SIGNS OF CONFUSION

Two Derby residents have been successfully prosecuted by the city council for displaying banners on their homes. The banners, which the courts ruled were illegal advertisements, were in protest at the council's planned road building scheme, Connecting Derby. Both men claimed the council was being vindictive in targeting them, as countless businesses around the city were apparently flouting the same advertising laws with their banners and boards.

Richard Butler is not a man who backs down easily if he believes in something. Mr Butler, of Kedleston Road, was so determined to defend his home from the threat of Connecting Derby that he put up a banner to reflect this opinion. Despite attempts by the council to get him to take it down, he stood his ground for several weeks and the council lost patience. Court proceedings followed. Mr Butler lost the case, was given a 12-month conditional discharge and was ordered to pay £1,706 costs to the council.

District Judge Joanne Alderson, who presided over the case at Southern Derbyshire Magistrates' Court earlier this month, surprised many of Mr Butler's supporters by ruling that the main wording on the banner "Save Five Lamps" was in fact an advertisement. It was an advertisement, she said, because the words represented a "direction" to the reader, and was illegal because Mr Butler had not gained consent to display it.

Under the Town and Country Planning Act, an advertisement means "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..." The decision was a bombshell to Mr Butler, who believed he had the right, the human right, to express his views freely within a democratic society. It was a protest, not an advertisement, he claimed.

"Derby City Council has behaved, in my eyes, in an appalling fashion - victimising someone who dared to stand up to its plans," he said. But District Judge Alderson said the banner "directed" people towards the campaign to stop the road-widening scheme at the Five Lamps junction, a campaign organised by Derby Heart, of which Mr Butler is now chairman. Had he worded the banner in a way which made it a statement rather than a "direction" he may have got away with it.

Instead of "Save Five Lamps", he perhaps could have argued that "Five Lamps Must be Saved" was not a direction. Mr Butler's Derby Heart colleague, Trevor Lloyd-Davies, admitted the same offence, advertising without consent under the terms of the Town and Country Planning Act. Mr Lloyd-Davies pleaded guilty after witnessing the outcome of Mr Butler's case. His banner, which read "Stop the New Inner Ring Road - Save Our City", was also protesting at Connecting Derby.

But why, if these banners were advertisements, have so many businesses been allowed to display adverts without being prosecuted? Neil Jackson, council enforcement officer, said, "The amount of advertising that goes on, in all of its forms, is a massive problem. But we have limited resources. We just don't have the time to continuously drive around the city looking for illegal advertisements. But if we see them, we act. Almost everyone complies, though some might require a bit more pressure than others."

Mr Jackson said on average his two-strong department dealt with around 100 complaints of illegal advertising at any one time. It has been particularly busy in the past two weeks since the Evening Telegraph asked the council to justify the existence of more than a dozen questionable banners around the city. Only one case, however, apart from Mr Butler and Mr Lloyd-Davies, has ended up in court recently. The last prosecution by the city council was in March 2001. It related to a sign at The Future Club, in Babington Lane, which the proprietor had refused to remove.

Part of the problem with advertising enforcement lies within the very law that supports it. It throws up, as Mr Jackson admits, many "woolly" areas. "Advertisers are opportunists," said Mr Jackson. "People who advertise are constantly looking for loopholes to exploit." He said he sympathised with people for not fully understanding the complexities of the law. Mr Lloyd-Davies's banner, on the side of his listed house on the corner of Friar Gate and Ford Street, was no bigger or brighter than the three banners on the wall of Derby Clutch Centre, just yards away.

But those banners are perfectly legal because they advertise the "goods or services" of the business within and under law they have automatic, or "deemed", consent. Ironically, on the reverse of one of those banners is a slogan protesting about Connecting Derby, the business is likely to be demolished under the council's road-widening plans. Owner David Yeomans turned the banner around when he was approached by the council and no further action was taken. He said, "The whole system is ludicrous. The council has double standards."

On the other side of Ford Street, the Willows sports centre has been breaking the law, according to Mr Jackson. Its banner, which promotes student five-a-side leagues, is a few feet higher than the law allows (the highest point must be no more than 4.6 metres above ground level). The council asked the owners to remove or lower it. Next door, the emerging Joseph Wright Sixth Form Centre has been displaying two banners which are much longer than the 12.1m allowed under deemed consent. Mr Jackson said, "They're simply too big. They've been notified and they have the option of removing them or reducing them in size. We want some action straight away."

He said the council's next step was "being considered" in the event of the advertiser, Cedar House Investments, not complying. He said he understood the firm was now planning to apply for consent. Radleigh Homes, which is building the Millhouse Apartments on the junction of Ford Street and Brook Street, has also been approached by the council. The developer had too many flags on the site, an unauthorised hoarding on a crane and an illegal hoarding "within the curtilage" of a building in Brook Street. Radleigh Homes has now complied with all the council's requests to either remove or reduce its adverts, according to Mr Jackson.

The Cob Shop, in Friar Gate bridge, has been advertising its 25th anniversary for more than 18 months. The banner is too high and the owner has been asked to remove it. Just down the road, the banner advertising the Dunmar Group's headquarters in Ashbourne Road, next to the Greyhound pub, is legal. Estate agents' boards are generally permitted unless they are too big, like the two banners on the corner of Bridge Street and Brook Street, which were advertising "Apartments for Sale" in the Rykneld Tean Mills. These have now been removed.

The owner of Cresta Gems, in Victoria Street, also pledged to remove a large "Sale" sign which was too high, according to Mr Jackson. The same is true with two of the banners adorning the Bridge Inn, in Mansfield Road. A banner advertising Christmas meals outside Ye Olde Dolphin Inne, in Queen Street, is legal, because it is less than 4.6m off the ground and the individual letters on the banner are less than 750mm tall. The law then, it seems, allows businesses to advertise with banners, with certain conditions, but does not allow banner protests, as the protester is unlikely to run a business at his home which relates to the subject of the protest.

However, Mr Butler and Mr Lloyd-Davies would have been acting perfectly legally had they chosen to drive a fleet of fluorescent buses around emblazoned with protests. Adverts on vehicles are allowed. But it is not sufficient to put wheels on a hoarding and claim it is a vehicle, according to Mr Jackson's interpretation of the law. Several such trailer adverts by a firm called Armadillo Storage, depicting a woman's cleavage with the slogan "Need More Space?", were recently drummed out of the city following numerous complaints from (mainly) female passers by. It was not the content that made it illegal but the fact they were advertisements.

The Evening Telegraph discovered only through the course of this investigation that it too was apparently advertising on a trailer without the required consent. It seems, though, that if a car or truck was attached to the trailer it would become legal, because it would be classed "mobile" rather than "static". Although many advertisers find loopholes in the law, small and big businesses alike often do not know they are breaking the law.

Mike Matthews, proprietor of McDonald's off Sir Frank Whittle Road, was approached by Mr Jackson on Friday and has since removed an unauthorised sign from the roof of his restaurant. He was surprised to discover the sign was illegal, but was equally surprised to find that a banner advertising "Grilled Chicken Salad" attached to his boundary fence was legal. "I thought it would be the other way round," said Mr Matthews.

He also said, "I strongly believe I have the right to market my business appropriately. There's no doubt banners work. In terms of the law, frankly I just want them to keep their noses out." He said he felt Mr Butler and Mr Lloyd-Davies were victims of "selective" enforcement. The council has obviously denied the allegation. However, some councillors, including Labour's Paul Bayliss, have claimed the decision to prosecute had brought "ridicule" on to the authority. And claims of inconsistency have been levelled at the council by Derby Heart members.

The most blatant example of inconsistency appears to be the speed in which action was taken against the two residents - when council officers ignored illegal banners advertising "Sunday Opening" at the Eagle Centre across the Cock Pit car park for more than two years. The council claims it was down to a "minor breakdown in communication". But the fact remains that, in an unrelated advertisement application, a planner noted in 2002 that the Eagle Centre banners were illegal.

The note apparently failed to "filter" from the planning files to the enforcement files. It was not until Mr Butler pointed out the discrepancy that joint Eagle Centre owner Westfield removed the banners on request in August. Mr Butler said, "This was not a minor breakdown in communication. I cannot accept that for two years nothing was done about it. It took me 10 minutes to find out they had no advertising consent. Are we saying that if no one reports a banner, council officers will drive by all day and ignore them? It all goes to show that the definition of what has deemed consent is very difficult for the layman to comprehend."

As Mr Jackson points out, it is all a matter of degrees. "Richard Butler's case was really important," he said. "Had the council lost, it would have opened the door to all forms of unauthorised advertisements which people would then have claimed were personal expressions." The question remains as to whether or not prosecution was an appropriate course of action for the council. Will it merely force protesters to find the same loopholes in the advertising law that businesses have been finding for years? As the saying goes, watch this space! (Source: Derby Evening Telegraph)

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