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]