Will Miliband now throw his respectful support behind Van Man Dan’s planning application?

 

I’m afraid Ed Miliband’s reaction to Emily Thornberry’s tweeted picture of Dan Ware’s flag bedecked Strood house suggests that he is a phoney.

According to Ed he feels “respect” whenever he sees a white van. Intrinsically there is nothing to respect about a white van. Such vans are of course used by hard-working painters, decorators and builders (like Mr Ware); but they are also favoured by less savoury people such as cigarette smugglers, cannabis couriers and child snatchers. To feel “respect” when he sees a van, whatever its colour, is just silly. In fact, however, nobody believes for a moment that he feels any such thing. Mr Miliband may be considered weird, but not that weird. He is a phoney.

According to Ed he has “never been angrier” than when he saw Emily Thornberry’s now famous tweet. If this were really true his labile emotions over such a trifling issue would render him mentally unsuited, and probably mentally incapable, of running the country. But in fact nobody believes that it is true. It is a phoney rage.

According to Ed “there is nothing unusual or odd about having England flags in your window.” This is disingenuous as well as phoney. Mr Ware does not have “England flags in his window.” Mr Ware’s two England flags are dangling from his gutter, almost entirely obscuring his main upstairs window. He also has a West Ham flag tacked onto the lower side of the larger flag which stops it from hanging properly and makes it look especially untidy. Unless Ed is completely stupid (which he is not), he is a phoney when he pretends that this is not “unusual or odd.” It is both.

Furthermore, Mr Ware has had the flags in position “since the last World Cup,” despite the fact that, as he puts it: “I know there is a lot of ethnic minorities that don’t like it.”

It is not clear how Mr Ware knows that “there is a lot of ethnic minorities” that don’t like his flags. However, the fact that he continues with his large and untidy display despite knowing of their objections doesn’t really make him someone who automatically deserves respect. If Ed was capable of honesty about his feelings he might say that it makes him look like a bit of a plonker.

So Ed Miliband is a phoney and Mr Ware may be a plonker. But could Mr Ware also, unintentionally of course, have committed a crime? If so, would Ed still have respect for him, or would he then be someone upon whom it would be right to crack down?

To fly a flag without planning permission can constitute a criminal offence. Flying, or in this case hanging, a flag is treated, in the eyes of the law, as “displaying an advertisement,” and for very good reason nobody is allowed to turn their house into an advertisement hoarding without permission. This is what S.224 (3) of the Town and Country Planning Act 1990 says:

3. … if any person displays an advertisement in contravention of the regulations he shall be guilty of an offence and liable on summary conviction to a fine of such amount as may be prescribed, not exceeding [£2,500] and, in the case of a continuing offence, [£250] for each day during which the offence continues after conviction.

It is of course, perfectly possible that in between working in a car business, a building business and occasional bouts of cage fighting Mr Ware found time to apply to Medway Council for permission to display his flags, and that he is displaying the flags in accordance with the Council’s express permission. If he did not do so, however, he may find himself in trouble.

At first glance the law is quite supportive of those who wish to fly flags from their houses. Believe it or not there is actually a coalition policy on the issue and in 2012 the government announced that its aim was:

“… to encourage flag flying by relaxing statutory constraints on flags, whilst at the same time maintaining safeguards against the unregulated display of flags that could harm local amenity or cause offence

The result is that under The Town and Country Planning (Control of Advertisements) (England) Regulations 2007, as amended by further Regulations made in 2012, Mr Ware does not require consent to fly a flag of St George (or indeed of any other country) as long as the flag complies with what are called the “standard conditions.”

But as so often with the small print, these pesky “standard conditions” are the problem. If they are not complied with then Mr Ware’s flags, including the St George’s flags, still require express permission. There are a number of conditions but they include the stipulation that:

“Any advertisement displayed, and any site used for the display of advertisements, shall be maintained in a condition that does not impair the visual amenity of the site.”

“Impair the visual amenity of the site” is a splendid bureaucratic phrase meaning “make the house look nasty.” Put bluntly, if Mr Ware’s flags are an eyesore, and if Medway Council have not expressly authorised them, it can take him to court for breaching this condition.

The Government has helpfully published guidance on the meaning of “impairing the visual amenity”:

“… in assessing amenity, the local planning authority would always consider the local characteristics of the neighbourhood: for example, if the locality where the advertisement is to be displayed has important scenic, historic, architectural or cultural features, the local planning authority would consider whether it is in scale and in keeping with these features.”

We don’t know a great deal about the “local characteristics” of Mr Ware’s neighbourhood, so it is hard to know for sure whether the flags are in keeping with it. We may assume that they are entirely out of keeping with the sort of features one sees in Ms Thornberry’s Islington, although we can take it from Mr Miliband that they are very much comme il faut in his bit of Dartmouth Park, where practically all of the original architectural features have now been obscured by England flags, and it is barely possible to reach Hampstead Heath without being snarled at by bulldogs.

But whatever may be the done thing in Dartmouth Park, it is hard to see many other councils regarding a tacky, scruffy and assertive draping of flags over most of the front of the house as being in keeping with the neighbourhood. This is surely particularly so when, as seems to have been the  case here, some local residents – apparently some of “the ethnic minorities” – have expressed reservations about them.

So even the England flags may be illegal.

But that is not the end of the matter, because Mr Ware is not only displaying two flags of St George, he is also displaying a West Ham Football Club flag.

Potentially this could land him in even hotter water for a number of reasons. The obvious point is that a West Ham FC flag is certainly not in keeping with local “cultural features,” (the local football team being not West Ham but the less glamorous Gillingham Town FC).

And although sporting flags can be allowed without planning permission, the rules about flying them are much stricter than the rules about the display of national flags.

Somewhat bizarrely, while the law surrounding the hanging of an England flag is a little ambiguous, there is no such fuzziness over the West Ham flag. It is illegal to hang it outside your house unless either it has been expressly authorised by the Council, or if it is flown from a flagpole.

The law could not be clearer, although it does take a little ferretting out. Under Schedule 3 of the 2007 regulations, as amended in 2012, a flag “bearing the device of any sports club” is deemed to have planning permission if, but only if, it is:

“attached to a single flagstaff ….”

There are some detailed rules about where the flagstaff can be put but these need not trouble us now. In the absence of a flagstaff, Mr Ware’s West Ham flag requires express planning permission. If he did not obtain it (and an online search of planning applications for flags in Medway does not reveal any such application) he is guilty of a criminal offence.

It may seem somewhat absurd to insist that Mr Ware erect a flagstaff but if he wants to to fly his flags legally he would be well advised to do just that.

Emily Thornberry, of course, was the Shadow Attorney General. She was the senior legal adviser within Her Majesty’s Loyal Opposition. Knowing the law as well as she does it is perhaps understandable that she was shocked not so much by the overall tacky, odd and unusual appearance of Mr Ware’s house, but by the simple absence of a flagstaff.

Ms Thornberry might also have told Mr Miliband – if he was in a mood to listen – that Mr Ware could extricate himself from any potential criminal liability by making an application for retrospective planning consent. It is not too late for him to ask the council to authorise his flags.

Well, Ms Thornberry has gone now so it falls to Barristerblogger to ask Mr Miliband 4 questions:

1. Are you sure that Mr Ware had planning permission to hang his flags?
2. If he did not have permission, do you support him breaking the planning regulations?
3. If he is breaking the planning regulations should he now take his flags down?
4. If Mr Ware decides to make a retrospective planning application, will you support it?

If he does make such an application it will now be both high profile and – if he is right about objections from certain ethnic minorities – hotly contested. If he is to embark upon such a legal process it will obviously be of immense help to him to have Mr Miliband’s support.