The great private car park planning approval scam

Guest blog from shuteyepark, from the Consumer Action group forums

In December 2013 my daughter received a Parking Charge Notice (PCN) from ParkingEye after over-staying a 2-hour free parking limit at Rivington Services (otherwise known as Bolton West Services) on the M61 Motorway.

When we received the PCN we carefully investigated the ANPR system on site and discovered that although the cameras had planning permission the associated signage did not have advertisement consent. The Council’s Enforcement Officer contacted the landowner and / or private parking company (PPC) and requested them to apply for consent for the signs, and this consent was eventually granted in April 2015. The planning documents stated that the signs had been erected in May 2011, i.e. some four years prior to receiving consent.

Having not received any of the original PCN papers due to problems with the post, my daughter found herself with a CCJ  which we attempted to have set aside. We were in court five times, what with adjournment, stays to await Beavis verdicts and then the set aside application itself.

At the final hearing in 2016 at the Bolton County Court we relied, you might think unwisely, on a defence that the signage was illegal.  ParkingEye’s Claims Handler, David Greenbank, although not attending the hearing, had submitted a Skeleton Argument containing a claim that they had been granted planning permission for the signs retrospectively. The judge found in favour of ParkingEye and anyway we had run out of time and he was anxious to move on to the next case (back-to-back parking cases).  We had evidence to prove our case, but weren’t allowed to present it.

Some time later I came across another case heard at Barrow County Court in May 2015 where again ParkingEye were Claimant.  Indeed the very same Claims Handler, this time in a Witness Statement bearing a statement of truth, made the same claim: that they had been granted planning permission retrospectively for the cameras and signage.

Then I came across a third case, this time involving the car park at Dovecot Street, Stockton-on-Tees and a CAGger known as ‘terrier82’ who on 11th November 2016 reported: “Lost in court today, said due to the retrospective application making it legal.”  It looks as if yet another judge had been persuaded by this retrospective signage planning permission scam. Tracing back through the ‘terrier82’ CAG thread to 29th June 2016 I found a copy of a Defence to Counterclaim Document indicating that the Claimant was once again ParkingEye. I wondered how many more cases they have won based upon false evidence? They didn’t get away with it at Crewe County Court in September when the judge found their evidence was “tantamount to perjury” (https://www.blogger.com/parking-prankster.blogspot.co. uk/2017/09/parking-eye-witness-tantamount-to-perjury.html). So at Bolton, at Barrow, at Stockton and finally at Crewe County Court a single PPC has tendered evidence that cannot be true.  Please send in your comments if you know of others.

Incensed by losing our case in court, and seriously concerned about possible miscarriages of justice, I set about investigating possible abuses of the planning system.  For several years retired solicitor Robert Ransome had done some sterling work in listing private car parking sites that lacked planning approval.

I decided to conduct a comprehensive forensic investigation into planning as it relates to private car parks. I have now investigated over 400 sites, including all the ‘usual suspects’.  The results are astonishing. At around three quarters of the sites I was unable to find advertisement consent for the parking signage. At almost all of the remaining sites advertisement consent applications were made for signs all of which were illegally in place. Usually these applications followed complaints made to the Local Planning Authority (LPA) by members of the public, councillors and in one case a solicitor.  The belated applications ranged up to 10 years post- installation, with an average of some 30 months. It was extremely unusual to find a single site where planning had been applied for in advance which, in most cases, we are all legally required to do.

Soon I discovered that over five or more years the PPCs have been playing a cat- and-mouse game with the LPAs.  Of the 400+ sites studied I found 60 where the LPA, almost invariably after receiving a complaint, directed or requested that the advertiser apply for planning permission and / or advertisement consent. Searching through vast numbers of planning registers I noted the criteria involved in private car park planning.

Meanwhile, I contacted scores of LPAs and asked whether planning approvals can be back-dated, because ParkingEye clearly purports that if a site didn’t have planning approvals these could always be obtained later.  To date, 133 LPAs have responded and almost without exception they state that ANPR cameras require planning permission (as land is being developed), and parking signs are classed as advertisements and normally require advertisement consent, a completely separate and parallel system to planning permission.

Almost invariably the LPAs consider parking signs each smaller than 0.3sqm in area as having ‘deemed consent’, and signs exceeding this size as not having deemed consent but requiring ‘express consent’ under Class 2, Schedule 3 of the Town and Country (Control of Advertisements) (England) Regulations 2007 (or the Welsh equivalent, the 1992 Regs).

ANPR cameras attached to buildings have deemed consent - e.g. under the Town and Country Planning  (General Permitted Development Order) 1995 - but cameras mounted on new, dedicated free-standing poles (as most ANPR cameras are) normally require planning permission. This planning permission can be applied for belatedly, and after four years unauthorised cameras are immune from enforcement (see, for example: Beehive Centre, Cambridge; Peel Centre, Stockport; and Welcome Break, South Mimms, Motorway Service Area).

The situation for advertisement consent is quite different.  Advertisements do not become immune from enforcement until 10 years after installation. Anyone who displays an unauthorised advert commits a criminal offence, and it is immediately open to the LPA to bring a prosecution in the Magistrates’ Court under s.224 of the Town and Country Planning Act 1990. The penalty on conviction is currently up to £2,500, and in the case of a continuing offence a further daily fine of up to £250 until the contravention ends. Where a LPA achieves a successful conviction for failure to comply with an enforcement notice they can apply for a confiscation order under the Proceeds of Crime Act 2002, to recover the financial benefit obtained through unauthorised development. This power is not used often.

Government policy, however, is that LPAs should not rush to prosecute, and the authorities have expressed concern about the financial risks of losing against large commercial concerns with deep pockets.  So what tends to happen when a PPC is detected as having unauthorised ANPR cameras and / or signs is that the LPA politely requests them to apply for the appropriate approval, which is almost invariably granted.  Only if an advertisement is considered to be detrimental to public safety or amenity can it be refused. Of the 60 sites where I found LPA enforcement against PPCs / owners,  55 complied with the enforcement deadline, which is normally 7 – 28 days.  At the remaining 5 sites the deadline was breached by one month (Aldi, Blaby; and North Tees Hospital), two months (Hindpool Retail Park; and Corner House Retail Park), and three months (The Range, Barrow). How ironic, that a PPC that pursues parkers / keepers for overstays of mere minutes can itself breach planning enforcement directions by months! Such hypocrisy!

PPCs have known since at least the end of 2012 that advert consent was required for their parking signage. Why, then, did they continue to flout the planning laws by failing to obtain approval for all other sites for at least the next five years?  As one Enforcement Officer put it:  “Having been aware that the signs at (XXXX) Retail Park were unauthorised I am surprised your company has not addressed other unauthorised signage at other locations within this borough, especially when criminal liability is attached to your flagrant breach of the Advertisement Regulations.”

So the first big question is:  Do private car park parking signs comply with the rules? Do they have deemed consent?  Answer: No, they almost always exceed the 0.3sqm area threshold.  The largest sign eligible for deemed consent would be around 550 x 550mm (area approx 0.3sqm), the sort of size we see occasionally in car parks as repeater signs. The Planning Portal states: “You may need to apply for advertisement consent to display an advertisement bigger than 0.3 square metres.....”  . Virtually all private car parks have signs larger than this threshold size, and most car parks have at least one large sign, e.g. at the entrance. And it only takes one large sign amongst many to break the rules. Some PPCs, e.g. ParkingEye, often have standard sizes of signs at their sites, e.g. 600 x 800mm = 0.5sqm area, and all of these require express consent from the LPA.

It is interesting to note that Riverside Retail Park (Chelmsford) did not have advert consent at the time Barry Beavis received a PCN there, but the issue was not raised by the defence.  (Footnote:  The LPA says that they would have granted planning permission and advert consent if an application had been made).

In the present study of 400+ sites, 305 (over 70%) appeared to have no advert consent whatsoever.   A further 98  (approx 25%) did not apply for advert consent until they were ‘outed’ by complaints from the public.  By that stage they may have been issuing parking charges for many years, even ten years. The average time of lacking consent was around 30 months, and many thousands of unauthorised parking charges may have been issued per site during that time. In total,  millions of victims may have been unfairly penalised. (In most of these cases it was ParkingEye that applied for the planning, despite their false claims that they were not able to apply).

The second big question is:  Can PPCs obtain advert consent retrospectively?  The answer is a definite “NO”. There is no such thing as retrospective advert consent. This is confirmed by virtually every LPA contacted. Space does not here permit a full recital of other evidence that supports this statement. However, in the Court of Appeal in the case of Andre Agassi  v.  S. Robinson (H. M. Inspector of Taxes) [2005] EWCA Civ 1507 there was a modern slant on the old dictum that nobody should profit from their unlawful conduct.  At [20] and [28] is stated that costs recoverable in litigation cannot include the costs of any activities that are unlawful.

Illegality defences were explored in the Court of Appeal in ParkingEye Ltd  v. Somerfield Stores Ltd [2012] EWCA Civ 1338 where Laws L.J. at [29] concluded that ParkingEye, when contracting with Somerfield, did not at the outset have an intention to deliberately break the law. Consequently he upheld the contract. Contrast that with this present situation where some PPCs have deliberately broken the law by erecting their contract-bearing signage without first having in place the mandatory prior advert consent required by law. As we have seen, any unauthorised advertising constitutes a criminal offence which will remain so for all time. Such illegality cannot be reversed by a subsequent grant of advert consent. In contrast to the Somerfield situation, where illegality was incidental to the contract and unintentional, here illegal wrongs have been committed at the time of entering contracts with defendants. Furthermore, the wrongs are deliberate, are central to the contract, are criminal (not civil torts) and are repeated at multiple sites on multiple occasions over half a decade or so. The scale is industrial.

While the debate continues about legal issues, there is another important issue to consider: adherence to codes of practice. In order to obtain the details of a vehicle’s registered keeper from the DVLA a PCC must be a member of an Accredited Trade Association (ATA) that is recognised by the DVLA.  There are currently two ATAs: The British Parking Association (BPA) and the Independent Parking Community (IPC).  Both ATAs have an Approved / Accredited Operator Scheme (AOS) and a Code of Practice (CoP).  Every version of every CoP that I have seen requires their Member PPCs to conduct their businesses according to the Law.

In the case of the BPA the CoPs state: “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......”   and: “4.3    Under the Code you must keep to all the requirements laid down by law.”

In the case of the IPC the CoP ( e.g. 26th September 2014 version) states: “It remains the duty of the operator to appraise themselves with any legal provisions that concern their operations and to adhere to them.”  and: “2.4    If you obtain and process vehicle keeper’s data you are obliged to: 2.42   Be compliant with all necessary legislation.”  and: “3.1   This Code is designed to complement the laws which apply to the parking industry. It is your responsibility to ensure that your business adheres to all relevant legal provisions.”

To summarise, the PPC (whether a BPA member or an IPC member)  has an overriding duty to comply with the law in creating and enforcing its contract with a motorist (or, by extension under the Protection of Freedoms Act 2012, with a vehicle’s keeper), and in communicating the terms of that contract.

In the judgment in Cavendish Holdings BV v. Talal El Makdessi; ParkingEye Limited  v. Beavis [2015] UKSC 67 the judge drew attention to the BPA CoP.  At [111] is stated: “.....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. In assessing the fairness of a term, it cannot be right to ignore the regulatory framework which determines how and in what circumstances it may be enforced.”

Virtually 100% of sites in this survey either had no advert consent whatsoever for their parking signs, or were obliged to apply belatedly with no possibility of back- dating. Most of the signs are, or at some time were, unauthorised and displaying unauthorised signs is a criminal offence. All AOS CoPs require their members to operate within the law, but the elephant in the room, the inconvenient truth, is that the signage is almost entirely outside the law. Meanwhile PPCs that do not adhere to the CoP are not entitled to obtain keeper particulars from the DVLA, yet they do.  Indeed, a typical DVLA KADOE  contract with the PPC, at [A5.1], requires users to: “....at all times comply with Law and Industry Best Practice....” and, at [A6.1],  to: “.....comply with the ATA’s Code of  Practice or conduct.”

Many of us have complained to PPCs, to the BPA and to the DVLA but all deny that there is a problem – every complaint seems to be suppressed. What we have here is a vast gravy train of citizens’ money, continuously gaining speed and now out of control. The ATAs are not independent, being funded in a cosy arrangement with the PPCs, and turkeys don’t vote for Christmas!  The DVLA, too, are turning over vast amounts of our money in data access fees; they continually claim they do not profit from this service, but the costings they have produced seem to be more akin to those relating to manual (V888) enquiries rather than electronic enquiries which appear to operate with minimal human involvement.

There may be questions about the statistical sampling method used in this study. Sites were investigated initially because they were high-profile, controversial car parks, and of course it may well be that low-profile orthodox sites may be missed. For that reason, the study is being extended and another 400 sites are currently under investigation. Planning registers are now being searched, not only by postcode / applicant name, but non-specifically using catch-all searches  on key- words such as ‘ANPR’, ‘camera’, ‘recognition’ and ‘automatic’.

To conclude, this study raises serious concerns about the monitoring and regulation of private car parks. These results form part of a much larger report to be presented to MPs in advance of a Parliamentary debate on self-regulation listed for the New Year.  Meanwhile, PPCs should be held to account and should refund all those parking charges gained at sites that are or were being operated in breach of the law and CoPs. There is particular concern that many PPCs are claiming to operate within the CoPs when they are actually in breach; they use the CoP as a kind of veneer or cloak of respectability and the public and authorities are being seriously misled. These interim results will inevitably fuel demands for the introduction of a proper independent statutory regulation system, since self-regulation really isn’t working.

Prankster Note

It is of course very worrying that private parking companies such as ParkingEye charge motorists huge sums for trivial overstays, while operating a deliberate policy of not complying with the law.

One ParkingEye employee confided their strategy to The Prankster

One thing to note that may be of interest to you motorists is that the majority of sites, there is no planning permission.

We operated a model of retrospective planning.

So get the go ahead from the client, bang the system in and then if there was any noise file a retrospective planning order.

Point was to save on costs. And it worked.

Shuteyepark has done a vast amount of research regarding planning permission and advertising consent. His research can be downloaded from here.

Happy Parking