Free Parking at ASDA Fleetwood until ParkingEye get their act together

keepitlegal

Quick update.
The enforcement officer eventually gave me the email address of his line manager, emailed her yesterday, unfortunately I got an automated reply saying she is out of the office until Tuesday 3rd January 2017, I look forward to her reply, shame this has to drag on, until then Merry Christmas and a happy new year to you all.

Nigel_Byrom

Car park tariff boards, terms-and-conditions signs and other large signs are classed as advertise-
ments and normally require planning consent [Town & Country Planning (Control of Advertisements)
(England) Regulations 2007 or, iu Wales, the equivalent 1992 regulations]. A breach of s.30 of the
2007 Regs or the Welsh equivalent is a criminal offence, although government policy is not to
prosecute but to invite the advertiser / landowner to submit a planning application to normalise the
situation. If the signs are not either removed or approved there is a risk of enforcement action.

The Planning Inspectorate, a government body, tells me that ".....consent would run from the date a
permission was obtained." Meanwhile, Planning Aid England (Royal Town Planning Institute) says:
".....if an advert is granted retrospective consent, that consent only applies from the date of the
decision and up to that date the sign would have been unlawful." Next, the planning profession's
journal, Planning Resource (Advertisements Q & A DCP Section 30), states: "The Control of
Advertisement Regulations have no provisions for consent to be granted retrospectively ; it runs
from the date granted and an unauthorised advertisement remains unauthorised - and its display is
therefore a criminal offence - until that time." and ".....the enforcement notice route, unless
supported by a stop notice, merely plays into the advertiser's hands, enabling the income derived
from the site to accrue pending determination of the inevitable appeal."

There are two House of Lords judgments that may assist : 1) Kerr v. Marquis of Ailsa [1854]
UKHL 1_Macqueen_736, where the Lord Chancellor held : ".....unless there be something in the language, context, or objects of an Act of Parliament showing a contrary intention, the duty and the
practice of Courts of justice is to presume, in conformity with the adage of Lord Coke, that the
legislature enacts prospectively and not retrospectively." and 2) Wilson & Ors v. Secretary of
State for Trade and Industry [2003] UKHL 40, where at 186 is stated : "At common law there is
a presumption that a statute does not have "retrospective" effect."

Then in Maxwell on The Interpretation of Statutes, 12th ed (1969), p 215 is the oft-quoted:
".....It is a fundamental rule of English law that no statute shall be construed to have a retrospective
operation unless such a construction appears very clearly in the terms of the Act, or arises by
necessary and distinct implication."

For some months I have been conducting forensic analysis of the planning status of scores of the
most controversial private car parks in England and Wales. In every case I have contacted the local
planning authority (LPA) to enquire how they interpret retrospective advertisement consent, and
of the first 40 replies 38 confirmed that advertisement consent runs from the date of the decision
and cannot be back-dated. In the remaining two cases the decision did not expressly state that
consent was retrospective.

The business model of some car park operators often involves ignoring the local planning system
(an unnecessary financial overhead) and hoping to get away with it. Needless to say, angry
members of the public, through FOI requests or direct complaints, have demanded that LPA's
take action. The operators then typically put in an extremely, totally watertight application, usually
for both ANPR cameras (under the 1990 T & C Planning Act) as well as signage (under the 2007
Regs or Welsh equivalent). In every case I have investigated, the LPA rubber-stamps the
application - there are only two grounds for refusal, public safety and amenity.

A typical site has cameras and signage erected in, say, 2012 but doesn't get planning consent until
2015. So for several years the operation may have been technically unlawful, and in the intervening
years many hundreds or even thousamds of PCN's may have been issued unlawfully. However, the
courts may well decide that although some aspects of the situation may be unlawful the contract was
capable of being operated lawfully. However all operators using the Protection of Freedoms Act
2012 to pursue errant motorists must join one of the two alternative ATA/AOS schemes, and both
schemes require all members to operate within the law (and this inevitably includes planning law).
This is set out in the relevant Code of Practice (CoP), as updated. Importantly, the Supreme Court
in ParkingEye v. Beavis [2015] UKSC 67 held, at 111, that: "..... while the Code of Practice is not
a contractual document, it is in practice binding on the operator since its existence and observance is
a condition of his ability to obtain details of the registered keeper from the DVLA." Thus, a failure
to obtain planning consent is a failure to abide by the CoP and a loss of the right to obtain keeper
details. This may have serious implications under data protection legislation.

Finally, most landowner / operator contracts I have seen require the landowner to obtain all
necessary permissions, including planning permission, for the installation of an ANPR system on
private land. On dozens of sites, possibly hundreds, planning consent was not applied for. In
such a case the operator will blame the landowner for this failure, and will claim that the operator
cannot apply for planning consent. This, however, is not true and increasingly we see the operators
themselves applying, albeit retrospectively, for the consent. Look out for the clause which states
that having all necessary permissions is a condition precedent (as well as concurrent and
subsequent) for the installation of the signage. If this clause is breached, the signage is unauthorised
and the operator has no authority to manage the site. Until this authority is in place, all historical
PCN's issued at that site should be refunded, with interest. Let's get applying!

Coupon-mad

Interesting first post.

keepitlegal

Coupon-mad wrote: »

Interesting first post.

A very informative first post, thank you.......thank you very much. Obviously an educated man/woman.

Umkomaas

While there have been attempts to persuade LAs to prosecute PPCs, there have been none willling to take it on, meekly approving on receipt of advertising/planning application. Liverpool John Lennon Airport is a case in point where years of prevarication by the LA still continues.

I think the strategy should in future be that the LA is asked for categoric confirmation that consent/planning authority did not exist prior to (xx/xx/xxxx date) which should then be used as evidence for a claim against the PPC for any charges paid prior to that date. Use of non-compliance with the BPA CoP and/or DPA abuse would be the basis for the claim.

beamerguy

ParkingEye signs gone at ASDA Fleetwood

As today's photograph shows, the signs have now all gone. ParkingEye and ASDA did not have advertising consent to display the signs.

http://parking-prankster.blogspot.co.uk/2016/12/picture-of-week-parkingeye-signs-gone.html

Castle

beamerguy wrote: »

ParkingEye signs gone at ASDA Fleetwood

As today's photograph shows, the signs have now all gone. ParkingEye and ASDA did not have advertising consent to display the signs.

http://parking-prankster.blogspot.co.uk/2016/12/picture-of-week-parkingeye-signs-gone.html

Good news, hopefully the ANPR cameras are not working.

keepitlegal

beamerguy wrote: »

ParkingEye signs gone at ASDA Fleetwood

As today's photograph shows, the signs have now all gone. ParkingEye and ASDA did not have advertising consent to display the signs.

http://parking-prankster.blogspot.co.uk/2016/12/picture-of-week-parkingeye-signs-gone.html

Fantastic news, helps strengthen my case for planning department intervention.

keepitlegal

Castle wrote: »

Good news, hopefully the ANPR cameras are not working.

And if they are still working how can the parking rules be enforced?

pappa_golf

only cancel charges when challenged?