Butler v Derby City Council

For the purposes of the statutory advertisement-control regime, “advertisement” has a broad meaning. It includes material that is wholly or partly an advertisement, announcement or direction, and may include non-commercial or political material. The display must be assessed as a whole, including supporting logos, contact details and websites.

Controls on the manner of displaying information do not necessarily breach freedom of expression. The statutory scheme permits regulation only in the interests of amenity or public safety and provides a framework for a proportionate balance. A person’s Article 10 rights may be engaged, but criminal proceedings for displaying an unauthorised advertisement are not thereby unlawful where consent has not been sought or refused.

The claimant appealed by way of case stated against his conviction for displaying, without consent, a banner on his property. The banner said “Save Five Lamps”, displayed the Derby Heart logo, and gave a telephone number and website for an organisation opposing the council’s road scheme.

The district judge held that the banner was an advertisement under section 336(1) of the Town and Country Planning Act 1990. She also held that the claimant’s Article 10 rights did not prevent criminal proceedings because he had not applied for advertisement consent. The Divisional Court considered whether the banner fell within the statutory definition and whether the prosecution unlawfully interfered with freedom of expression.

1. Appeal dismissed. The banner was an advertisement within section 336(1) of the Town and Country Planning Act 1990.
2. The statutory definition deliberately extends beyond a narrow commercial meaning. In its ordinary modern connotation, “advertisement” usually concerns material promoting a product or service, but the statutory references to an announcement or direction give the expression a broad scope. Non-commercial organisations may advertise their services. The three concepts are not necessarily mutually exclusive.
3. The banner had to be considered as described, rather than reduced to the words “Save Five Lamps”. The judge was entitled to find that the Derby Heart logo, telephone number and website advertised the organisation, announced its existence and aims, or directed those wishing to support them.
4. The controls did not, in principle, unlawfully interfere with Article 10. Sections 220(1) and 224, and regulation 4 of the Town and Country Planning (Control of Advertisements) Regulations 1992, restrict the display, not the content, of advertisements and do so for amenity and public-safety purposes. Consent is not required where an exemption or deemed consent applies.
5. Article 10 rights were engaged, but were not breached by the proceedings. The claimant had neither applied for nor been refused consent. A local planning authority must not decide whether to prosecute by reference to agreement or disagreement with the political message, since that would tend towards censorship. Questions concerning amenity, public safety and material changes in circumstances are primarily matters for the authority. The district judge was not required to conduct a fresh planning balance in the criminal prosecution.

• High Court (Administrative Court): The Divisional Court heard the claimant’s appeal by way of case stated against his conviction before District Judge Alderson. The appeal was dismissed and the questions posed by the district judge were answered in substance in favour of the council.