Some thoughts on Tony Hogg’s comments about pavement parking

Cllr Paul Bull with an end of Pavement Parking sign
Cllr Paul Bull with an End of Pavement Parking sign (Diagram P667.2)

As someone has long been concerned about pavement parking, it is good news that Tony Hogg, the Police and Crime Commissioner for Devon & Cornwall has come out with strong comments on the issue [Parking on Exeter pavements is ‘inconsiderate’ says police boss Tony Hogg E&E 23 June 2015].

It concerns me because it makes life difficult for many – pedestrians with mobility issues, those with visual impairments, users wheelchair and mobility scooters, and parents with buggies and pushchairs among them.

The article highlights section 30 of Exeter City Council Act 1987 which prohibits the parking of vehicles on verges, central reservations and footways.

s30 of Exeter Act 1987
s30 of Exeter Act 1987

It seems  since 1987 many motorists were prosecuted under s30.

However, the article make it clear that the situation changed dramatically in May 2008 (not January 2012) when parking violations became civil offences, with Civil Enforcement Officers [CEOs] enforcing regulations by issuing Penalty Charge Notices [PCNs].

Unfortunately, the terms of s30 were not transferred at the same so, despite the comments of both Tony Hogg and Cllr Percy Prowse, CEOs currently cannot issue PCNs for pavement parking.

This might come as a surprise to many who believe that pavement parking is against the Highway Code.

Rule 244 of the Highway Code states:
You MUST NOT park partially or wholly on the pavement in London, and should not do so elsewhere unless signs permit it. Parking on the pavement can obstruct and seriously inconvenience pedestrians, people in wheelchairs or with visual impairments and people with prams or pushchairs. Law GL(GP)A sect 15

So rule 244 needs a little decoding by looking at those two phrases – MUST NOT and should not.

Many of the rules in The Highway Code are legal requirements, and if you disobey these rules you are committing a criminal offence. You may be fined, given penalty points on your licence or be disqualified from driving. In the most serious cases you may be sent to prison. Such rules are identified by the use of the words ‘MUST/MUST NOT’. In addition, the rule includes an abbreviated reference to the legislation which creates the offence.

Although failure to comply with the other rules of The Highway Code will not, in itself, cause a person to be prosecuted, The Highway Code may be used in evidence in any court proceedings under the Traffic Acts (see The road user and the law) to establish liability. This includes rules which use advisory wording such as ‘should/should not’ or ‘do/do not’.

So parking on the pavement in Exeter is NOT illegal in itself.

However, my research has revealed that there TWO regulations that could result in fines. It is illegal to drive a vehicle on the footway (Highways Act 1835 s72) and to cause an obstruction (Highways Act 1980 s137). Both the latter carry fines (Road Traffic Offenders Act 1988, s51 and schedule 3).

However, it is difficult to enforce and prove guilt in these cases. Despite the obvious inference that a parked vehicle has been driven on the footway prior to being parked there, witnesses to the driving may be needed to secure a prosecution.

Similarly the offence of obstruction of the highway is difficult to prove, particularly if police claim that it is possible to negotiate the obstacle whilst remaining within the boundaries of the highway – even if this means a diversion for pedestrians off the pavement. Despite this reluctance of the police to prosecute, there is a good deal of case law on the general issue of ‘obstruction’ and ‘unnecessary obstruction’.

Back in 2009, The Department for Transport  stated that:
“There is currently no national legislation banning the parking of all vehicles on the pavement, due to the wide range of circumstances and locations where pavement parking occurs. For example in some narrow residential roads with a lack of off-street parking provision, drivers have little option but to park on the pavement to avoid causing traffic hazards.

“The Government has no plans at present to introduce new legislation specifically aimed at banning pavement parking on a national scale.”

During the 2014-15 Parliament, two Private Members Bills sought to address the issue: one by Mark Lazarowicz MP [LAB/Co-op], Edinbburgh North and Leith] to devolve powers to introduce a pavement parking ban to the Scottish Government; and one by Martin Horwood MP [LD, Cheltenham] to introduce a blanket pavement parking ban in England and Wales.

Mark Lazarowicz’s Responsible Parking (Scotland) Bill 2014-15 was instigated by problems Scottish MSPs have had introducing their own legislation in this area – such Sandra White MSP [SNP, Glasgow Kelvin] had proposed in her Responsible Parking (Scotland) Bill. Mark’s Bill received Second Reading in the House of Commons in September 2014, but was adjourned and then withdrawn

Martin Horwood’s Pavement Parking Bill 2014-15  was due to receive Second Reading, first in September 2014, then in January 2015 and finally in March 2015, but the Bill will make no further progress following the dissolution of Parliament on 30 March 2015.

In summary, pavement parking is anti-social, can be illegal and both the highway authority (usually the County Council) and the police can and should take action in many circumstances. I would like to see drivers being issued with a penalty charge notice (PCN) if they obstruct a dropped kerb or block a pavement.

I appreciate there may need to be exceptions to this ban as where the road layout might require vehicles to park on part of the pavement, whilemaintaining space for all pedestrians to pass. Local Authorities should be able to make exemptions based on local circumstances. However, I believe that such exemptions should be the exception and each such exemption requires adequate justification.

Diagram P667.2 from The Traffic Signs Regulations and General Directions [TSRGD] 2002
Diagram P667.2 from The Traffic Signs Regulations and General Directions [TSRGD] 2002
Further reading:
Highways Act 1835 s72
If any person shall wilfully ride upon any footpath or causeway by the side of any road made or set apart for the use or accommodation of foot passengers; or shall wilfully lead or drive any horse, ass, sheep, mule, swine, or cattle or carriage of any description, or any truck or sledge, upon any such footpath or causeway; or shall tether any horse, ass, mule, swine, or cattle, on any highway, so as to suffer or permit the tethered animal to be thereon;

House of Commons Standard Note SN1172: Parking – pavement and on-street [17 November 2014]
Download  HERE

Department of Transport discussion paper, Pavement Parking – Curbing an Abuse [December 1986]

#PavementParking in #Exeter – why the provisions of the Exeter Act 1987 have fallen into the long grass

Parking on the pavement can obstruct and seriously inconvenience pedestrians, people in wheelchairs or with visual impairments and people with prams or pushchairs.

However, the law surrounding the practice of pavement parking is extremely confused and confusing.

The Highway Code states in Rule 244: You MUST NOT park partially or wholly on the pavement in London, and should not do so elsewhere unless signs permit it.

So, in London, parking on pavements is illegal under the Greater London Council Act (1974), except in specifically designated areas, which much be clearly marked.

But elsewheren the rest of the UK the law is more complex.

Heavy commercial vehicles are banned from parking on the footway (Road Traffic Act 1988 s19 and s20), except when goods are being unloaded and and the vehicle is not creating a danger or an obstruction.

It is illegal to drive a vehicle on the footway (Highways Act 1835 s.72) and to cause an obstruction (Highways Act 1980 s. 137). Both the latter carry fines (Road Traffic Offenders Act 1988, s.51 and schedule 3).

However, it is difficult to enforce and prove guilt in these cases. Despite the obvious inference that a parked vehicle has been driven on the footway prior to being parked there, witnesses to the driving may be needed to secure a prosecution.

Similarly the offence of obstruction of the highway is difficult to prove, particularly if police claim that it is possible to negotiate the obstacle whilst remaining within the boundaries of the highway – even if this means a diversion for pedestrians off the pavement.

The Department for Transport have stated that:
“There is currently no national legislation banning the parking of all vehicles on the pavement, due to the wide range of circumstances and locations where pavement parking occurs. For example in some narrow residential roads with a lack of off-street parking provision, drivers have little option but to park on the pavement to avoid causing traffic hazards.”

Back In 1987, Exeter City Council took a robust attitude to the problem of pavement parking – rather than using Traffic Regulation Orders [TROs] in specific areas, they used legislation to impose a city-wide ban. By virtue of section 30 of the Exeter City Council Act 1987 [commonly referred to as the Exeter Act 1987], footway and verge parking on urban roads was prohibited:

section-30-of-exeter-city-council-act-1987
The Act went on to say: (8) The Council shall erect notices on roads at the borders of the area to which the prohibition specified in subsection (1) above applies.

nadder-park-road-obscured-sign-02
Gateway sign on Barley Lane where it jois Nadder Park Road (although in photo it is facing the wrong way!)

So, the Exeter Act 1987 made parking on the footway or verge a criminal offence. And traffic wardens did enforce it by issuing parking tickets. There were some exceptions, and these were marked with specific signs – Sussex Close and Wiltshire Close off Somerset Avenue in Cowick are 2 such examples.

TSRGD Sign 667 Vehicles permitted to park partially on the footway (Sussex Close)

Notice in the above paragraph I used the past tense!

Up until 2008, parking violations were criminal offences and enforced either by the police and/or traffic wardens. In May 2008, those powers transferred to Devon County Council and now Civil Enforcement Officers (CEOs) enforce parking restrictions using powers issued by the Secretary of State under regulations within the Traffic Management Act 2004.

When DCC applied for Civil Parking Enforcement powers the request was also made that the provisions of Section 30 of the Exeter City Act 1987 be included in the Schedules to the Traffic Management Act. However, due to time constraints this was not possible. As a result, the provisions within the Exeter City Act were not transferred to DCC and therefore responsibility for enforcement currently remains with the Police Authority.

Since then, Exeter Highways & Traffic Orders Committee [HATOC] have been trying to rectify this situation.

At its meeting on 02 February 2012, Exeter HATOC considered a report, Pavement Parking in Exeter

Minute 118 of this meeting notes that it was RESOLVED that this development be welcomed and that the new provisions be implemented as expeditiously as possible following appropriate consultation and publicity.

In accordance with Standing Order 23(2) Councillor Macdonald has requested that Exeter HATOC consider this item again at the subsequent meeting held on 19 April 2012.

Minute 132 of this meeting noted that I attended in accordance with Standing Order 25(2) and spoke to this item.

I asked about how vehicles parked over the dropped kerb entrance to their own driveways would be treated if and when pavement parking was enforced.

The minute goes on to say that The Neighbourhood Highway Group Manager reported that a review of the signage and their replacement was underway. Implementation of the new enforcement powers by the County Council (through the Civil Enforcement Officers) was planned for September 2012. Exemptions would be permitted under the regulations. The Committee noted the position.

On 08 November 2012, Exeter HATOC received an update on the pavement parking situation.

Although arising from a by-law from Exeter City Council, Devon County Council – as highways agency – are responsible for signage, etc. DfT have advised that additional signage is required (at intervals of around 400m) – how has this changed from the situation prior to 2008 change of parking enforcement operation? It is NOT a TRO matter but I’ve been advised that we should discuss a scheme for members to add additional exemptions to those that already have such exemptions (like Sussex Cl and Wiltshire Cl in Cowick).

Minute 162 of this meeting adds that the Head of Highways and Traffic Management reported that detailed discussion between the County Council and the Department of Transport were continuing. In the interim any suggested exemptions proposed by Members should be referred to the Exeter Neighbourhood Highway Team (Devon County Council) to assess.

So it seems that plans to reintroduce the provisions of schedule 30 of the Exeter 1987 have been stymied by Secretary of State for Transport. Even ingnoring the cost of several £100ks, this seems ot go against all other directives about reducing street clutter.

The next time that Exeter HATOC considered the matter was at its meeting held on 22 July 2014.

Once again I attended in accordance with Standing Order 25(2) and spoke to this item. I pointed out that there are some roads in Cowick where, if pavement parking was prevented, legal parking would make the streets too narrow for traffic to pass. We often have problems on Barley Farm Road, where legal parking prevents the only bus for the ward getting down the street!

barley-farm-road-pavement-parking
Pavement parking on Barley Farm Road

So I pointed out that I’m keen to explore the option used by Oxford, Slough and maybe others – with a line denoting where cars can pavement park and if this line is breached, a PCN can be issued.

The minutes of the meeting note that the Head of Highways, Capital Development and Waste reported that following consultation with the Department for Transport he was developing proposals and options, in consultation with other local authorities and industry associations, to enable enforcement of parking on pavement restrictions whilst still maintaining, as appropriate, exemptions in respect of the more narrow and congested urban roads.

It was MOVED by Councillor Owen, SECONDED by Councillor Prowse and RESOLVED that a report on proposals relating to enforcement of parking on pavements restrictions be presented to the next meeting of this Committee.

So at the meeting of 10 November 2014, pavement parking was again considered.

Minute 82 of this meeting reported on the Pavement Parking Bill 2014-15 proceeding through Parliament to make provision for the safety, convenience and free movement on pavements of disabled people, older people, people accompanying young children, and other pavement users; to clarify, strengthen and simplify the law relating to parking on pavements in England and Wales; and for connected purposes. It was anticipated that the Bill would also cover inappropriate parking on verges.

The County Council had made representation on this matter to the British Parking Association and the Parking and Traffic Regulations Outside London (PATROL) who would be consulting with other local authorities to ascertain best practice on how to deal with this matter in the interim.

Pending statutory and best practice guidance the County Council would not be proposing any policy changes but that a report would be submitted to Cabinet on future options at the appropriate time.

So it seems, for now, DCC officers are letting discussions in Parliament take their (extremely slow) course.

And what of the progress of that Bill?

It was hoped that the Pavement Parking Bill 2014-15 would be receive its Second Reading on 09 January 2015 but there was insufficient time to consider it.

It has been rescheduled for a Second Reading on 27 March 2015, but I  don’t think this is likely to be heard (it will be the last session before the general election).

Further Reading: Living Streets are a dedicated group of professionals and volunteers, working together to create safer streets around the UK and in February 2010 published a Policy Briefing on pavement parking 

Parking on corners

I and many councillors have been contacted about parking on corners and I believe it is becoming a more frequent issue around the city.

Rule 243 of the Highway Code outlines where you can and cannot stop or park

DO NOT stop or park:

  • near a school entrance
  • anywhere you would prevent access for Emergency Services
  • at or near a bus or tram stop or taxi rank
  • on the approach to a level crossing/tramway crossing
  • opposite or within 10 metres (32 feet) of a junction, except in an authorised parking space
  • near the brow of a hill or hump bridge
  • opposite a traffic island or (if this would cause an obstruction) another parked vehicle
  • where you would force other traffic to enter a tram lane
  • where the kerb has been lowered to help wheelchair users and powered mobility vehicles
  • in front of an entrance to a property
  • on a bend

So how to enforce the “DO NOT stop or park opposite or within 10 metres (32 feet) of a junction, except in an authorised parking space”?

I have been told by the ECC Parking team that Civil [Parking] Enforcement Officers [CEO] that they will enforce and issue Penalty Charge Notices  if there are double yellow lines around the corners. I am encouraged that the some CEOs will patrol some of the locations I’ve highlighted to see what they can do about the problem.

If there are no restrictions then it’s up to the police to issue fines for obstruction.

Perhaps I might need to work with residents to lobby Devon County Council [DCC] drawn up Traffic Regulation Orders [TROs] to  add the relevant restrictions to give ECC CEOs the tools to enforce?

But that’s not going to be easy, though. And certainly not speedy.

The average cost of preparing, advertising and sealing such a TRO , along with signs and lines, is £2500

At the Devon Council Council [DCC] Cabinet meeting on 14 November 2012, Cllr Brian Greenslade [LD, Barnstaple North] asked a written question:

QUESTION(S) FROM MEMBER(S) OF THE COUNCIL
14 November 2012/Minute *567
1. QUESTION FROM COUNCILLOR GREENSLADE
Re: Traffic Regulation Orders
I have been informed by Officers that no new traffic orders (TRO s) can be progressed this year because of lack of capacity. Would the Leader not agree that illustrates my previous point about local capacity within the County Council following the significant level of cuts and more to the point, what does he intend to do about it?

REPLY BY COUNCILLOR HUGHES
As part of the restructuring of Highways and Traffic Management a new central dedicated team responsible for managing the County’s Traffic Regulation Orders (known as TROs) has been established. There is reduced capacity in this group which has had to take its share of reducing staff numbers in order to make necessary savings.

However, there has always been a backlog in dealing with TROs. The new team is more structured and is focused on ranking TROs to ensure that those which are most important are dealt with first; a prioritised programme of TROs is therefore now being systematically worked through.

Where possible additional resources are commissioned to deliver externally funded work. A more business-like approach is being taken in the delivery of TROs and this is reducing the backlog.

There are issues where locally important TROs do not feature highly enough in the prioritised strategic programme to be delivered quickly. In such circumstances the team may commission consultants to deliver these locally important TROs.

So it seems the only way these parking  TROs area will be introduced is where the local County Councillor has agreed to fund the costs from the locality budget.

That’s the next challenge.