We recently received some traffic advice from LBB which included the following :
Whilst there is no right to park on any highway, the right being restricted to passing and repassing, where parking restrictions have not been imposed by the Highway Authority, it is expected that parking will be tolerated, subject to its duration and provided that it does not cause an actual obstruction of the highway.
The final paragraph about no right to park on any highway and tolerating parking was intriguing. As lay people, our thoughts about parking were pretty much what we had been told by our parents or peers: “If you’ve paid your road tax, you can park where you like” (subject of course to private land, CPZs etc.). Not so! Some research was undertaken (no SatNav was needed) and below is a summary of the more interesting points, which we hope will be useful and perhaps stimulate some interesting discussion.
The law is that of England and Wales and appears to be a muddle of confusing, ineffective and widely ignored regulations. There are many unenforceable ‘should nots’. ‘Do Nots’ from the Highway Code seem to have no legal weight at all.
Remarkably, there is apparently no legal right in law to leave a vehicle, or any other private property on the highway. The DfT website is silent on the matter, however Suffolk County Council is clearer stating that “There is no legal right for anyone to park on a public road or outside their property“. Similarly, Surrey County Council states that “in common law, drivers have the right to pass and re-pass along the road. There is no legal right to park on a road, verge or footway“.
It is also illegal to drive on or across the pavement other than to gain legal access to a property, and has been since before cars were invented! Section 72 of the Highways Act 1835, which is still in force, explains the offence.
Section 72 of the Highways Act 1835 makes it illegal to ‘tether any horse, ass, mule, swine, or cattle, on any highway‘. Regrettably, this clause failed to include ‘carriage of any description’ in the list. It is therefore illegal to ‘park’ a horse, cow or any other swine on the pavement, but not a motorcar or indeed a bicycle!
Back in 1926 the AA Members Handbook warned drivers not to leave their vehicle unattended on the highway. The 1931 version of the Highway Code stated that “No vehicle should be left standing on the highway for a longer time than is reasonable in the circumstances.” The Road Traffic Act 1930 and Road Traffic Act 1960 included detailed instructions about how authorities could create legal on-street parking bays (with the implication that parking elsewhere was ‘obstruction’ and therefore would not be allowed). These parking restrictions were however widely ignored and were repealed in 1972.
Civil or police enforcement – who is in charge?
Civil Enforcement is encouraged because it allows the police to concentrate on more serious issues and gives the authority control of an important part of its traffic management remit. The main disadvantage of civil enforcement is that you need to have the right person for each situation. That being said, there are situations where both parties will be able to respond because their is both a civil offence and obstruction. Obstruction is very hard and expensive to prove so lets deal with that one last.
Parking across a dropped-kerb
This would be useful if one knew if it was in force in any particular area however it seems to be impossible to find out where it is in force. To explain…
Councils and police can ticket vehicles that blocked dropped kerb used to “assist pedestrians crossing the road” and also in places where the carriageway “has been raised to meet the level of the pavement” under the Traffic Management Act 2004 (section 86), but only in the area has asked for and been granted ‘Special Enforcement Area’ status.
Unfortunately, it seems to be impossible to find a map or list on the web showing which parts of the country have this status and which haven’t. The Highway Code Rule 243 still only says ‘Do not’ rather than ‘You must not’probably because it is not universally applied.
Leaving ‘things’ (including advertising boards) on the highway
According to the Highways Act 1980 ( Section 148 and Section 149) it is an offence if ‘a person deposits anything whatsoever on a highway to the interruption of any user of the highway without lawful authority or excuse or if the thing “constitutes a nuisance” ‘ or constitutes a “danger to users of the highway (including a danger caused by obstructing the view)” then they can remove it without delay and recover the cost of removal from the owner. This can be used by councils (sometimes) to removed advertising boards.
Unfortunately, this clause is however used far more by councils to make local residents remove posts and painted rocks placed on the verge to stop vehicles parking on them than to remove the cars which could also be covered by the regulation.
Consider taking photos and send them to LBB or put them on Fixmystreet.
Leaving ‘structures’ on the highway
Section 143 of the Highways Act 1980 gives authorities powers to remove any “structure [that] has been erected or set up on a highway“, including “any machine, pump, post or other object of such a nature as to be capable of causing obstruction notwithstanding that it is on wheels”. This is interesting. This covers things that ‘are capable of causing an obstruction’ with no requirement to prove that it was an ‘unnecessary obstruction’ and a ‘willful obstruction’ and that anyone was actually “obstructed”, all of which make other obstruction regulations pretty much useless. Does the phrase ‘any other object of such a nature as to be capable of causing obstruction notwithstanding that it is on wheels‘ include motorcars, caravans, motor-homes etc? Not clear perhaps?
Leaving a vehicle in a position where it may cause a ‘danger of injury’
The Road Traffic Act 1988 (Section 22) says that it is an offence “if a person in charge of a vehicle causes or permits the vehicle or a trailer drawn by it to remain at rest on a road in such a position or in such condition or in such circumstances as to involve a danger of injury to other persons using the road.”
Unfortunately, these regulations seem to be ignored at present as it is hard to prove that a particular situation is dangerous enough to be worth prosecuting and risking have the court decide against the prosecution. Councils and police have wildly different views on what might be a cause a danger and what might not be.
Odd-ball local Acts of Parliament
Believe it or not, a number of places apparently have had their own Acts of Parliament banning pavement parking. The parliamentary briefing paper of 2006 mentions Exeter, Hereford and Worcester as well as London. In addition to these Act I have also discovered that Surrey has its own curiosity. This just reinforces the view that this whole legal area is a mess. How are people expected to know how to law varies in these random places?
This comes last because it seems to be very ineffective.
Obstruction is covered by a variety of acts, going back to 1847!
The police can deal with obstruction very simply by issuing a fixed penalty notice. The problem is proving that the obstruction was unnecessary and willful it seems.
It is generally agreed that a pavement is obstructed if someone entitled to use the pavement is not able to do so because of an obstruction. If two people have to walk one in front of each other then this is apparently not obstruction. If it is not possible to pass with a double-buggy or in a wheelchair then it is only obstruction if you have a double buggy or a wheelchair and are not able to use it. If as a result of extreme pavement parking no one even bothers to try to use it then there is apparently no obstruction.
However… of course, as soon a someone does try to use one then there may be obstruction but nothing will be done unless the police are there and deemed it to be obstruction – they may, however, say it isn’t because a pedestrian could walk in the carriageway.
This article has quoted widely from legislation. Research was made to ensure, as far as possible, all references were accurate and up to date. The views expressed are those from a variety of sources, not necessarily those of the author. E&OE.
By Barry Wood