PE Penrith Morrison's Unlawful Signage

Northlakes

A local contact has provided me with details of unlawful signage at Morrison's Penrith.

Dear xxxxxxx,



I write further to our recent communication below regarding the Parking Eye signage currently erected at Morrison’s supermarket.



Having now had the opportunity to consider the signage detail supplied with Morrison’s recent application relating to the car park management plan (reference 15/0561) and following discussion with a senior officer, I write to advise that it is the opinion of the Council that the current signage displayed is unlawful, under The Town and Country Planning (Control of Advertisements) (England) Regulations 2007.



In order to address the breach in advertisement control and prior to pursuing formal planning enforcement considerations, the Council wishes to provide Morrison’s/Parking Eye the opportunity to attempt to voluntarily regularise the matter through the submission of a retrospective advertisement application. As the adverts are currently considered unlawful, we have requested that such an application be submitted by the 18th August 2015, as an attempt to regularise the situation. Any such application will proceed through the normal application process. I will endeavour to ensure that you are consulted on any submitted application, which will provide you the opportunity to comment upon it should you wish too.



Should an application not be forthcoming within the specified time, then I can assure you that the matter will be considered further and you will be updated accordingly.



I trust you are satisfied with the action taken thus far by the department. However, should you wish to discuss any aspect in greater detail then please do not hesitate to contact me again. Please note my working days are Mondays, Tuesdays and Alternate Wednesdays.



Your sincerely,



xxxxxxxxxx

xxxxxxxxxx

Planning Services Team



Tel: 01768 212485



Eden District Council

Mansion House

Penrith

Cumbria

CA11 7YG

Fruitcake

Has Morrison's CEO been informed of this? Has he/she been asked "what if someone gets a PCN whilst the unlawful signs are evident?" and "how will Morrison's stop customers getting an unlawful ticket until lawful signs have been erected?" and how can customers who have already paid for an unlawful ticket get their money back from Morrison's (the principle.)

Marktheshark

Ask how as a member of public you can register an objection to the granting of a retrospective application.

The fact that they have obtained quite substantial income from acting illegally should be point number 1
The signs have offered consideration to contracts and earned the company a small fortune.

Also file an official complaint that the suggest action is not a satisfactory solution to the complaint and you do not grant them permission to close the complaint as it remains UNRESOLVED (this is the important word)
A company should not be allowed to profit from breaking the law and a blind eye be turned by the regulatory authority by inviting them the offer of a retrospective permission, this is complicity with an offender and the correct course of action is to demand removal of the signs, prosecution for the offence and only allow the signs to be placed again with the correct planning application .

Complicity with an offender is not in the interests of citizens and we are all equal under the law and you demand the correct course of action within the legislation is activated under The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 S224-3.
Which carries a penalty of a fine of £2500

Attempting to assist the offender to avoid such prosecution is outside the remit of any council department as it is a criminal offence to which council employees are not exempt.
The act makes no provision for retrospective planning consent.

The correct course of action is for the council to serve notice for immediate removal of all signs and issue a prosecution in the magistrates courts which in the case of a company will be the director acting as company secretary .

Make it very clear the response to the complaint is not only incorrect it is illegal
and will be subject referal to the Local Government Ombudsman if that decision is allowed to stand.
You demand they follow and implement the legalisation.
The only defence allowed by law is (A) the adverts were displayed without knowledge of the land holder or (b)company acted and once made aware they were removed immediately

There is no defence if the company placed the sign themselves.

You have them here, keep at them.

Retrospective planning my ar**.
No provision for that, councils can not invent new laws.
They must uphold them.

NWSteve

Northlakes I hope that a copy of this letter will be heading to DVLA, as per the pepipoo flame pit thread titled 'Official - its OK to commit crime'...wouldn't want them to miss another instance of ParkingEye's crimes...

bazster

I've a similar complaint in to the council regarding my local Morrisons. We'll see what they have to say.

Northlakes

Fruitcake wrote: »

Has Morrison's CEO been informed of this? Has he/she been asked "what if someone gets a PCN whilst the unlawful signs are evident?" and "how will Morrison's stop customers getting an unlawful ticket until lawful signs have been erected?" and how can customers who have already paid for an unlawful ticket get their money back from Morrison's (the principle.)

The complainant will be writing to the CEO of Morrison's not as an angry recipient of a PCN but as a would be genuine customer. The driver just wants to drop his wife off to do some shopping in store whilst the driver goes and does other duties in the town. On returning PE will be delighted to issue a PCN for returning to pick-up his wife and falling foul of the no return policy within 2 hours. How stupid is that!

The other concern that will be raised is the competence of the parking contractor. One would fully expect a electrical engineer or any other contractor to follow the rules and regulations as defined by statute. Why at the customer interface would you employ an incompetent parking contractor who has wilful disregard for the responsibilities laid upon them.

He will also be made aware that these concerns were made to his company over 12 months ago, during which time the turnover loss to his store was probably in the region of £6000 from this complainant alone.

It will also be stated that the complainant will be assisting others to recover monies due from the unlawful issue of PCN's since May 2014.

The DVLA will also be contacted and made aware of this illegality. Penrith is an important visitor destination being on the fringe of the Lake District. We like visitors to enjoy their stay and not leave with a bad taste after infringing made-up rules.

"Marktheshark" is entirely right in his comments and you can't have a retrospective application based on an unlawful premise.

The new application will probably be raised at both the Town Council and District level and will be given a good airing.

The principal concerns raised will be the unsuitability of the site for ANPR cameras. There is a traffic build-up and even if you want to exit the car park it becomes an impossibility at certain times of the day. As has been seen at other locations an ANPR camera can't detect the difference between an over-stayer or a motorist queued up to exit the car park.

Queuing traffic entering the Morrison's petrol station also hinders exiting traffic.

The other concern will be the length of stay on this two hour free car park. The cameras only calculate the time of entry and exit not the time to park-up, shop and get out, significantly reducing the available time of actual parking.

Oakley2702

Just been directed here by a PEPIPOO member, going through a similar thing in Milton Keynes with PE, just waiting for official confirmation from MK council but it would appear that PE have erected signs without planning permission.

I'll be keeping a close eye on this thread and will update you further when I have more.

fil_cad

Refund it all back PE, plus interest.

polyplastic

The planning condition for the Morrisons site has this condition -

“The car park shall be available to the public for the first two hours free of charge or on terms not more onerous than those payable for use of the town centre car parks at Southend Road and Blue Bell Lane.”

The Southend Road car park no longer exists having been swallowed up into the Sainsbury's development. Whilst there is a car park within that development it is not a Council car park.

The land is also subject to a s52 planning agreement (which is like a restrictive covenant on the land) and which indicates that the car park shall be made available on terms not more onerous than those applicable to the Council's town centre car parks. Broadly the same condition as the planning condition.

ParkingEye charge errant motorists £85 (reduced by 40% if paid within 14 days). At Council car parks (Bluebell lane) the charge is £70 reduced by 50% if paid within 14 days, or even within 14 days of an unsuccessful appeal. In ParkingEye's case, if there is an appeal, the discount is lost and the full sum is required if the appeal is unsuccessful. Thus ParkingEye/Morrisons charges are more onerous than the Council's charges and that seems to be a clear breach of both the Planning Condition and the s.52 agreement.

Even if the Southend Road Car Park was of relevance now the charges there are £70, with a 40% reduction if paid within 14 days, such that ParkingEye/Morrisons charges remain more onerous.

The Council has known for long enough now that ParkingEye has charges more onerous than the Council but what has it done about it? Nothing

From a FOI on the whatdotheyknow site, on the 21st July 2015, the Council commented that the signs were "favourable" in this location and "in line with current policies." What is even more incredulous is that on the 28th March 2014, a letter stated "I can advise you that for the purposes of this enforcement case the information provided on the signs is in line with condition 5 on planning application 10/0178 and the section 52 agreement for the site (dated 30th July 1986) and as such I am closing this enforcement case"

There are two forms of charges at a car park
(1) The hourly charge to park, and
(2) The charge for being in breach of the terms and conditions of use of the car park.
The Planning Condition drew no distinction between (1) and (2) and was widely drafted to encompass all charges at the referenced car parks.

This planning condition and the s52 agreement were put in place for planning reasons. The need for charges being "no less onerous" is there for planning reasons. The actual charge of £85 is nothing to do with planning considerations but the business model of ParkingEye.

So, this now begs a question as to what the Council is going to do in relation to this breach of condition and the s52 agreement? There are a number of options
1. An injunction to prevent a continuation of the breach of the s52 agreement
2. An enforcement notice, with a stop notice for the use of the signs to cease immediately
3. Demanding that Morrisons repay to all motorists who have paid money to ParkingEye the difference.
4. The Council itself removing the signs?
5. Nothing in line with its conduct for the past five years

What is Morrisons going to do. There are a number of options
1. Nothing in line with its conduct this past 12+ months
2. Repay motorists not just the difference between what other car parks charge and what ParkingEye has charged but the whole of any charges. After all the signage is there unlawfully (crime) and the ANPR does not have planning consent.
3. Publish a formal apology in the Westmoreland Herald
4. Remove the signs and cover up the ANPR until it has the management plan approved as required by its planning consent.

What can the public do?
1. If you have received a charge from ParkingEye put a complaint of maladministration into the Council and ask it to compensate you for its conduct in failing to enforce the planning conditions and the s52 agreement.
2. Put a complaint into Morrisons store manager and ask him/her why it is committing a crime in the middle of Penrith in order for its contractor to make money....or is Morrisons also making money out of this crime?
3. Shop at Sainsburys

Polyplastic

polyplastic

For anyone wishing to know the arguments for court whether defending a claim or in suing ParkingEye to recover monies paid the following may assist. You could also thrown in their breaches of the planning consent 10/078 (you can find it on the Eden Council planning register web page. It is condition 5 you need to quote. Also chuck in for good measure the breach of the s52 agreement in Penrith. Let ParkingEye try and go to court with clean hands over this!!!!


1. At all material times the Defendant was theoperator of a car park at [ ] at which the Claimant parked his vehicle on the [ ] day of [ ]. The Defendant claimed from theClaimant a parking charge of £[ ]. TheDefendant founded its cause of action, for allegedly parking in contravention ofthe terms and conditions, on the signage at the car park.

2. It was the Defendant’s claim that thesignage at the car park set out an invitation to motorists to enter into acontract to park and that the signage incorporated the terms and conditions ofthat contract.

3. By virtue of the provisions of Regulation30 of the Town and Country Planning (Control of Advertisements) (England)Regulations 2007 it is a criminal offence to display any advertisement withoutfirst having in place consent under those Regulations from the Local PlanningAuthority. The signage at the car park are advertisements for the purposes ofthe said Regulations and no such consent had been issued for the erection andretention of those signs at the time the Defendant parked his/her car.

4. At the time that the Claimant paid to theDefendant the sum of £[ ] by way ofdamages for an alleged breach of the terms and conditions as to parking he/shewas not aware of the criminal siting of the signs.

5. By virtue of Regulation 3 of the ConsumerProtection from Unfair Trading Regulations 2008 (the 2008 Regulations) a commercialpractice is unfair if it contravenes the requirements of professional diligenceand materially distorts or is likely to materially distort the economicbehaviour of the average consumer with regard to a product. By virtue ofRegulation 5 of the 2008 Regulations such conduct is an offence. It is averredthat a car park operator failing to secure, or that its client had secured, therelevant advertisement consent in accordance with the law before managing thecar park was acting without due diligence. In doing so the Defendant fellbelow the standards of a reasonably competent professional, having regard tothe standards normally expected in its profession. Further that by failing toadvise the Claimant of this fact, when demanding damages for an alleged breachof contract, it is averred that the Defendant was also acting with a lack ofdue diligence.

6. It is averred that the contract underwhich the Defendant demanded damages was unlawful, or, in the alternative, if deemedto be lawful, was unenforceable as a crime had to be committed to create itsuch that damages could not properly be claimed. The principle of exdolo malo non oritur actio applies. That is to say no Court will lend its aid to a man who founds his causeof action upon an immoral or an illegal act.

7. The Defendant is amember of the British Parking Association limited and as such has agreed to bebound by its Code of Practice. Regulation 5(3)(b) of the 2008 Regulations indicates that it is a misleading action wherethere is any failure by a trader to comply with a commitment contained in acode of conduct which the trader has undertaken to comply with.

8. The BritishParking Association Code of Practice at paragraph 2.4 indicates thus

When there isrelevant legislation and related guidance, this will define the overallstandard of conduct for all AOS members. All AOS members must be aware of theirlegal obligations and implement the relevant legislation and guidance whenoperating their businesses. Examples of relevant law and guidance within thissector are: It then lists specific examples and in particular“consumer protection law.”

9. On the 1stOctober 2014 the Consumer Protection (Amendment) Regulations 2014 (the 2014 Regulations)came into effect which gave consumers new rights. By virtue of Regulation1(3)(b), they expressly apply to all payments made, after the 1st October 2014,by a consumer to a commercial organisation. The Defendant caused the Claimantto make such a payment. The Regulations introduced a new definition to“Transactional Decision” into the 2008 Regulations (see Regulation 27B (2) asapplied by the 2014 Regulations) such that, for the purposes of this action, itnow means a decision taken by a consumer to make a payment to a trader for the supplyof a product.“Product” includes the settlement of actual or purported liabilities and which the Defendantrecovered from the Claimant by way of alleged damages. (seeRegulation 2(9) of the 2014 Regulations). The 2014 Regulations apply to a“prohibited practice” being a misleading action under Regulation 5 of the 2008Regulations.

10. As a consequence of the provisions of the2014 Regulations, and the criminal conduct in relation to the terms and conditionsof the alleged contract, it is averred that the damages claimed by theDefendant and paid by the Claimant was prohibited at law as a matter of publicpolicy.

[If the damages were paid following courtaction and ParkingEye failed to advise the court of the criminal conduct theremay then be need for additional clauses to address that point, so as to seek torecover all costs of that hearing.]

Loss

11. By virtue of the Defendants conduct theClaimant has suffered the following losses

£[ ]being the alleged damages paidto the Defendant

[£[ ]being the costs ofdefendant the claim by the Defendant in the [ ] County Court]

And the Defendant claims that sum from theDefendant.

12. The Claimant also claims interest pursuant to Section69 of the County Courts Act 1984 on the amount found to be due to the Claimantat such rate and for such period as the Court thinks fit and Costs

STATEMENT OF TRUTH I believe that the facts stated in these Particularsof Claim are true

Polyplastic

Johno100

polyplastic wrote: »

What is Morrisons going to do. There are a number of options
1. Nothing in line with its conduct this past 12+ months
2. Repay motorists not just the difference between what other car parks charge and what ParkingEye has charged but the whole of any charges. After all the signage is there unlawfully (crime) and the ANPR does not have planning consent.
3. Publish a formal apology in the Westmoreland Herald
4. Remove the signs and cover up the ANPR until it has the management plan approved as required by its planning consent.

There's a fifth option, submit a retrospective planning application, have that agreed on the nod by the council and continue as before.