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.

White van Dan
Mr Ware’s House

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:

  1. 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.

Bulldog: Ubiquitous in Dartmouth Park; Almost extinct in Islington

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.

Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

15 thoughts on “Will Miliband now throw his respectful support behind Van Man Dan’s planning application?”

  1. Ed had a great opportunity here and he blew it. He could have been a man and defended his colleague and in doing so, instilled a tiny bit of virtue into the sink of shit that is UK politics at the moment. Honesty and loyalty, now there are virtues potential voters might respect and engage with ! Nice one Matthew, planning permission hopefully rejected !

  2. The incident highlight’s Labour’s dumb obsession with what it imagines to be “racism”. Miliband would have been wiser to ignore the whole matter. A tweet! And all it said was “house in Rochester”.
    I doubt if there are any legal problems here because a flag is not an “advertisement”. An advertisement is understood to be something that is trying to sell you something,
    There are no regulations against it as far as I can see. There have been many attempts by local authorities to stop people flying Union Jacks or England flags quite legally, while our public buildings flout the law by flying the disgusting LGBT flag (“Longing to Get up the Bums of Teenagers”).

  3. Oh sorry, what then is the legal definition of an advertisement?
    No doubt about one thing – the way Ed Miliband overreacted to this shows that he is a very worried man. He has got the jitters and that is making his judgement worse. Labour’s vote fell in Rochester and this is probably because traditional Labour voters are as tempted by UKIP as Conservatives.

    1. The short answer is provided by the Government produced “Plain English Guide to Flying Flags“:

      “Flags are treated as advertisements for the purposes of the planning regime and some require formal consent permission) from the local planning authoriy, whereas others do not.”

      The longer answer is S.336 (2) of the Town and Country Planning Act 1990 which defines an advertisement for the purposes of the Act:

      “‘advertisement’ means any word, letter, model, sign, placard, board, notice, awning, blind, 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 (without prejudice to the previous provisions of this definition) includes any hoarding or similar structure used or designed, or adapted for use and anything else principally used, or designed or adapted principally for use, for the display of advertisements ….”

      Since the regulations include rules specifically excluding national and some sporting flags from some (but not all) of the rules that apply to advertisements generally we can be as certain as anything ever is in the law that flags, at least those displaying a recognised symbol, are regarded as advertisements.

      1. I would not read the plain words of s.336(2) as including non-commercial flags, which have little to do with advertisement, especially when erring on the side of the right to freedom of expression.

        Arguably then the Regulations would be ultra vires the Act to the extent that they purport to regulate the flying of non-commercial flags.

        I doubt that it would have been a winning formula to castigate Mr Ware for breach of planning regulations.

        A better strategy to defend Ms Thornberry would have been for for the MP to say, “Yes, I felt the number of flags was excessive, and it looked untidy. If that makes me an Islington snob then so be it.”

        1. The trouble is, if you’re right about national flags not being advertisements there would be no need for the regulations specifically to exclude them from the full force of the legislation. What’s more the government’s own guidance on flag law seems to accept that they are.

          What’s more, how do you get away from the fact that specific regulations are laid down for national flags and sports club flags? Whether or not they’re advertisements in ordinary language, Mr Ware’s flags are covered by the regulations. His England flags might or might not be lawfully displayed. In the absence of a flagpole his West Ham flag wasn’t. It may or may not be silly, but the law seems pretty clear.

          As for a “strategy to defend Ms Thornberry,” I don’t have one and I don’t want one. I have no interest either in supporting her or in doing her down.

  4. Actually, I’m beginning to think Ed Milliband might be quite stupid. It would explain a great deal. And why Emily Thornberry was sacked over that tweet god alone knows. Excellent piece. One of the few blogs I actually read.

  5. A bit hard on Ed M – it was clumsily worded, but when he said he felt ‘respect’ it’s clear that he all he was doing was stating a contrast with the disrespect (supposedly) shown by Thornberry. “What I don’t feel is disrespect” would have been better – or “I feel nothing but respect for those people’s right to live their lives as they choose within the confines of the law”, in the unlikely event that he could get that out without being interrupted.

    The thought that it might *not* be within the confines of the law is another question! (But nobody, from the Sun to Emily T herself, seems to have noticed that, so as far as the media are concerned it doesn’t exist.)

    1. Was it clumsily worded though? Politicians have amongst the highest levels of literacy, as do their advisors; they also know that most people who hear his response will not be analysing the deeper meaning of his words. Is it possible that instead he was courting the fictitious UKIP/Labour waverers, the same labour supporters who read the Daily Mail? OR perhaps more worrying, as the article suggests, is it a faux anger response to a rather innocuous tweet..? I suppose it could be both now I think about it :/

      Personally i think Ed is thinking of the long game; not wanting to have a majority next year, effectively watering down his mandate, and with it his ability to reverse the near unanimous acceptance of austerity and Neo-liberalism portrayed by Westminster. It would be a lot harder for Ed to oppose the views of the electorate if by some miracle a majority actually voted for him. And in case it needs pointing out, the longterm suitabilty of austerity and Neo-liberalism has not been sold well to the labour electorate.

  6. Sorry Matthew, enjoyed reading the blog, but feel compelled to say that I consider the anonymous (aren’t they always) comment about the LGBT flag by Tellingit likeit to be nasty and bigoted. Enjoy what remains of Sunday.

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