Planning rules for car park signs

Umkomaas

Ex dolomalo non oritur actio

@LoC - I've seen you use that phrase previously. Does it differ in any way from ex turpi causa non oritur actio, which is much more frequently quoted on parking forums.

That said, it's not so far been a showstopper, as in the small number of court cases where it has been used, the judge has commented to the effect that if the LA can't be bothered enforcing it in the criminal court, why should he (she) get involved at the small claims court level.

I think it's more an 'add on' to highlight PPCs' blatant disregard for the rule of law, than a major point of defence on which to rely. It's no trump card, IMHO.

Timothea

The Latin maxim ex turpi causa non oritur actio refers to a legal doctrine that no action may be founded on illegal or immoral conduct. This maxim applies not only to tort law but also to contract, restitution, property and trusts. Where this maxim is successfully applied, it acts as a complete bar on recovery by the party who acted illegally or immorally. This maxim only applies in the civil courts and does not require the illegality to be proven in advance.

District judges seem to be reluctant to apply this doctrine. However, a properly argued defence based on ex turpi causa non oritur actio should succeed if the illegality is central to the formation of the contract. This will often be the case when a contract is offered and accepted based on illegal signage.

In the absence of relevant case-law, a prerequisite to such a defence would be to obtain confirmation from the local planning authority that the signage was illegal and that enforcement action has been or is being taken against the PPC.

Umkomaas

@Timothea - yes I did know that, but I was interested in whether there was a material difference between 'ex turpi....' and 'ex dolomalo......' and in light of 'ex turpi' (so far) being a bit of a damp squib, whether 'ex dolomalo' might have better effect.

Loadsofchildren123

uhhhhh..... sorry I have no idea!!!!


Here's what I put in my Skeleton (and sorry, malo and non are separate words, the space got deleted when I copied and pasted earlier using a home pc which likes to keep me on my toes by randomly deleting spaces between words):

Ex dolo malo non oritur actio

• The Claimant is not entitled to rely on an illegal or immoral act in order to profit from it, pursuant to the doctrine ex dolo malo non oritur actio. In this case, there are three acts which are illegal and/or immoral: the installation/display of the Claimant’s signage on the Land/Site, trespass and the Claimant’s disregard of Regulations which apply to it and of the BPA CoP. The first is a criminal act, the last two, while not criminal, are undoubtedly immoral and should not be sanctioned by the court. Minor infringements might be forgivable but the wholescale, multiple breaches by the Claimant, and its ignorance of the laws which apply to it, should not be forgiven, particularly when it is obliged to familiarise itself with and follow the law by paragraph A2.4 of the CoP (including consumer law, contract law, and trespass).
• The rationale for the doctrine is set out in the early case of Holman v Johnson 1775) 1 Cowp 341 where Lord Mansfield said:
  “The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this; ex dolo malo non oritur action "no action arises from deceit". No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own standing or otherwise, the cause of action appears to arise ex turpi causa "from an immoral cause", or the transgression of a positive law of this country, there the court says he has no right to be assisted.”
• The principle was reaffirmed in RTA (Business Consultants) Ltd v Bracewell [2015] EWHC 630 (QB) (12 March 2015) where, at paragraph 34 of the judgment the above passage was cited.
  
  The Court’s attention is also drawn to Andre Agassi v S Robinson (HM Inspector of Taxes)[2005] EWCA Civ 1507. Whilst not wholly aligned to the issues in this case it has been produced because of the principle it extols that no one should profit from their unlawful conduct. The Court’s attention is drawn to paragraph 20 of the judgment
  “It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful”.
  Paragraph 28 continues –
  “cannot on any view recover the cost of activities performed by Tenon which it was not lawful for them to perform.”

I actually pinched this from a counsel-drafted Skeleton argument which was posted on Parking Prankster's blog - it was used in a set aside application. I thought the long version, with all the case law, had a chance of success. It is lazy judging to just say "well if the counsel are not doing anything about it then I should ignore it too" - it's either an unlawful act or it isn't. I think with the case law a judge MAY have paid some attention to it, and I had a confirmatory email from the council confirming that there was no permission and they were looking into it.

If you read Lord Mansfield's bit it seems that the ex turpi... ex dolo malo... difference is just grammatical. I took German rather than Latin at school so I am a Latin dunce.

But I agree with Umkomaas that this point is an add on rather than a slam dunk.

Loadsofchildren123

Miscellaneous advertisements relating to the premises on which they are displayedDescription2A. 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 Limitations2A. —
(1) No advertisement may exceed 0.3 square metre in area.
(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.

Loadsofchildren123

https://www.gov.uk/guidance/advertisements




Schedule 1 of the Regs lists ads that don't need consent.
Schedule 3 lists ads that have deemed consent - the text in my last post is from Sched 3

Loadsofchildren123

0.3 metre is very small. Think of a ruler (not the 6" variety). Virtually all parking signs are bigger so will not have deemed consent.

Loadsofchildren123

And 2A(1) says 0.3m "in area" so presumably that makes it much smaller than 30cms long/wide?
But what's 2A(3) all about - it refers to characters not being more than 0.75m, well how can they be up to that size if the sign can only be 0.3m?
The wording makes no sense. Maybe (3) is meant to say 0.075?

Timothea

Loadsofchildren123 wrote: »

And 2A(1) says 0.3m "in area" so presumably that makes it much smaller than 30cms long/wide?

It's 0.3 square metre, e.g. 50cm x 60cm or 40cm x 75cm or 30cm x 100cm. That's bigger than A2 paper size, which is equivalent to four A4 sheets, so big enough for some parking signs.

In fact, A0 paper size is defined as a golden rectangle with an area of 1 sq.m, so A1 is 0.5 sq.m, A2 is 0.25 sq.m, A3 is 0.125 sq.m and A4 is 0.0625 sq.m.

DoaM

1 sq metre is 100 x 100 cm. So as above 30 x 100 cm is 0.3 sq metre.

I haven't looked, but ... is there not also something about the total area of all signs? i.e. each sign may be no more than 0.3 sq metre, but if the number of these signs means that the total area exceeds the maximum allowed then a breach would occur?