accept that the defendant's activities in Parliament Square are unreasonable because they are unlawful."

The judge's opinion

7. Returning to the case stated, the judge set out her opinion in paragraph 6:

"In essence, the appellant made two submissions. First, that the banner did not constitute an advertisement within the context of the Regulations referred to. Second, that if it did constitute an advertisement, then his actions were lawful in the exercise of his rights of freedom of expression under Article 10 in Schedule 1 to the Human Rights Act 1998.

"The question as to whether the banner constituted an advertisement was a matter of fact for me to determine. For the purposes of the Town and Country Planning Act 1990, 'advertisement' is defined in section 336 and the relevant part states, 'any word, letter, model, sign, placard, board, notice, device or representation... employed wholly, or partly, for the purposes of advertisement, announcement, or direction...'.

"I was referred to Westminster City Council v Brian Haw. In the context of that case, the Court was asked to consider that the placards displayed by Mr Haw were unlawful advertisements under the Town and Country Planning Act 1992. Mr Justice Gray stated 'In its ordinary connotation 'advertisement' applies, in my view, to material which promotes a product or service.' In my view, Mr Justice Gray was not intending to provide an exhaustive definition of what was an advertisement. Indeed, he went on to consider whether the placards displayed by Mr Haw were 'announcements' or 'directions'. If he were determining that the legislation should be restricted to the advertising of products or services then deciding whether the placards were announcements or directions was superfluous. Mr Justice Gray in his judgement did not attempt to define when he meant by a product or service. In section 224(4) which deals with the statutory defence, there is reference to publicity for 'goods, trade, business or other concerns'. There is no indication from the Act that the phrase 'other concerns' should inevitably be limited to commercial activities and that the Act was aimed at such activities.

"This banner, quite clearly, by displaying the logo and contact details, was advertising 'Derby Heart', an association which has, as one of its aims, opposition to the City Council's road scheme. It was also a direction in that by using the words 'Save Five Lamps' it was directing people to engage in opposition to the City Council. Indeed, the appellant stated in evidence that he hoped 'every man, woman, dog and child' seeing the banner would write to the Council in protest. I also found that it was a 'direction' in that it directed people to the telephone number and website of Derby Heart. I was entirely satisfied that this banner was an advertisement for the purposes of the Town and Country Planning Act, 1990.

"The appellant had not applied for, and therefore did not have consent to display the advertisement. The offence under section 224 is one of strict liability. However, the appellant argued that his actions were lawful in the exercise of his right to freedom of expression under the Human Rights Act.

"Quite clearly, in displaying his advertisement, the appellant was expressing his views concerning the City Council's road scheme. His Article 10 rights were engaged by the Town and Country Planning Act's restrictions in this regard. However, the appropriate course of action was to have applied for consent, arguing not only the merits of being allowed to display the advertisement but also his right to freedom of expression under article 10. Had he applied for consent, the City Council would have been required to consider his article 10 rights and would have considered how to interpret the legislation in the context of those rights. Had consent been refused then he could have challenged that in the High Court. In my view his article 10 rights were not engaged by the commencement of these criminal proceedings."

The questions for the court

8. In paragraph 8 the judge posed two questions for the opinion of the court as follows:

"(a) Whether, on the evidence, I was entitled to find that this banner constituted an advertisement within the meaning of the Town and Country Planning Act 1990 and the Town and Country Planning (Control of Advertisements) Regulations 1992.

"(b) Whether, on the basis that the banner did constitute an advertisement, I was correct in determining that the commencement of the criminal proceedings did not engage the appellant's rights to freedom of expression, since he had neither applied for nor been denied consent to display the banner."

9. Before turning to the submissions of Lord Kingsland QC, on behalf of the appellant (the respondent was not represented before us), it is helpful to set the definition of advertisement in its statutory context.

The statutory context

10. Section 220(1) of the Act provides that:

"Regulations under this Act shall make provision for restricting or regulating the display of advertisements so far as appears to the Secretary of State to be expedient in the interests of amenity or public safety."

The Regulations were made under this subsection.

11. Section 221(1) provides:

"Regulations made for the purposes of section 220 may make different provision with respect to different areas, and in particular may make special provision -

(a) with respect to conservation areas..."

By virtue of section 223 planning permission is not required for the display of advertisements in accordance with the Regulations even if it involves the development of land.

12. Section 224 deals with enforcement of advertisement control:

"(1) Regulations under section 220 may make provision for enabling the local planning authority to require -

(a) the removal of any advertisement which is displayed in contravention of the regulations, or

(b) the discontinuance of the use for the display of advertisements of any site which is being so used in contravention of the regulations.

...

(3) Without prejudice to any provisions included in such regulations by virtue of subsection (1) or (2), if any person displays an advertisement in contravention of the regulations he shall be guilty of an offence and liable on summary conviction to a fine of such amount as may be prescribed, not exceeding level 3 on the standard scale and, in the case of a continuing offence, one-tenth of level 3 on the standard scale for each day during which the offence continues after conviction.

(4) Without prejudice to the generality of subsection (3), a person shall be deemed to display an advertisement for the purposes of that subsection if -

(a) he is the owner or occupier of the land on which the advertisement is displayed; or

(b) the advertisement gives publicity to his goods, trade, business or other concerns.

(5) A person shall not be guilty of an offence under subsection (3) by reason only -

(a) of his being the owner or occupier of the land on which an advertisement is displayed, or

(b) of his goods, trade, business or other concerns being given publicity by the advertisement.

If he proves that it was displayed without his knowledge or consent."

In the present case the defendant was the owner of the land on which the banner was displayed and it was not suggested that it was being displayed there without his knowledge or consent.

13. Of critical importance in this appeal, the definition of advertisement in section 336(1) is, so far as relevant:

"'advertisement' means any word, letter, model, sign, placard, board, notice, awning, blind, device or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purposes of, advertisement, announcement or direction..."

The appellant's submissions

14. Lord Kingsland submitted: (1) that the judge had erred in law in concluding that the banner displayed constituted an advertisement within the meaning of the Act; (2) if, contrary to that submission, the banner was an advertisement, the appellant was exercising his right to freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights and requiring him to apply for advertising consent (and pay a fee, in this case £60) before expressing his point of view was an illegal restriction on his freedom of expression.

Ground 1

15. Lord Kingsland submitted that, in substance, the present case was on all fours with the decision in Haw. A banner saying "Save Five Lamps" was no more an advertisement than a banner saying "Stop the War" or "Troops Out of Iraq", or words to that effect. It was expressing opposition to a major development scheme promoted by a political body, the council. The purpose of the banner was to influence political opinion within the council and to persuade the council to change its policy. The references in lower case blue writing to the logo of Derby Heart, its telephone number and website, were all subsidiary to this political message, and were also themselves of an entirely political character. The information in lower case supported the primary message by saying, in effect, that anyone who wanted more information about the political campaign to save Five Lamps should telephone Derby Heart's number or look at its website.
16. In paragraph 6 of the case stated the judge had erroneously elevated the importance of the supporting information and appeared to have concluded that the primary purpose of the banner was to advertise the existence of the Derby Heart organisation by displaying its logo, telephone number and website. That was not the purpose of the banner. Its purpose was to make a political statement criticising the council's support for the 'Connecting Derby' road scheme, and to add that one way of giving support to that cause was to contact Derby Heart. He submitted that the expression "employed wholly or partly for the purposes of, advertisement, announcement or direction..." had a limiting effect. Parliament did not intend that the display of every word, letter, sign, placard et cetera should be caught by the Regulations, only those which fell within the words of limitation. Gray J was right to conclude that in its ordinary connotation advertisement "applies... to material which promotes a product or service" and that Mr Haw's placards opposing the Iraq war were neither "announcements" nor "directions".
17. For my part I would accept the submission that Parliament did not intend that the display of every message by any means whatsoever should be subject to the Regulations. The display (to use a convenient shorthand for word, letter, model, sign etc) must be "in the nature of, and employed wholly or partly for the purposes of, advertisement, announcement or direction..."
18. There is a degree of circularity in this definition in section 336(1). If one asks, what is an advertisement, the answer is, at least in part, something that is "in the nature of, and employed wholly or partly for the purposes of, advertisement..." In this respect the definition of an advertisement is like the definition of the proverbial elephant. One knows an elephant (or advertisement) when one sees it because it is in the nature of an elephant (or advertisement).
19. The judge was referred to the following meaning of "advertisement" in the Oxford English Dictionary 1989:

"Advertisement - The turning of the mind to anything, attention, observation, heed; the action of calling the attention of others, admonition, warning, percept, instruction; the action of informing or notifying, information, notification, notice; a (written) statement calling attention to anything, a notification, a 'notice'; a public notice or announcement usually in writing or print, by placard or in a journal, specifically a paid announcement in a newspaper or other print."

The same dictionary gives the following meaning for "announcement":

"The action or process of announcing, public or official notification, intimation, declaration."

And direction:

"An instruction how to proceed or act; an order to be carried out; a percept; instruction how to go to a place."

20. I respectfully agree with Gray J that "in its ordinary connotation" today the word "advertisement" has acquired a somewhat narrower meaning than any form of public announcement and that it is usually applied to the display of "material which promotes a product or service." I would add the rider that the product or service need not be promoted on a commercial basis, for example charities or other non-commercial organisations may advertise the availability of their services.
21. This modern usage of "advertise" and "advertisement" is illustrated by the meanings given to those words in the Concise Oxford Dictionary 1990:

"advertise 1 draw attention to or describe favourably (goods or services) in a public medium to promote sales. 2 make generally or publicly known. 3 seek by public notice, esp in a newspaper...

"advertisement 1 a public notice or announcement, esp one advertising goods or services in newspapers, on posters, or in broadcasts. 2 the act or process of advertising..."

22. I have deliberately added the qualification "usually" (or "especially", see the Concise Oxford English Dictionary above), because I do not understand Gray J, in that short passage in paragraph 19 of a judgment which was not principally concerned with the ambit of the Act or the Regulations, to have been deciding that the ordinary meaning of advertisement was limited simply to material which promotes a product or service.
23. If the word "advertisement" had stood alone in section 336(1) I would not have given it such a narrow meaning. However, the fact that Parliament felt it necessary to add the words "announcement or direction" suggests that it was recognised that advertisement might be given too narrow a meaning which might be harmful to the interests of amenity or public safety. Parliament therefore made it clear beyond any doubt that "advertisement" was to be given a very broad meaning for the purposes of the Act.
24. To announce something is to make it publicly known. If "announcement" was used in its broadest sense, it might be thought that the words "advertisement" and "direction" would be rendered otiose. In my view it would be a pointless semantic exercise to try to define precisely when an "advertisement" was not an "announcement" and vice versa, and when an "announcement" should more properly be described as a "direction".
25. Notwithstanding the fact that displaying an advertisement in contravention of the Regulations is a criminal offence so that any ambiguity in the Definition in section 336(1) should be resolved in favour of the appellant, it is plain that Parliament deliberately extended the meaning of advertisement so as to include announcements and directions which might not have been regarded as advertisements if that word was to be narrowly construed.
26. Although Lord Kingsland invited us to, in effect, disregard the Derby Heart logo, its telephone number and its website, and to treat them as subsidiary to the political message "Save Five Lamps", I do not think that it would be right to accede to that invitation. The judge had to deal with the banner as described in the case stated, not with some hypothetical banner which simply said "Save Five Lamps". Although we do not have the details of Mr Haw's placards and posters, I am prepared to accept that (apart from a particular political message) they may well have been similar to a banner which simply said "Save Five Lamps". I would wish to reserve for consideration in another case the question whether a banner displaying only such a message, or other "political" messages such as "Save the Whale", "Ban the Bomb", "Stop the War", "Vote Labour", "Vote Conservative", "Vote Liberal Democrat" et cetera, can fairly be described as "announcements" and therefore advertisements for the purposes of section 336(1).
27. For my part, I would treat Haw as a decision on its own very particular facts. A broader conclusion, that banners carrying political messages such as "Save Five Lamps" or "Stop the War" were not advertisements, could have far-reaching consequences.
28. The banner, in the present case, was approximately 2 metres by 0.85 meters and was displayed on the upper part of the front elevation of the appellant's house. If Lord Kingsland's principal submission, that banners displaying expressions of political views are not advertisements for the purposes of the Act was correct, there would be nothing to prevent the appellant from covering the front of his house with a much larger banner, or, if he owned land in say a National Park, from unfurling his banner in the midst of remote and beautiful countryside, or in a field beside a motorway if he owned such a field, and wished to express a particular political opinion. The examples could be multiplied, but they are sufficient, to my mind, to demonstrate that resolving the argument in the abstract without regard to the characteristics of this particular banner, would not be appropriate.
29. The submission that the judge should have had regard to the primary (political) purposes of the banner ignores the terms of section 336(1) which defines a sign, placard et cetera as an advertisement if it is "in the nature of, and employed, wholly or partly for the purposes of, advertisement, announcement or direction..." (my emphasis). Whatever may be said about the message "Save Five Lamps" in red letters on the poster, the judge was entitled to conclude that the Derby Heart logo and the blue lower-case lettering giving its telephone number and website, were advertising the existence of Derby Heart. It matters not whether, when combined with the words "Save Five Lamps" the logo and lettering are regarded as being in the nature of (and for the purposes of) an advertisement for Derby Heart and one of its aims, or as an announcement of its existence and one of its aims, or as a direction to those who might wish to support one of its aims. The three words, advertisement, announcement and direction are not necessarily mutually exclusive and an announcement may include a direction and vice versa.
30. Considering the banner as a whole, the judge was entitled to be satisfied, as a matter of fact, that it fell within the extended definition of advertisement in section 336(1).
31. Lord Kingsland submitted that if there was any ambiguity in the Act, it should be resolved in favour of the appellant's arguments in the light of the value that the common law has always placed upon freedom of speech. He cited a number of authorities, including the speech of Lord Bingham in R v Shayler [2003] 1 AC 247 at paragraph 21, and the speech of Lord Steyn in R v Secretary of State for the Home Department ex parte Simms [2000] 2 AC 115. He submitted that the well-established common law principle was reinforced by Article 10 of the European Convention on Human Rights which provides:

"Freedom of expression

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

"2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartially of the judiciary."

32. The principle is not in doubt, but I do not accept that it is of any assistance in interpreting the meaning of "advertisement" in section 336(1) of the Act. As section 220(1) of the Act makes clear, the Regulations are not concerned with the contents of any advertisement. A local planning authority is not entitled to refuse advertisement consent because it disagrees with the content of the message to be displayed. Its powers are limited to regulating displays in the interests of amenity and public safety. These restrictions are repeated in Regulation 4 of the Regulations:

"4(1) A local planning authority shall exercise their powers under these Regulations only in the interests of amenity and public safety, taking account of any material factors, and in particular -

(a) in the case of amenity, the general characteristics of the locality, including the presence of any feature of historic, architectural, cultural or similar interest, disregarding, if they think fit, any advertisement being displayed there;

(b) in the case of public safety -

(i) the safety of any person who may use any road, railway, waterway, dock, harbour or aerodrome;

(ii) whether any display of advertisements is likely to obscure, or hinder the ready interpretation of, any road traffic sign, railway signal or aid to navigation by water or air.

(2) In determining an application for consent for the display of advertisements, or considering whether to make an order revoking or modifying a consent, the local planning authority may have regard to any material change in circumstances likely to occur within the period for which the consent is required or granted.

(3) Unless it appears to the local planning authority to be required in the interests of amenity or public safety, an express consent for the display of advertisements shall not contain any limitation or restriction relating to the subject matter, content or design of what is to be displayed."

33. The Regulations do not prevent members of the public from holding opinions and receiving and imparting information. Information may be imparted (or received) in a wide variety of ways and the Regulations interfere (to use the words of Article 10(1)) with one particular method of imparting and receiving information which may have adverse effects in terms of amenity and public safety. They do so only to the extent that it is expedient in the interests of amenity and public safety.
34. Lord Kingsland accepted that freedom of speech, whether under the common law or Article 10 of the Convention, was not an unqualified right. He further accepted that it was legitimate to control the display of banners carrying political messages in the interests of public safety; one of the considerations specifically mentioned in Article 10(2). Thus, he conceded that it would be legitimate to refuse consent in order to prevent such a banner from obscuring a road traffic sign or hindering the interpretation of a railway signal (see Regulation 4(1)(b) (ii)).
35. The appellant's skeleton argument before the judge had made the point that the council's objection to the banner was simply on amenity grounds: because it considered that the banner was "highly detrimental to the character and appearance of the conservation area". It was submitted on behalf of the appellant before the judge that:

"No suggestion is made that there were public safety grounds to be considered in relation to the banner. There being no restrictions in relation to the exercise of freedom on expression on amenity grounds, it would have been unlawful for Derby City Council, on an application being made, to have refused advertisement consent for the banner." (See paragraph 3.4 of the appellant's skeleton argument annexed to the case stated.)

36. Before us, that submission was repeated by Lord Kingsland. I do not accept it. Among the list of considerations in Article 10(2) which may justify the imposition of restrictions upon the exercise in a democratic society of the right conferred by Article 10(1), one finds not merely public safety but also "the protection of the reputation or rights of others." (my emphasis)
37. In Chapman v United Kingdom [2001] 33 EHRR 18 the European Court of Human Rights accepted that the imposition of planning controls which interfered with the claimant's right to respect for her private and family life under Article 8(1) "pursued the legitimate aim of protecting the 'rights of others' through preservation of the environment" (see paragraph 82). Although Chapman was an Article 8 case, I can see no reason why the "rights of others" in Article 10 should be more narrowly construed. Given the wide variety of means by which a person wishing to impart information may choose to adopt, I can see nothing disproportionate in principle in regulations which impose restrictions upon one particular means of imparting information which has the potential to have adverse effects upon amenity.
38. Freedom of speech is undoubtedly important (see section 12 of the Human Rights Act 1998 which requires the court to have "particular regard to the importance of the Convention right to freedom of expression"), but why should a person who feels strongly about a political issue have an absolute right to impart his views in a particular manner that may be highly damaging to the amenities of his fellow citizens. There is no absolute right to impart one's views, political or otherwise, in such a way as to amount, for example, to a noise nuisance. Visual intrusion may, in certain circumstances, be no less harmful to the rights of others.
39. The Regulations do not prevent a person who particularly wishes to impart information by way of displaying an advertisement from doing so. They merely require him to obtain consent from the local planning authority if he does not wish to display the advertisement on a hoarding that is already approved under the Regulations, or does not wish (or is unable) to take advantage of the various classes of exempt advertisements in schedule 2 to the Regulations or the list of deemed consents in schedule 3 to the Regulations.
40. When the statutory scheme established by the Act and the Regulations is considered as a whole, there is simply no warrant for the bare assertion made on behalf of the appellant that the need to obtain consent for the display of banners, placards, et cetera, bearing political messages, would be an unwarranted interference with the right to freedom of expression so that section 336(1) should be interpreted in such a manner as to exclude them from the definition of an advertisement. For these reasons I would answer the first question posed by the judge in the affirmative.

Ground 2

41. Against this background I can deal quite shortly with ground 2 and with the judge's second question. For the reasons set out above I do not accept that the statutory controls on the display of advertisements are, in principle, an unlawful interference with the right to freedom of speech. Although Lord Kingsland in his submission sought to criticise the balancing exercise carried out by the respondent council in this case and the judge's failure to carry out a balancing exercise herself, weighing the importance of free speech against the amenity objections, there is no indication in the case stated that either the council or the judge was being asked to carry out any such exercise.
42. Nor was there any need for such an exercise since, for the reasons set out above, the Act and the Regulations provide a framework within which a reasonable balance can be struck between an individual's right to impart information and the rights of those to whom the information is to be imparted; a balance which was singularly lacking in the appellant's case. As mentioned above, it was being submitted on behalf of the appellant, before the judge, that there could be "no restrictions in relation to the exercise of freedom on expression on amenity grounds", not that some balancing exercise under Article 10 should have been carried out. Chapman was not cited before the judge, nor was it cited in the appellant's lengthy skeleton argument before us.
43. In its skeleton argument before the judge the council said under the heading, "Is the interference proportionate to the circumstances of this case?":

"• defendant failed to comply with several written requests to remove the banner and would not remove the banner voluntarily.

• defendant could legally express his opinion in other ways - advertisements in newspaper, handing out flyers, displaying an advertisement on an approved hoarding etc.

• premises are in a conservation area and as such special considerations apply (Policy E35 of the City of Derby Local Plan). The location, size, colour and material make the banner dominant in the street scene and it's presence was highly detrimental to the character and appearance of the conservation area.

• the premises are a residential dwelling and are located in a predominantly residential area.

• the banner seeks to protest against the Connecting Derby Road Scheme. There is a proper legal avenue to object to the Scheme.

• both the prosecuting Council and the Court, as public authorities have to balance the rights of the defendant to express his opinion and preserve and protect the rights and freedoms of others."

44. Although Lord Kingsland submitted that the council's road proposals would have an adverse effect on the conservation area and that this was a change of circumstances which should have been taken into consideration under Regulation 4(3) (above), there is no suggestion in the case stated that this argument was addressed to the judge or that she was provided with any evidence which might have gainsaid the various factors referred to by the council (above).
45. I would, in any event, question the appropriateness of a district judge, in a criminal prosecution, attempting to conduct such a balancing exercise in order to determine whether a prosecution under the Regulations was proportionate. Whether a particular advertisement adversely affects amenity and/or public safety, and if so to what extent, are very much matters of judgment for the local planning authority, as is the question whether any material change in circumstances is likely to occur within a particular timescale. While the appellant is entitled to his view that the road scheme proposed by the council will have an adverse effect on the conservation area, it is by no means clear that the council shares that view. Since the council is promoting the scheme it presumably considers that it will be beneficial in planning terms, but there is simply no evidence about that matter in the case stated. Even if there was, it is difficult to see how a district judge could reasonably be expected to resolve differing points of view as to the effects of a development proposal on the character and appearance of a conservation area.
46. Insofar as it is submitted that the council should have carried out a balancing exercise and failed to do so (about which there is no evidence in the statement of case), I would sound a note of caution. Of course the council had a discretion as to whether to prosecute, and that discretion was not fettered by the terms in Regulation 4 (see Kingsley and Anr v Hammersmith and Fulham London Borough Council, The Times, 30th April 1991). That does not mean that it would be appropriate for a local planning authority to consider the "merits" of the message which was being displayed without consent, whether it was commercial, whether it was political, et cetera. That would be the first step towards censorship; a local planning authority could then choose not to prosecute in those cases where it agreed with the political message that was being displayed without consent and to prosecute where it disagreed with the message. Insofar as it was being submitted that the fact that this advertisement was an expression of a political rather than a commercial point of view was relevant for the purposes of deciding whether or not a prosecution was justified, I would emphatically reject that submission.
47. The judge was responding to the submissions made before her that the council could not lawfully rely on amenity considerations to refuse consent for display of the appellant's banner. In those circumstances her response was eminently reasonable: that the appellant's Article 10 rights were engaged, but that he could and should have made an application for consent under the Regulations. For the reasons set out above the requirement to apply for advertisement consent was not a disproportionate interference with the appellant's right to freedom of expression, either as a matter of principle, or on the facts (in so far as they appear in the case stated) of this particular case.
48. I would therefore answer the judge's second question in this way: while the appellant's Article 10 rights were engaged, they were not breached by the criminal proceedings since, if for no other reason, he had neither applied for, nor been denied, consent to display the banner. For these reasons I, for my part, would dismiss the appeal.
49. MR JUSTICE COLLINS: I agree. Like my Lord I do not believe that the case of Westminster Council v Haw has the wide effect for which Lord Kingsland contended. It is not necessary for us to consider in any detail what the proper ambit is of that case, but for my part I would doubt that the purpose behind section 224 of the Act is limited to the display of material which promotes a product or service. It seems to me that, as one is dealing with regulation in a planning context, it more properly relates to display generally. Like, my Lord, I believe that the definition which extends to announcements or directions as well as advertisement is intended to give a wide meaning.
50. But for the reasons that my Lord has given, I entirely agree with the answers to the questions which he proposes. It follows that the appeal must be dismissed.
51. MR PIKE: My Lord, the only matter that I need to trouble you with is the question of an application for a certificate.
52. MR JUSTICE COLLINS: Yes.
53. MR PIKE: Your Lordship was good enough to indicate last week that you would allow Mr Butler a little time whilst the transcript had appeared. So, my Lord, what I ask you for is a direction that Mr Butler have 14 days from the production of the transcript.
54. MR JUSTICE COLLINS: Yes. You presumably would ask for an expedited transcript?
55. MR PIKE: It is in your hands on that point, because when we get the transcript we have 14 days...
56. MR JUSTICE COLLINS: I do not think it is necessary, no.
57. MR PIKE: I am sure everyone that comes before your Lordship's court would ask for expedition.
58. MR JUSTICE COLLINS: No, I take the point. I do not think it is necessary to direction for expedition.
59. MR PIKE: So 14 days.
60. MR JUSTICE COLLINS: You may have 14 days from the production of transcript.
61. MR JUSTICE SULLIVAN: Within the 14 days you will put in your application for a certificate and for permission to appeal in writing and the application will be dealt with by us on the papers? That is the order you are seeking?
62. MR PIKE: My Lord, yes, I am most grateful.
63. MR JUSTICE SULLIVAN: Right.
64. MR JUSTICE COLLINS: Thank you very much.