Written evidence submitted by Mr S J Eastwood Snr (PPA0351)
Executive Summary
I am a lawyer specialising in the law pertaining to highways, traffic and public rights of way. This submission contains my own personal views based on my professional experience and knowledge and is not intended to reflect or represent the views of any client / local authority / user group. In brief, I consider that the key issue is to have a range of tools to deploy to address the issue of pavement parking but also not to raise public expectation too quickly and too greatly as a lot of problems are simply impossible to solve overnight within the constraints of both current car ownership and the physical space considerations dictated by a historical highways network.
As such, the following submission broadly reflects the following:-
1.1 Countless complaints are made to the Police and Local Highway Authorities every year regarding vehicles parked on the pavement forcing pedestrians, especially with children (be they in pushchairs or similar, or walking) to either move into the vehicular carriageway or to be forced to squeeze past the vehicle risking harm to their person / damage to the vehicle. Numerous representations are also made by disabled highway users, especially the visually-impaired. On each occasion, the pedestrians are clear that their right to travel along the highway in reasonable safety is being sacrificed or, at the very least, unreasonably compromised. While Penalty Charge Notices are issued where other existing traffic restrictions are being contravened, the Local Highway Authority is most often unable to do anything at all. From a legal perspective, it is clear that the Police have immediate powers to tackle such obstructions; powers ideally suited to addressing the issue, but a) the police’s resources are stretched and b) it is understood to have become a widespread view within the police that traffic matters (other than speeding) are the responsibility of the Highway Authority. Indeed, it is understood that many complaints to local authorities are as a consequence of the complainant being informed by the police that it is a Highway Authority matter (which it invariably is not).
1.2 A growing area of complaint appears to be around schools. While The Nottinghamshire County Council has undertaken a county-wide programme of introducing enforceable school clearways outside all schools, a significant number of vehicles appear to have responded to this by parking wholly on the footway and thus not strictly on the carriageway clearway markings, causing a new range of enforcement issues.
1.3 The lack of enforcement of ‘pavement parking’, contrary to the expectations of pedestrians (and arguably contrary to that which would ideally be provided for the visually / mobility impaired highway user) undermines public confidence in both the local highway authority and the police, prompting dissatisfaction among highway users and residents (sometimes manifesting in animosity between different traffic classes) and leading to an increased disregard for other traffic and parking restrictions such as double yellow lines – all of which become seen as ‘optional’ / guidance and therefore followed only by a small segment of society. This is particularly the case where the unwillingness / inability of the police / local highway authority respectively to be able to address such inconsiderate parking reinforces the drivers’ belief that such conduct is permissible (such a lack of enforcement arguably contributing to ever-decreasing compliance with the law). This has, to an extent, contributed to highway land, being land within the public realm, becoming a form of free-for-all where ‘might is right’ with residents both demanding and expecting to be able to park (and place caravans and other items) on the carriageway, footway or verge outside their house and to be able to prevent others from using that portion of highway as well as in further areas farther afield (instances of which might include the parking of vehicles on carriageways, verges and footways solely for the purpose of advertising, for example); such a belief also feeding instances of homeowners unlawfully enclosing highway verges &c. in the mistaken belief that this land may be incorporated within their curtilage.
2.1 For a variety of reasons, this offence is not enforced, but there are locations where the need to enforce is pressing. Acknowledging that it is unlikely that the police will be in a position to revert to enforcing such traffic matters, it would therefore appear essential that the offences of obstruction and of parking on the footway be decriminalised in order that, as with bus lane offences, they may be enforced by both the police and the Highway Authority as and when it is necessary and proportionate to do so.
2.2 I am aware of earlier efforts to bring in national legislation and noted with regret that these were not pursued at that time. Indeed, in 1974, Parliament provided for a national ban on pavement parking in urban areas by way of S.7, Road Traffic Act 1974 (which inserted a new section 36B into the Road Traffic Act 1972). If implemented, this would have prohibited all parking on verges, central reservations and footways on ‘urban roads’. Separately, this was introduced in London by S.15, Greater London Council (General Powers) Act 1974. In order to apply nationally, the Secretary of State needed to make a Parliamentary Order (and thus could have exempted certain classes of vehicles; and individual local authorities could have made Orders within their own areas to exempt from the national ban certain streets at all times or during certain periods). However, this Parliamentary Order never occurred. I acknowledge, however, the statements made by successive Ministers that there were difficulties for local authorities and the police in finding the resources to carry out the necessary policing and enforcement work; a view which ultimately culminated with the 1979 decision of the Government to defer implementation indefinitely.
2.3 In 1986, the Department for Transport again sought comments by way of a paper entitled ‘Pavement Parking – Curbing an Abuse’. In 1988, the Transport Minister stated that he had received over 450 responses to the paper and that he would be announcing the outcome of the review ‘as soon as possible’, though, to the best of my knowledge, nothing was ultimately forthcoming. When the Road Traffic Act 1972 was repealed in 1988, section 36B (the ‘national ban’ mentioned above) became, without any amendment, section 19A of the Road Traffic Act 1988 and the matter rested there … dormant, and awaiting implementation. I do note, however, that S.19 (which is a blanket ban on ‘heavy commercial vehicles’ being parked on verges, central reservations and footways) was enacted, as was S.21 (which is a blanket ban on parking a motor vehicle on a cycle track), and both are in force nationally. Nonetheless, I note that the necessary regulations to put into effect the national ban were never made and, in any event, this ‘blanket ban’ provision was ultimately repealed by S.83, Road Traffic Act 1991.
2.4 I have followed, with considerable interest, more recent efforts to address ‘pavement parking’ so as to extend the London position nationally manifesting by way of the Bills introduced in 2014 by Martin Horwood MP and in 2015 by Simon Hoare MP.
2.5 It is my view that, because none of these solutions have been pursued sooner, the situation has become so bad and drivers’ behaviour so entrenched, that addressing the problem is now very much more difficult (not that, in my respectful submission, that should be considered to be a reason for failing to do so). It appears clear that re-education of drivers is an essential first step.
2.6 Partially due to the issues raised in paragraph 2.3 above, the enforcement of parking violations has demonstrably become much more difficult in recent years, both practically and legally. It appears clear that, left unchecked, ‘pavement parking’ may reach the point where enforcement becomes impossible. It would therefore appear that, unless the police are to once again enforce such matters in terms of maintaining law and order, then it will be essential for ‘pavement parking’ along with all other offences which are either now or will be within the Civil Enforcement regime, to be covered by both mobile and fixed cameras with the corresponding Penalty Charge Notices able to be served by post.
3.1 In my view, requiring a further TRO to be made to prohibit parking on the footway substantially adds to the impact of addressing a measure which should have already been addressed.
3.2 As can be seen, there is great pressure to address this problem but recognition of the fact that this will involve a cultural change. Having regard to the law (and its non-enforcement) I would respectfully suggest that ‘pavement parking’ is a key legal issue to be enforced by new measures to address what currently appears to the public to be a form of implied permission to park on a footway (in whole or in part).
3.3 In order that driver behaviour is addressed nationally and that a consistent approach is achieved with a minimum of cost and, crucially, absolute clarity for the driver, I would respectfully suggest that a blanket ban be imposed on both pavement and verge parking and that, acknowledging that there are certain locations where parking on the footway should be permissible or may even be desirable (perhaps where the footway is particularly wide and a 2-metre usable width for pedestrians can be preserved) such a national overarching ban then be disapplied to certain locations by statute, preferably, or by explicit reference in the relevant Traffic Regulation Order where occasion demands it. To illustrate this, I would also respectfully suggest that it will minimise costs and aid enforcement if the blanket ban is expressly and statutorily disapplied to any area of highway marked out as a parking place. This would obviate much of the TRO-oriented work both immediately and on an ongoing basis as such markings would automatically disapply the ban while being clear and readily understood by all.
3.4 It is acknowledged that there would be some costs in marking these streets as disapplied from any ban, though, while the erection of signs may be cheaper than the marking and maintenance of parking bay lining, the use of a TRO may negate this. Similarly, while the imposition of ‘pavement parking’ bans could be achieved by the use of Controlled Parking Zones, this Authority would submit that the use of specific traffic orders to ban ‘pavement parking’ would involve not only substantial cost but also the potential to be considered ‘hidden’ restrictions with necessary derogations too confusing for the public. Accordingly, I would respectfully suggest that a better approach is to ensure flexibility through the availability of a range of tools to effect the disapplication of any national ban in order that due allowance could be made for the particular circumstances / local environment (including in Conservation Areas, for example).
4.1 As far back as 1835 it was an offence to take a vehicle onto an area of the highway segregated for the use of ‘foot passengers’. This was in recognition of the substantial harm that could be caused by placing the most vulnerable of traffic in conflict with the most damaging. This same mischief is occurring today with vehicles driving up onto footways outside schools and parking on footways so as to drive pedestrians (often with infants, prams or pushchairs) out into the road.
4.2 Indeed, S.72 Highway Act 1835 (which is referred to in Rule 145 of the Highway Code) provides that an offence is committed: ‘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 …’. While this can, since 1999, be enforced by the issuing by the police of a fixed penalty notice, I am unaware of this being done.
4.3 The police generally do not enforce ‘pavement parking’ nor other traffic offences (other than speeding); instead referring complainants to the local Civil Parking Enforcement Officers (who, in reality, can do nothing to tackle the problem). This failure / inability to take action is all the more stark as S.72, Highways Act 1835 was supported by S.28, Town Police Clauses Act 1847: ‘Every person who in any street, to the obstruction, annoyance, or danger of the residents or passengers … leads or rides any horse or other animal, or draws or drives any cart or carriage, sledge, truck, or barrow upon any footway of any street …’ also commits an offence. S.28 was, however, repealed by the Deregulation Act 2015 and is therefore no longer available.
4.4 While it is recognised that this situation cannot be remedied overnight, it is, in my respectful submission, considered important that the tools exist (and are provided now) so that they may begin to be used to supplement re-education of drivers so that Highway Authorities can once again safely segregate these two traffic flows.
4.5 As such, while I acknowledge that it would seem admirable to achieve a position ‘overnight’ whereby all ‘pavements’ are available solely for the use of the most vulnerable class of highway user, this Authority would respectfully recommend that progress towards this be achieved incrementally and proportionately, beginning with implementation in areas where there is the highest potential for catastrophic conflict (currently considered to be outside schools) and then to look to public benefits (e.g. bus routes) next, and to phase implementation accordingly. This approach could be achieved either by Guidance as to the staging of traffic regulation measures, or merely as to enforcement in the case of a ‘blanket ban’. In any event, it will be necessary to ensure that, in effecting this kind of change it must be achieved in the clearest and most easily understood fashion by highway users – the move to tackling ‘pavement parking’ is a significant one and one which should be clearly flagged up for the public. As indicated above, phased enforcement during the transitional ‘re-education’ phase should then be employed, thus allowing Highway Authorities to direct resources towards ‘hotspots’ first.
4.6 I would therefore respectfully submit that the first stage in addressing ‘pavement parking’ must be educating drivers as to the fact that such conduct is not only unlawful, but detrimental, and would therefore suggest that a short transitional educational period is required before enforcement is undertaken. It is clear to me from experience that some fundamental aspects of driver awareness are in desperate need of ‘refreshing’ and ‘pavement parking’ should be included within this, as there are many instances of everyday driver behaviour which is in direct contradiction of a driver’s original training and conduct during their driving test (e.g. at no point was a learner driver instructed to park their vehicle on the footway, yet it seems an everyday occurrence once many have obtained their licences). A further example of this ‘knowledge-deficit’ is in relation to what ‘loading’ actually means, in relation to which I am aware that innumerable problems are encountered across the County every day where drivers are unaware of where and when they are actually ‘loading’ and therefore when they may stop in a restricted location. I would respectfully suggest that this education point cannot be overstated.
May 2019