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White van man’s England flags may be illegal, says barrister

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Is the real story of the Emily Thornberry Twitter storm a breach of planning regulations?

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A barrister has weighed into the debate over Ed Miliband’s dismissal of the shadow attorney general by arguing that the flags on display in Emily Thornberry’s “Image from #Rochester” tweet may be illegal.

Citing planning laws, Pump Court criminal barrister Matthew Scott reckons there is a decent chance that the England flags flown by Kent “white van man” Dan Ware — whose home was controversially snapped by Thornberry last week, starting a chain of events that saw her lose her job — are done so in breach of regulations.

Quoting a section of the Town and Country Planning Act 1990, Scott — writing on his blog — explains:

“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.”

If Ware had obtained express permission from his local council, he’s in the clear, states Scott. But if he hadn’t, he could be tripped up by the standard conditions of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, which state:

“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.”

As Scott goes on to note, the phrase “impair the visual amenity of the site” is tricky to define — with government guidance stating that flags have to be “in keeping with [local cultural] features” — but he thinks it’s certainly arguable in this instance. As a result, Scott concludes: “the England flags may be illegal”.

As for the West Ham flag that Thornberry’s tweet also captured Ware flying, Scott argues that it is “certainly not in keeping with local ‘cultural features'”. The local football team, the barrister notes, is Gillingham Town not West Ham.

Consequently it’s definitely illegal, believes Scott, “unless either it has been expressly authorised by the Council, or if it is flown from a flagpole”.

He continues:

“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.”

Got that, Ed Miliband?

Scott’s blog in full: Will Miliband now throw his respectful support behind Van Man Dan’s planning application?