Advertisement — Appellant displaying protest banner — Criminal proceedings for planning offence — Whether regulations entitling judge to find banner constituting advertisement for statutory control purposes — Whether criminal proceedings contrary to freedom of expression — Appeal dismissed
In May 2004, pursuant to an information preferred by the respondents, the claimant was convicted of displaying an advertisement without the appropriate consent contrary to regulations 5 and 27 of the Town and Country Planning Act (Control of Advertisements) Regulations 1992 and section 224 of the Town and Country Planning Act 1990.
He had tied a banner, approximately 2m by 0.85m in size, to the front of his home. It bore the words “Save Five Lamps” in capital letters, below which was the logo, telephone number and website address of a residents and traders’ association which opposed the respondent council’s “Connecting Derby” road scheme.
The appellant appealed, contending that; (i) the judge had erred in finding that the banner displayed was an “advertisement”, as defined by section 336 of the 1990 Act, being “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, and… any hoarding or similar structure used, or adapted for use, for the display of advertisements”; and (ii) even if the banner was an advertisement, the appellant was exercising his right to freedom of expression as guaranteed by article 10 of the European Convention of Human Rights, and requiring him to apply for consent before expressing his point of view was an illegal restriction on that freedom.
Held: The appeal was dismissed.
The district judge was entitled to find that the banner fell within the extended definition of an advertisement in section 336 of the 1990 Act and the 1992 regulations. The fact that Parliament felt it necessary to add the words “announcement or direction” in section 336(1) suggested that it was recognised that “advertisement” might be given too narrow a meaning. Therefore, it was made clear beyond doubt that “advertisement” was to be given a very broad meaning for the purposes of the 1990 Act.
Although Parliament did not intend that the display of every message by any means whatsoever should be subject to the regulations, the meaning of “advertisement” was not limited simply to material that promoted a product or service. Section 220(1) of the 1990 Act made it clear that the regulations were not concerned with the subject matter of an advertisement. A local planning authority was not entitled to refuse consent because it disagreed with the content of the message. Its powers were limited to regulating displays in the interests of amenity and public safety: Westminster City Council v Haw [2002] EWHC 2073 (QB) considered.
The statutory controls upon the display of advertisements were not, either in principle or in fact, an unlawful interference with the right to freedom of speech. There was nothing disproportionate in regulations that imposed restrictions upon one particular means of imparting information that could potentially have adverse effects upon amenity.
In the present case, 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: Chapman v United Kingdom 27238/95 (2001) 33 EHRR 18 considered.
Lord Kingsland QC, Philip Petchey and Jeremy Pike (instructed by Taylor, Simpson & Mosley, of Nottingham) appeared for the appellant; the respondents did not appear and were not represented.
Eileen O’Grady, barrister
