PE Penrith Morrison's Unlawful Signage

The_Slithy_Tove

Johno100 wrote: »

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

As has been pointed out (either here or on Pepipoo) that is not an option for this kind of application, i.e. advertising planning. You cannot ask for a retrospective application.

bazster

The_Slithy_Tove wrote: »

As has been pointed out (either here or on Pepipoo) that is not an option for this kind of application, i.e. advertising planning. You cannot ask for a retrospective application.

It is effectively what happens though. Councils will typically invite an application for advertising consent, approve it, and state that a prosecution for the offence is not in the public interest.

polyplastic

Whilst s73A of the Town and Country Planning Act makes a specific provision for a retrospective planning application, the Town and Country Planning (Control of Advertisement) (England) Regulations 2007 have no provisions for retrospective applications or consents. Consent may only be granted from the date granted and an unauthorised advertisement remains unauthorised - and its display remains a continuing criminal offence up to the date of the consent.

Guidance from central Government indicates that there is no point in initiating a criminal prosecution if a consent would be forthcoming and I can see the sense in that in light of the limited factors that Planners are required to take into account when considering an consent application. However, that same guidance indicates that if the breach of advertisement consent is flagrant and continuous then action should be taken. ParkingEye commits the same sin up and down the Country. Morrisons in Skipton also has not bothered to seek advertisement consent or planning permission for its ANPR cameras. Have we serial planning offenders here? In Penrith we have clear examples of flagrant and continuing breaches of planning control.

The Planners asked repeatedly for an application for advertisement consent and it was not until a threat of prosecution was raised was one submitted. It turned out to be invalid and was rejected. Morrisons Playing games?

The Planners only have six months in which to prosecute anyway and time runs from when they first became aware of the breach of advertisement control. (Localism Act 2011). They knew of the signage back in March 2014 but claim that they only knew in June 2014. (A FOI confirms that). By the time Eden Council threatened a prosecution it was about six months too late to actually prosecute! If the Council is not aware of the very laws they have to enforce is that another example of maladministration?

Anyway, Morrisons/ParkingEye can't be prosecuted but it continues to operate its parking management in criminal circumstances. Wonder if they employ any PR firm.

Enforcement notices could be served and a failure to comply with those is a crime and a prosecution could then follow. Eden has had god only knows how long to serve an enforcement notice but hasn't bothered. It seems to prefer to let the breach continue to the continued detriment of the Council Tax payers of Eden District.

Are Council Tax Payers entitled to a better service than this? If they sit back and do nothing - No!

The Council's complaints address can be found on its web site. Morrisons do not appear to provide any email address for their complaints. You go to the top by emailing the head persons PA [EMAIL="anne.keith@morrisonsplc.co.uk"]anne.keith@morrisonsplc.co.uk[/EMAIL]

Polyplastic

Northlakes

When challenging a PCN at this car park anyone caught out will owe a debt of gratitude to the research work carried out by 'Polyplastic'.

It is very worrying that planning officers don't appear to have had the necessary training in dealing with companies such as PE or Morrison's and were soon trampled on. Unfortunately the officers have very little or no knowledge of contract law and were unable to detect the differences between the original planning condition and the contract offered by the unlawful PE signage.
I'm not sure that certain officers were even aware of the 2007 Advertisement Regulations and in this authority enforcement was looked on as a 'Cinderella' activity of little consequence.

'Polyplastic' is correct in his/her analysis and until such time as the advertisement consent is approved and a management plan submitted any supposed parking contract is either unenforceable or void at construction and needs challenging.

polyplastic

Eden Council's Planning Committee this week is considering some unnamed offender against the advertisement regulations. I guess that it is Morrisons. Why is Eden Council going to exclude the public from this meeting so that it can consider matters behind closed doors.?

The Council sat on its hands whilst Morrisons/Parkingeye broke the law and committed a crime. The Council sat on the banks of the River Eamont and fiddled. Now the Council doesn't want you, the Council Tax Payers, to hear the whys and wherefores. Is it simply going to let ParkingEye run over the Council Tax Payers and operate a parking regime in contravention of Planning Conditions?

Yes Morrisons has been in breach of Planning Control for five years as well as operating a parking regime based on a crime

Justice must be seen to be done....but apparently not in Penrith.

Could it be that the Council has made such a mess of implementing its enforcement policy that it wants to keep it all very quiet?

Perhaps motorists in Penrith should turn up at the Town Hall on Thursday to see

See here
https://democracy.eden.gov.uk/documents/g1765/Agenda%20frontsheet%2017th-Sep-2015%2009.30%20Planning%20Committee.pdf?T=0

Item 10

Paragraph 1 that the Council is relying on to exclude the public means that the report mentions a named individual. Who and why?


Polyplastic

Johno100

Not going to say I told you so, but........

Johno100 wrote: »

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

polyplastic

Well no actually Johno 100. Their application for advertisement consent was withdrawn as it was invalid. The agenda item for Committee consideration is all about what, if any, enforcement action should be undertaken.

Morrisons should have obtained approval to their car park management plan back in 2010 and they didn't bother. That is a breach of their planning consent and the Council does not appear too bothered about considering enforcement action over that breach of planning control.

If the Council has not approved the car park management plan how can they approve the terms in any car park signage anyway? Isn't it all back to front?

Remember that under the Localism Act 2011 no prosecution can be taken for a breach of advertisement control once six months has passed since the Council first knew of the breach. The Council admits that it first knew of the offence back in June 2014.

So they can't prosecute but there are other options.

ParkingEye is a subsidiary of Capita. The Council works under contract arrangements with a couple of other subsidiaries of Capita but that has no significance to the issues

Polyplastic

Northlakes

Eden District Council would be in a insidious position if it failed to enforce against unlawful signage.
We have an officer of the Council stating the signage is unlawful and yet if they fail to act it surely opens the floodgates to claims from motorists caught by illegal cameras and signage.

g0wfv

This is pretty much the basis of one of the arguments in my current appeal for a PE site in Grantham, although I have tackled it from a slightly different angle ...

Research into any relevant planning permissions using information freely available on South Kesteven District Council’s (SKDC) website have turned up no applications by ParkingEye, the landowner or management agency in relation to any parking signs; the only applications on file are those from the original developer for the erection of an illuminated totem sign and the tenants (retailers) occupying the units for signage and advertising attached to the units relating to their own businesses (Annex .

In addition the keeper’s partner contacted SKDC. A request was made in order to ascertain the ownership of the site, to find any planning (or other) permissions relating to this site and in particular to the signage under the Town and Country Planning (Control of Advertisements) (England) Regulations 2007. An official at the planning department stated that no such application had been received (Enclosure 1). I therefore assume if no application has been received, then no ‘express consents’ can have been granted. I further assume that ParkingEye have erected these signs by claiming ‘deemed consent’ thus …

Deemed consent for the display of advertisements

6.—(1) Subject to regulations 7 and 8, and in the case of an area of special control also to
regulation 21, consent is granted for the display of an advertisement of any class specified in
Part 1 of Schedule 3, subject to—

(a) the standard conditions; and

(b) in the case of any class other than Class 12, the conditions and limitations specified
in that Part in relation to that class.

(2) Part 2 of Schedule 3 applies for the interpretation of that Schedule.

Part 1 of Schedule 3, as stated lays out the classes of signs. I would argue that ParkingEye’s signs fall under Class 2A …

Class 2 Miscellaneous advertisements relating to the premises on which they are displayed

Description 2A. An advertisement displayed for the purpose of identification, direction or
warning, with respect to the land or building on which it is displayed.

Conditions and 2A.—(1) No advertisement may exceed 0.3 square metre in area.
Limitations
(2) Illumination is not permitted.

(3) No character or symbol on the advertisement may be more than 0.75 metre in
height, or 0.3 metre in an area of special control.

(4) No part of the advertisement may be more than 4.6 metres above ground level,
or 3.6 metres in an area of special control.

I personally measured ParkingEye’s signs on site which are 900mm x 700mm. This equates to an area of 0.6m2 which is in breach of the Part 1 of Schedule 3 of the Town and Country Planning (Control of Advertisements) (England) Regulations 2007.

The British Parking Association code of practice states the following:

2.4 When there is relevant legislation and related guidance, this will define the overall standard of conduct for all AOS members. All AOS members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses.

This represents a clear breach of the BPA’s Code of Practice. I would further argue that any non-compliance with their AOS’ code of practice breaches their KADOE contract with the DVLA thus nullifying their claim to "Reasonable Cause" under which keeper details are requested. This contract states ...

A6. Membership of an Accredited Trade Association

A6.1. The Customer shall at all times be a member of a DVLA Accredited Trade Association (“ATA”) and maintain membership of the ATA and comply with the ATA’s Code of Practice or Conduct.

The Consumer Protection from Unfair Trading Regulations 2008 is also applicable in that at 5-3-b it states …

5.—(1) A commercial practice is a misleading action if it satisfies the conditions in either paragraph (2) or paragraph (3).

…(3) A commercial practice satisfies the conditions of this paragraph if—
…(b) it concerns any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with, if—

(i) the trader indicates in a commercial practice that he is bound by that code of conduct, and

(ii) the commitment is firm and capable of being verified and is not aspirational,

and it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise, taking account of its factual context and of all its features and circumstances.

I put ParkingEye to strict proof that any legislation, regulations and codes of practice have been strictly adhered to in this case through the provision of any planning and/or advertisement consents sought from the relevant authorities and the provision of their unredacted KADOE contract with the DVLA.

If satisfactory proof is not forthcoming any signage that ParkingEye rely upon should be deemed to be unlawful therefore unable to form a contract with any third party. Furthermore, keeper details should be deemed unlawfully sought, and as such keeper liability could not have been claimed in the first instance.

I would also argue that the ex turpi causa rule is in play; any legal rights ParkingEye are claiming in this instance are nullified by the fact that they have failed to abide by the legal practices required of them in the first instance.

NOTE: ex turpi causa is another way of stating ex dolo malo non oritur actio

FURTHER EDIT: This appeal is still being formulated, so if anyone wants to add more ammo to it or wishes to change the wording to make the argument flow more logically or indeed I've forgotten anything, feel free to point me in the right direction!

The_Deep

Ex turpi causa?