Butler v Derby City Council

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").

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

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:

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.

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:

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

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

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.

Section 220(1) of the Act provides that:

Section 221(1) provides:

Section 224 deals with enforcement of advertisement control:

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

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.

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.

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".

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..."

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).

The judge was referred to the following meaning of "advertisement" in the Oxford English Dictionary 1989:

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.

This modern usage of "advertise" and "advertisement" is illustrated by the meanings given to those words in the Concise Oxford Dictionary 1990:

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.

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.

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".

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.

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).

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.

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.

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.

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).

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 forthe 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:

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:

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.

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)).

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:

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)

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.

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.

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.

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.

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.

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.

In its skeleton argument before the judge the council said under the heading, "Is the interference proportionate to the circumstances of this case?":

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).

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.

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 Kingsleyand 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.

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.

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.

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.

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.

MR PIKE: My Lord, the only matter that I need to trouble you with is the question of an application for a certificate.

MR JUSTICE COLLINS: Yes.

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.

MR JUSTICE COLLINS: Yes. You presumably would ask for an expedited transcript?

MR PIKE: It is in your hands on that point, because when we get the transcript we have 14 days...

MR JUSTICE COLLINS: I do not think it is necessary, no.

MR PIKE: I am sure everyone that comes before your Lordship's court would ask for expedition.

MR JUSTICE COLLINS: No, I take the point. I do not think it is necessary to direction for expedition.

MR PIKE: So 14 days.

MR JUSTICE COLLINS: You may have 14 days from the production of transcript.

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?

MR PIKE: My Lord, yes, I am most grateful.

MR JUSTICE SULLIVAN: Right.

MR JUSTICE COLLINS: Thank you very much.