A Derby resident who had been campaigning against a road scheme has lost a High Court bid to display a protest banner at the front of his home without special planning consent.
Richard Butler claimed that Derby City Council’s order to remove the banner breached his right to freedom of expression.
However, two High Court judges have ruled that the banner amounted to an “advertisement” and that Derby City Council had been entitled to require him to seek permission prior to erecting.
The judges added that the council had been entitled to launch criminal proceedings after Butler failed to apply for permission.
Butler erected the 2m banner in March 2004 as a protest against the “Connecting Derby” road scheme, which entails widening roads around the Five Lamps junction.
In November 2004, he was convicted at the magistrates’ court for displaying an advertisement without consent, in breach of current national planning regulations restricting the advertising of “goods, trade, business or other concerns”.
His lawyer, Lord Kingsland QC, claimed that the use of regulations governing street advertisements, which were introduced under the Town and Country Planning Act 1990, placed “unnecessary restrictions” on “a legitimate form of protest”.
“Political expression of this sort is not a matter with which the advertisement control regime ought to be, or is, concerned,” he said.
Rejecting the appeal, Sullivan J said that the rights and freedoms of citizens under the common law and human rights legislation were balanced by the need for restrictions to safeguard the rights of others.
However, the judge warned the council, which are promoting the road scheme, that if Butler did apply for planning consent they would not be able to refuse permission on the ground that they disagreed with the banner’s message.
That would be “the first step towards censorship”, he said, adding that the application could be decided only on “amenity and public safety grounds”.
Butler will now be forced to apply for advertising consent, and pay a £60 fee, before he can re-erect the banner.
Butler v Derby City Council Divisional Court (Collins and Sullivan JJ) 22 November 2005.
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.
References: EGi Legal News 23/11/05
