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Polyplastic

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  1. Burton Hospital.pdf Just a couple more examples of Planning Authorities telling ParkingEye that a crime is being committed by displaying signs without advertisement consent. The grant of any subsequent consent does not legalise this crime. Any consent only applies going forward and cannot be backdated. So in Mansfield the existence of their signs, before advertisement consent is granted, will always be a crime. Remember that if they chase you for a parking charge. ParkingEye like to deny that advertisement consent is required or that a failure to have consent is a crime or they run both arguments. Such lies are supported in court by a statement of truth as well!!! It would seem, according to ParkingEye, that Planning authorities up and down the country are all wrong. Amazing isn't it that only ParkignEye can be right? Polyplastic 11th November letter PDF.pdf
  2. Interesting article in the CHAD http://www.chad.co.uk/news/local/parking-company-using-unauthorised-cameras-at-retail-park-1-7774133 ParkingEye claim that they don't need any consents. The comment with the article may or may not prompt the landowner to continue to do the honorable thing as it did when folk were stuck in traffic. We shall see Polyplastic
  3. Planning Department. Where is this car park? Polyplastic
  4. Blimey good guys exist!!!! Still worth asking the planners if PakingEye has consent for its signs. Probably don't so it will put them to some trouble and expense getting advertising consent Polyplastic
  5. 1. It's not a speculative invoice. Please stop quoting 2012 advice. Most people have realised that the ParkingEye's of this world don't do speculative they take you to court 2. They do not have to rely on PoFA. That legislation only applies if they wish to sue the registered keeper. As they will be making a claim in contract they have up to 6 years to send out a demand and sue you. That is the limitation period for suing in contract. If they can't sue the RK under PoFA they can sue the RK and claim that the RK was the driver. Then let the RK go to court and try and claim that he was not the driver if he was. All it takes is for the Judge to ask him if he was the driver!!! 3. Follow due process and appeal and go to POPLA. If you lose at POPLA they will take you to court. It's what they do Polyplastic
  6. You have to get your appeal into ParkingEye within the time limit set in their Parking Charge notice. Fail to do so and you can't appeal to POPLA. Fail to do so and in court the Judge will not look too favourably on your not having followed that process. The Planners would firstly need to satisfy themselves that advertisement consent and planning permission is required. If the car park signs are on enclosed land and cannot be seen from the Highway they may not need advertisement consent. If the ANPR are on freestanding poles they should need planning permission. If they are attached to a building they will not need such permission.
  7. At a Holiday Inn in Stoke ParkingEye did not have advertisement consent for its signs nor planning permission for its cameras. ParkingEye does not bother to secure such consents elsewhere in the country so perhaps it has not done so at your Holiday Inn. Check with the local planning authority. If there are no consent then in your appeal to ParkignEye which will be rejected, at POPLA include this The case of Cavendish Square Holdings BV v Talal El Makdessi; Parking Limited v Beavis [2015] UKSC 67, at paragraph 96, draws our attention to the Code of Practice of the British Parking Association Limited. At paragraph 111 the Judge helpfully comments 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. 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.” Paragraph 2.4 of the Code of Practice, sets out how and in what circumstances a term may be enforced. It reads “All AOS members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses.” Broadly, the Code of Practice obliges ParkingEye to comply with the law in creating and enforcing its contract with a motorist and in communicating the terms of that contract. It failed in a number of respects:- I have attached to this appeal a copy of a letter from the local planning authority which confirms that the car park signs do not have the necessary advertisement consent, nor do the ANPR cameras have planning permission. This is clearly a breach of paragraph 2.4 of the Code of Practice. If there is any liability on the Appellant then, in considering paragraph 2.2 above, it is submitted that a term is not fair if the requirements of the Code of Practice are ignored and a crime has to be committed to create that term and/or the contract between motorist and the parking enforcement company. By virtue of Regulation 3 of the 2008 Consumer Protection from Unfair Trading Regulations (CPRs) a commercial practice is unfair if it contravenes two requirements. The first strand being the requirements of professional diligence and the second that a failure of professional diligence materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to a “product”. (For “product” refer to the next paragraph). By virtue of Regulation 5 of the 2008 Regulations a breach of Regulation 3 is an offence. The Office of Fair Trading guidance on the 2008 Regulations at paragraph 10.1 indicates that “Regulations 3(1) and 3(3) of the 2008 Regulations set out the general prohibition on unfair business to consumer commercial practices, also known as the general duty not to trade unfairly. This prohibition allows enforcers to take action against unfair commercial practices, including those that do not fall into the more specific prohibitions of misleading and aggressive practices, or into the very specific banned practices. This means it acts as a safety net. It is designed to ‘future-proof’ the protections in the CPRs, by setting standards against which all existing and new practices can be judged”. Paragraph 10.4 of the OFT Guidance indicates that professional diligence should evidence “(a) honest market practice in the trader’s field of activity, or (b) the general principle of good faith in the trader’s field of activity”. The Appellant submits that the first strand of Regulation 3 applies as a result of the criminal conduct involved in parking enforcement. The second strand begs the question “Would a consumer be likely to make a different decision about payment of damages if he were told that a crime had to be committed to bring about the demand for that payment?” It is averred that a car park operator failing to secure, or that its client had secured, the relevant advertisement consent in accordance with the law, before managing the car park, and thus a crime was being committed, was acting in contravention of Regulation 3 of the 2008 Regulations. In doing so ParkingEye fell below the standards of a reasonably competent professional, having regard to the standards normally expected in its profession with particular regard to the Code of Practice. Further that by failing to advise the Appellant of the criminal conduct in relation to its parking enforcement, when demanding damages for an alleged breach of contract, it is averred that ParkingEye was also acting with a lack of professional diligence. On the 1st October 2014, the 2014 Consumer Protection (Amendment) Regulations came into effect which extended the definition of “product” in the 2008 Regulations and which now includes the settlement, (rather than the demand) after the 1st October 2014, of actual or purported liabilities and which ParkingEye is seeking to recover from the Appellant by way of alleged damages. (see Regulation 2(9) of the 2014 Regulations). So, taking a decision to settle damages falls within Regulation 3 of the CPRs. It is submitted that it is incumbent upon ParkingEye to show that it is acting with professional diligence. Regulation 5(3)(b) of theCPRs indicates that it is a misleading action where there is any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with. ParkingEye had, in the Code, undertaken to comply with the law and clearly failed. POPLA is obliged to notify the BPA of any failure of a parking company to comply with the Code of Practice Polyplastic
  8. Objections to ParkingEyes applications can can now be submitted to jkrawczyk@mansfield.gov.uk Thie applications are here http://www.mansfield.gov.uk/Fastweb/results.asp Polyplastic
  9. Mansfield District Council has now received applications for advertisement consent and for planning permission for the ANPR cameras. The application are presently being validated and once that has been completed they will be on the Council's planning applications portal. The public will then be able to express their views on the the applications. There are limited grounds on which any objection may be made and this tends to be limited to visual amenity or safety grounds. Very little scope there in this location unless it can be shown that signs near the entrance could create traffic congestion should any motorist stop his car to read the signs before entering. What every sensible motorist should do of course in order to make an informed decision on entering the car park. One possibility for a decent objection would be that in carrying out its functions the Council has a duty to consider crime and disorder implications as a result of the provisions of section 17 of the Prevention of Crime and Planning Crime and Disorder Act 1998. I think it will be a safe bet that with the applications neither ParkingEye nor the British Land Company will have submitted any information about just how the ANPR cameras will be ysed. That means that neither the Council, nor any member of the public, will have any information in front of them on which to form a view as to whether any criminal conduct may be being undertaken here via the use of ANPR. There is a potential with any CCTV system for misuse. For example making demands for money from people, against whom no valid claim for money could arise, e.g they were stuck in traffic, may be something that could fall under s2 of the Fraud Act 2006. (Fraud by false representation) - Look it up. Has ParkingEye provided any information to the Planning Authority to indicate that this cannot take place? There is a potential for a contravene the Data Protection Act 1998. Whilst many breaches of the Act do not, of themselves, constitute criminal offences, there are still some in there. Has ParkingEye provided any evidence that its internal protocols/safeguards ensure that no crime can be committed whilst collecting and storing data? Just a few thoughts for anyone who may wish to lodge an objection to the applications Polyplastic
  10. That was their commercial contract - what is important from the judgement are the principles the Judge laid down as to the situation where contracts can be void. The PE v Somerfield contract just did not fit into the categories the judge set out. However a contract between a motorist and ParkingEye, where a crime underpins its existence, can fit within the categories the Judge described. I mentioned earlier that anyone wishing to fight such claims needs to understand how the court works. Simply going to court and saying "the contract is repugnant" is not enough....it has to be justified with evidence and that is where case law come into play. In addition to the issues raised above there are other factors, which amplify and give weight to the arguments, but which are best left to a skeleton argument stage otherwise we give too much away here to the opposition Polyplastic
  11. The owners of the St Peters Retail park have been asked if they will cease the criminal aspect of parking enforcement at the site pending their obtaining the necessary mandatory consents. They have declined to confirm that they will cover their signs/cameras. Mansfield District Council has the powers to cover over the signs but they do not seem interested in exercising those powers. So ParkingEye/The British Land Company will continue to enforce even though a crime is being committed everyday that their signs remain in view. Meanwhile shoppers at the park, who shop lift will continue to be prosecuted. Quite right of course but isn't this double standards? Polyplastic
  12. Yes but then you have to develop the arguments and produce your evidence to support that submission. Something along the lines of Any contract between the parties, based on unlawful signs, would be illegal at its formation as it was incapable of creation without an illegal act. Where a contract is illegal when formed, neither party will acquire rights under that contract, regardless of whether there was any intention to break the law. The contract will be void and treated as if it was never entered into. As such the contract cannot be enforced. It is a matter of Public Law Policy that it would be contrary to public policy for a court to enforce such a contract whereby a party may profit from its criminal conduct. Let us for a moment look at the conclusions of the Judge in paragraph 43 of the Judgment in RTA (Business Consultants) Limited v Peter Bracewell on the issue in the preceding paragraph. "to allow recovery in these cases would be to allow recovery for what is illegal. It would put the courts in the position of saying that the same conduct is both legal, in the sense of being capable of rectification by the court, and illegal. It would, in short, introduce an inconsistency in the law. It is particularly important in this context that we bear in mind that the law must aspire to be a unified institution, the parts of which - contract, tort, the criminal law - must be in essential harmony. For the courts to punish conduct with the one hand while rewarding it with the other, would be to 'create an intolerable fissure in the law's conceptually seamless web' ... We thus see that the concern, put at its most fundamental, is with the integrity of the legal system." The ex turpi causa principle is concerned with claims founded on acts which are contrary to the public law of the state and engage the public interest. The paradigm case is, as I have said, a criminal act. In addition, it is concerned with a limited category of acts which, while not necessarily criminal, can conveniently be described as "quasi-criminal" because they engage the public interest in the same way. Leaving aside the rather special case of contracts prohibited by law, which can give rise to no enforceable rights, this additional category of non-criminal acts giving rise to the defence includes cases of dishonesty or corruption, which have always been regarded as engaging the public interest even in the context of purely civil disputes; On the basis of these principles it cannot be argued otherwise than that the unlawful erection of the signs was dishonest and that as this claim is based on what is illegal it would be inconsistent to sanction it and to reward ParkingEye Then, if you look at paragraph 29 of the Transcript of the ParkingEye v Somerfield case the Judge also appears to support a rejection of this claim. He comments “At common law, historically, a distinction has been drawn between cases where the guilty party intended from the time of entering the contract unlawfully and cases where the intention to perform unlawfully was only made subsequently”. In this case the problem was at the formation of the contract and not in relation to any subsequent act. Laws LJ, in Somerfield, concluded that ParkingEye did not have an intention, when creating that contract, to deliberately break the law and the contract was upheld. In this case the Claimant did deliberately break the law by erecting signs, with its contractual terms for parking, without firstly having in place the mandatory consent. This illegality was not merely incidental to the creation and part of the performance of the contract, as in Somerfield, but, in this action, central to it. Somerfield guides us that where there was a chance to remove the illegality from future performance the contract could remain in force. On the other hand, there was less scope to rectify a one-off contract so it was more likely to be held unenforceable. In this action the illegality of the signage on the day of parking cannot be undone. At paragraphs 65 - 74
 of the transcript Laws LJ set out three factors which need to be considered in a defence of illegality. The key issues are that 1. the commission of an illegal wrong at the time of entering the contract means that the claimant will not be able to enforce the contract. 
 2. the illegality is central to the contract and is not merely a minor aspect thus it should not be held to be too remote so as to render the contract enforceable.
 3. the nature of the illegality – in this case it was a crime not merely a civil tort, as in Somerfield, such that its gravity is far greater.
 Polyplastic
  13. At Post 15 above is evidence from Mansfield Council of the crime involved in this parking enforcement operation - You may wish to include the following in your appeal to POPLA - you may need to send with your appeal a copy of the Beavis Judgment the case you need is Cavendish Square Holding BV (Appellant) v Talal El Makdessi (Respondent) ....ParkingEye Limited (Respondent) v Beavis (Appellant) The Beavis case at paragraph 96 draws our attention to the Code of Practice of the British Parking Association Limited. In Beavis para 111 the Judge helpfully comments 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. 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.” Paragraph 2.4 of the Code of Practice, (applicable at the time of the parking event in this action), sets out how and in what circumstances a term may be enforced. It reads “All AOS members must be aware of their legal obligations and implement the relevant legislation and guidance when operating their businesses.” Broadly, the Code of Practice obliges the Claimant to comply with the law in creating and enforcing its contract with a motorist and in communicating the terms of that contract. I have attached a copy of a letter from the local Planning Authority which confirms that at the time the vehicle was parked the car park signs did not have advertisement consent nor planning permission for the ANPR cameras. By virtue of Regulation 30 of the Town and Country Planning Control of Advertisements)(England) Regulations 2007 it is a criminal offence to display the signs without advertisement consent. It is not legally possible to secure any backdated advertisement consent so it will always have been a crime when the car was parked. This is clearly a breach of paragraph 2.4 of the Code of Practice. If there is any liability on the Appellant then, in considering paragraph 2.2 above, it is submitted that a term is not fair if the requirements of the Code of Practice are ignored and a crime has to be committed to create that term and/or the contract between motorist and the parking enforcement company. By virtue of Regulation 3 of the Consumer Protection From Unfair Trading Regulations 2008 a commercial practice is unfair if it contravenes two requirements. The first strand being the requirements of professional diligence and the second that a failure of professional diligence materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to a “product”. (For “product” see below). By virtue of Regulation 5 of the 2008 Regulations a breach of Regulation 3 is an offence. The Office of Fair Trading guidance on the 2008 Regulations at paragraph 10.1 indicates that “Regulations 3(1) and 3(3) of the 2008 Regulations set out the general prohibition on unfair business to consumer commercial practices, also known as the general duty not to trade unfairly. This prohibition allows enforcers to take action against unfair commercial practices, including those that do not fall into the more specific prohibitions of misleading and aggressive practices, or into the very specific banned practices. This means it acts as a safety net. It is designed to ‘future-proof’ the protections in the CPRs, by setting standards against which all existing and new practices can be judged”. Paragraph 10.4 of the OFT Guidance indicates that professional diligence should evidence “(a) honest market practice in the trader’s field of activity, or (b) the general principle of good faith in the trader’s field of activity”. The Appellant submits that the first strand of Regulation 3 applies as a result of the criminal conduct involved in parking enforcement. The second strand begs the question “Would a consumer be likely to make a different decision about payment of damages if he were told that a crime had to be committed to bring about the demand for that payment?” It is averred that a car park operator failing to secure, or that its client had secured, the relevant advertisement consent in accordance with the law, before managing the car park, and thus a crime was being committed, was acting in contravention of Regulation 3 of the 2008 Regulations. In doing so the Claimant fell below the standards of a reasonably competent professional, having regard to the standards normally expected in its profession with particular regard to the Code of Practice. Further that by failing to advise the Appellant of the criminal conduct in relation to its parking enforcement, when demanding damages for an alleged breach of contract, it is averred that the Defendant was also acting with a lack of professional diligence. On the 1st October 2014, the Consumer Protection (Amendment) Regulations 2014 came into effect which extended the definition of “product” in the 2008 Regulations and which now includes the settlement, (rather than the demand) after the 1st October 2014, of actual or purported liabilities and which the Claimant is seeking to recover from the Appellant by way of alleged damages. (see Regulation 2(9) of the 2014 Regulations). So, taking a decision to settle damages falls within Regulation 3 of the 2008 Regulations. It is submitted that it is incumbent upon the Claimant to show that it is acting with professional diligence. Regulation 5(3)(b) of the 2008 Regulations indicates that it is a misleading action where there is any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with. The Claimant had, in the Code, undertaken to comply with the law and clearly failed. Polyplastic
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