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Wednesday, 23 March 2016

ParkingEye and planning consent (or lack thereof)

[Guest Blog]

As we all know ParkingEye just doesn’t bother to comply with the advertisement regulations to obtain consent BEFORE it erects its signs and that is a criminal offence under regulation 30 of the Town and Country Planning (Control of Advertisement)(England) Regulations 2007.

When challenged on this some time ago the BPA defended its Member’s criminal conduct by an email of the 4th August 2014 from Mr Peter Beasley.

This provided a number of interesting explanations -

1. ParkingEye could not legally apply for advertisement consent – (Comment: then we find that it has been doing so for each Planning Authority that now requires such an application.

2. Its the landowners fault. (Comment - Yes they blame their client )

3. Planning Authorities won’t take any action so we may as well wait until they complain and then put an application in. (Comment: Ahh if only we had the luxury of picking and choosing which crimes we will not commit and which we will)

Now we have an even better excuse. Here is an extract from  an email of the 9th March 2016 from the Charity that owns the Moorgate Retail Park in Bury (no advertisement consent nor planning permission for their cameras.)


“Parking eye have advised that the displaying of signs which highlight the terms and conditions of use of the car parking facility at the retail park is a legal requirement for private car parks.

As a responsible operator, if they want to ensure that motorists abide by rules concerning, for instance, how long they may stay and how much they will be charged, they must display those conditions under consumer protection legislation.

As far as committing a crime at the site goes, Parkingeye recently sought advice on the topic and they have been advised independently that due to the nature of the signs and their purpose, they  are in the position that, given that the displaying of such signage is an obligation under the law, it will be exempt from normal planning protocols on advertising consent.

Because of the above, Parkingeye are of the view that no crime is being committed in this regard.”

So the latest is that as the PoFA requires them to have signs they don’t need to comply with the 2007 Advertisement Regulations.

Comment -
1. There is nothing in the PoFA which indicates that it overrides all other legislation.
2. PoFA requires ParkingEye to obtain registered keeper data but that does not mean that Regulation 27 of the Road Vehicles (Registration and licensing) Regulations 2002  does not apply – ask the DVLA
3. Can all planning Authorities up and down the land be wrong

Then we have to ask ourselves why does a Charity take its legal advice from ParkingEye. It is required by law to take its own independent legal advice.

Shall we wait and see what other tripe ParkingEye come up with to justify its failure to comply with the law?

Happy Parking

The Parking Prankster



36 comments:

  1. It looks to me like the advertisements may fall within the Class F exception listed in Schedule 1.

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    Replies
    1. erm….no. Pofa sch 4 grants a right for the creditor to recover parking charges from the RK, and that's it. There's nothing in there about an obligation to display signs so class F will not apply.

      Besides, planning authorities (when they can be arsed) correctly decide that consent is needed. See this one from the famous Barrow case (famous here anyway),

      http://www.barrowbc.gov.uk/papps/temp_blobs/COMM_2014_0812.pdf

      Page 6, point 6 clearly sets out that the unauthorised display of an advert is a criminal offence subject to prosecution in the courts.

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    2. There is a clear argument that Paragraph 2(3) does impose that obligation.

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    3. Which raises a question...para 2(3) would only impose an obligation if the operator wished to use POFA to establish keeper liability. Many operators don't bother with POFA. In some sites, POFA does not apply (eg byelaws). So even if 2(3) does apply in some cases, for those operators and those sites, there is no obligation.

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    4. This comment has been removed by a blog administrator.

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    5. Class F would not assist

      1. The legislation does not require signs but indicates that if parking enforcement companies wish to rely on the legislation then they should have signs. So the decision to have signs rests with the operator and not Parliament.

      2. class F has the limitation that signs that do not meet schedule 3 size limitations are not permitted by this class. ParkingEye's signs are too large

      Size matters

      In understand that Bury Council's external auditors are now investigating the Council's conduct over ParkingEye's signs as the Council does not appear to have lawfully given consent. The Council appears to have relied upon the 1992 advertisement consent regs which no longer exist. Neither did the Council apply the mandatory conditions required by the 2007 Regs. It rather looks like all adverts in the Bury area since the 2007 regs came into effect have not been lawfully sanctioned. Still ParkingEye have a few other sites in the Bury area where they haven't bothered with advertisement consent so the Council now has ample opportunity to get it right.

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    6. I cannot agree with that interpretation I am afraid.

      Class F deals with Advertisements required to be displayed by "... any condition imposed by any enactment on the exercise of any function".

      In order to exercise keeper liability it is a condition under POFA that you must display signs on site. It appears to me to fall within Class F, though I note the comments with regard to Schedule 3 size limitations.

      Are you really arguing that Parking Eye should make their signs smaller???

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    7. Unfortunately, having carefully read the legislation and the guidance, I cannot agree that PPC signage falls under Schedule 3 either. This means that "the size, height, and number of advertisements displayed shall not exceed what is necessary to achieve the purpose for which the advertisement is required."

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    8. Not arguing that they should make their signs smaller at all. I am merely saying that for their signs they need advertisement consent as so many Planning Authorities up and down the country keep telling them.

      Having been told over and over again that they must have advertisement consent isn't it surprising that they simply can't be bothered to undertake an audit of all of their sites and submit applications where there should be consent?

      Government guidance indicates that for serial offenders there should be prosecutions. Once prosecuted the Local Authority can then apply to the Magistrates for a confiscation order, under the Proceeds of Crime Act, to take from them all of the parking charge income they have derived from their crime. Wouldn't you think that Councils would find that extra income useful? After all they can keep 37% of that income.

      ParkingEye can't even be bothered to apply for planning consent for their cameras. So they collect personal data without having in place the lawful permissions that are required.

      Odd that those who commit crime complain if someone parks for a couple of minutes longer than he should.

      More faces than the Town Hall clock

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    9. "Odd that those who commit crime complain if someone parks for a couple of minutes longer than he should."

      ..........or fail to display a free ticket that covers their free parking............. or input the letter '0' instead of zero............ or stop at a barrier............. or...............sing along everyone, you all know the words :(

      I deliberately typed zero instead of the letter 'O' above. I owe Parking(sh)Eye(sters) £100 LOL

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    10. I'd suggest that the PPC's signs would fall under Class 2B of Schedule 3 namely:-
      "An advertisement relating to any person, partnership or company separately carrying on a profession, business or trade at the premises where it is displayed."

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    11. 2A seems a more natural fit to me

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    12. Doh....their signs don't fit anywhere, apart from i nthe fantasy world of ParkignEye, and that is why Planning Authorities keep telling them that they need to apply for consent. For example

      Cambridge City Council (Beehive Centre);
      Eden District Council (Morrisons Penrith);
      Bury Council (Moorgate Retail Park; Woodfields Retail Park; DW Fitness Club);
      Stoke on Trent City Council (Holiday Inn);
      East Staffordshire Borough Council (Queens Hospital Burton On Trent; Starbucks Uttoxeter);
      Copeland Borough Council (Morrisons Whitehaven);
      Leeds City Council (Morrisons Wetherby);
      Barrow in Furness Borough Council (Hindpool Retail Park – both parts);
      Chelmsford City Council (Riverside Retail Park);
      Bassetlaw District Council (Worksop Priory Shopping Centre);
      Craven District Council (Morrisons Skipton)
      Neath Port Talbot County Borough Council (Morrisons Neath)
      Norwich (Riverside Retail Park)
      Mansfield (St peters Retail Park)

      and so it goes on and on and on

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    13. Signs in Schedule 3 still require consent under certain circumstances so the fact that councils have told them they need to apply for consent doesn't negate the fact that they may belong to a class in Schedule 3.

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  2. I think they should still apply for exemption though

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    Replies
    1. You don't apply for exemption....your signs are either exempt or they require a specific advertisement consent.

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  3. PE are having to apply for retrospective consent in Worksop, the Priory shopping centre, a real money earner

    http://publicaccess.bassetlaw.gov.uk/online-applications/applicationDetails.do?activeTab=neighbourComments&keyVal=O28C9XCSI6Y00

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    Replies
    1. Although advertisement consent can be applied for
      retrospectively, any such consent subsequently
      granted only runs prospectively - until then the advert remains unlawful. This is not a get-out-of-jail-free-card.

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  4. Have to say that in terms of the great fight-back against PPCs I think arguing about planning permission is rather a waste of time. Neither local councils nor magistrates courts are interested, and the likes of ParkingEye are hardly going to be losing sleep over the occasional need to make a planning application which they know full well will be passed without a murmur.

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    Replies
    1. Great idea! Let's all follow PE's example, revert to anarchy and just ignore any law if it doesn't suit us. Don't you think that ParkingEye and others of their ilk have caused so much misery to law-abiding citizens and shown a complete lack of morality in so many cases that they must be challenged every time they are shown to be clearly breaking the law?

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    2. I think it's a case of train your fire where it will really hurt them - name one example of a PPC being refused permission for signage or ANPR - I've never heard of one. I believe very strongly that there are only two avenues that make any real difference (1): pressuring government as Barry Beavis has attempted to do through his petition; (2): putting the screws on the people who sign the contracts with the PPCs in the first place. No amount of appeals to Popla or winning the occasional court case is going to make any more than the tiniest of dents in the PPC industry.

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    3. Well Lancashire Trading Standards has said that it is to have a word with ParkingEye over their unlawful conduct in this regard under powers they have in the Regulatory Enforcement and Sanctions Act 2008 as amended by the Enterprise and Regulatory Reform Act 2013. So ParkingEye is on their radar.

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    4. So what do you propose that people should do? Just accept the PCN or actually use the law to fight the charges. Just because no planning application has been refused, as far as you know, doesn't mean the PPC shouldn't fulfil their legal responsibility to apply before they place the signs. The more people are aware of the requirements for Planning Permission then the more appeals might be made and are successful. The tiny dents may become larger and make a noticeable difference to their conduct. The change from clamping to what we have now started out small but gathered momentum.

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    5. Let us not forget that the BPA COP states that ParkingEye must comply with the law. So a breach of the COP is relevant in appeals. POPLA should be reporting back to the BPA and which, if it conducts itself properly (Sigh), will be applying penalty points to ParkingEye with enough referrals of this breach of the COP

      Let us not forget that in the Beavis Judgment it was mentioned that it was relevant for the court to consider compliance with the COP when considering the fairness of a term and that it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced. So cite that at your POPLA appeal

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    6. I like the cut of your jib Nimrod but the code is more what you would call guidelines than actual rules,

      https://twitter.com/BritishParking/status/710052515778322433

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    7. The Judges took a different view Ewan

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    8. Ewan, I do hope you are not calling PPC's pirates!

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    9. Certainly not peter. Pirates would be mortified if people thought of them as ruthless and unprincipled as parking weasels.

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  5. Ewan comments "Besides, planning authorities (when they can be arsed) correctly decide that consent is needed. See this one from the famous Barrow case (famous here anyway),

    http://www.barrowbc.gov.uk/papps/temp_blobs/COMM_2014_0812.pdf"

    Just have a good close look at that consent from Barrow

    1. It refers to the advertisement consent regs as 2008 when they are 2007

    2. It refers to conditions in specified paragraphs in Schedule 1 of the Regs and which do not exist in Schedule 1 of the 2007 Regs

    3. The conditions they have imposed are in the paragraphs in Schedule 1 of the 1992 advertisement consent regs

    4. The 1992 advertisement consent regs were replaced with the 2007 regs so they are not applicable

    5. The Planners in Barrow are over a couple of decades out of touch with the very planning laws they are supposed to enforce!

    6. The mandatory conditions for an advertisement consent, which have to be imposed under Schedule 2 of the 2007 regs, have not been imposed

    7. The advertisement consent does not appear to be legally valid

    Someone is on the ball https://www.whatdotheyknow.com/request/failure_to_issue_a_valid_adverti#outgoing-528398

    Are Barrow Planners incompetent or just helpful to the motorist?

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  6. Perhaps this is slightly off the theme but we stayed at a hotel (which is a listed building) in Durham city. Parking Eye "manage" the car park with ANPR cameras. After informing the reception staff that I would have booked a different hotel had I known about their complicity with PE I noticed that the maximum payable under the scheme was £X. Planning permission was given for £X-15 according to Durham city's planning department website. Is the alteration to a sign on a listed building likely to incur criminal proceedings to a greater extent than the usual planning consent infractions?

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  7. Maybe there needs to be a campaign to crowdfund a private prosecution for one of the sites where PE has been forced to apply for consent? Even when consent is awarded it is not retrospective, so the offence was still committed prior to consent being awarded, it's just that no prosecution has yet taken place. There may be a means to get other offences 'taken into consideration' in the single prosecution.

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  8. http://www.burytimes.co.uk/news/14404755.Row_over_controversial_parking_signs_rumbles_on_as_critics_claim_committee_was_wrong_to_allow_them_to_stay/

    Check out the comments at the end - A planning Authority not up to speed it seems

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  9. http://www.burytimes.co.uk/news/14404755.Row_over_controversial_parking_signs_rumbles_on_as_critics_claim_committee_was_wrong_to_allow_them_to_stay/

    Read this report and then scroll down to the comments. Seems that the Council can't bring itself to admit that it relied on the revoked regulations rather than the current ones. Perhaps they are also trying to be helpful to motorists?

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  10. Compliance with the BPA Code of Practice. Or lack of it anyway...
    Section 2.6 of the BPA Code of Practice states that there is an expectation that a member will keep to the law and act in a professional, reasonable and diligent manner. The use of signs and ANPR without planning consent is a criminal offence and the Code of Practice requirement has not been fulfilled in that respect.

    I think it's worthy of becoming an appeal point.

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  11. how about writing back stating that you have a £50 charge for dealing with written correspondence. Email £30 and telephone free. You then have an equally equitable charge for the contract that you have signed up to?

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