Help Forum

Help requested posted on 26th September 2016:

Safety and pavement parking

Where can I find the legislation that says that local authorities have a statutary duty to ensure the local highway network is managed safely? We suffer from lots of pavement parking on our street and neither the Council nor police show any interest in dealing with the problem. It means that pedestrians and disabled have to use the road and mix with the traffic. I'd like to point out to the Local Authority and police that they are in breach of their statutory duty and should, as a bare minimum, have a process underway to reduce the safety risk to pedestrians. Any suggestions?

jeremy callard

Reply to this request


Response posted on 27th September 2016 by:
Nick Ellis

E: nick.ellis@poole.gov.uk
T:

Safety and pavement parking

There are duties and legislation, Jeremy, which relate to maintaining the highway and to obstruction on the highway. I did a search on Google (highways and duty to maintain, highway and obstruction) and found these two items, the first in a commentary on a legal case and the second from the CPS. Hope they give you a flavour only (not the definitive picture) of legislation in place.

The statutory provisions

Section 41(1) of the Highways Act, 1980, provides as follows:

“The authority who are for the time being the Highway Authority for a highway maintainable at the public expense are under a duty … to maintain the highway.”

Section 329 of the Act provides the unhelpful clarification that “maintenance includes repair and “maintain” and “maintainable” are to be construed accordingly.”

Section 58(1) of the Act provides a defence to the absolute duty created by Section 41(1) as follows:

“In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence … to prove that the authority has taken such care as in all the circumstances is reasonably required to secure that the part of the highway to which the action relates was not dangerous to traffic.”

Causing Danger to Other Road Users
Definition, see Wilkinson's Road Traffic Offences (24th edition) A18.74.
This offence may often overlap with other statutory offences, namely:
• Section 137 Highways Act 1980 (wilful obstruction of the highway) (Wilkinson's 6.201);
• Regulation 103 Road Vehicles (Construction and Use) Regulations 1986 and (causing or permitting a vehicle to stand on a road so as to cause an unnecessary obstruction) (Wilkinson's 6.20);
• Section 22 RTA 1988 (leaving vehicles in a dangerous position) (Wilkinson's 6.260);
• Offences under the Criminal Damage Act 1971 (Wilkinson's 15.64);
• Section 161A Highways Act 1980 (lighting fires so as to injure, interrupt or endanger users of a highway);
• Section 131(2) Highways Act 1980 (obliterating or pulling down a traffic sign).


Response posted on 27th September 2016 by:
Peter Wilson

E: pwilson@westminster.gov.uk
T:

pavement parking

Living streets will be able to help.
https://www.livingstreets.org.uk/what-we-do/key-issues/pavement-parking


Response posted on 27th September 2016 by:
Charles Thompson

E: charles.thompson@novo55.com
T:

Footway parking

Highway authorities have a statutory duty in relation to road safety. This can be found in the Section 39 of the Road Traffic Act 1988. I don't think it will be that helpful, but I'd love to know if you are successful.


Response posted on 28th September 2016 by:
Andrew Fraser

E: andrew.fraser@falkirk.gov.uk
T:

Footway parking

Help may be on the way:

https://www.politicshome.com/news/uk/transport/opinion/guide-dogs/68962/clearer-path-parking-free-pavements-government-responds

Might be worth checking on the latest situation with your local MP ...


Response posted on 28th September 2016 by:
Saul Jeavons

E: saul.jeavons@transafenetwork.com
T:

Footway Parking

The duties under the 1988 Road Traffic Act relate to undertaking studies of accidents and taking measures to address those. If what you are experiencing is causing perceived danger rather than resulting in actual collisions, then the local authority don't have a duty to address it.

With limited resources, local authorities have always directed their resources where they will have the most benefit in reducing the collisions that are already happening, rather than potential collision locations where no collisions have occurred. This is even more the case with current local authority budgets.


Response posted on 28th September 2016 by:
Charlie Holland

E: Charlie@palaceofvariety.co.uk
T:

Foot way parking

See
http://researchbriefings.files.parliament.uk/documents/SN01170/SN01170.pdf


Response posted on 29th September 2016 by:
Mark Foweraker

E: m.foweraker@cardiff.gov.uk
T:

Safety and pavement parking

In addition to what has been already said, the Road Traffic Act 1988 clause 39 makes it a duty for Highway Authorities (HA) to "prepare and carry out a programme of measures designed to promote road safety"; "carry out studies into accidents arising out of the use of vehicles" and "in the light of those studies, take such measures as appear to the authority to be appropriate to prevent such accidents".

That looks like you have a case except the scope is ill defined (promote - not prevent; not all accidents; measures as appear ... appropriate) aka loopholes. In any programme you can include everything and then legitimately run out of budget.

Furthermore, when a case went to the High Court trying to show that a fatal collision was the HA's fault due to poor maintenance the judges ruled that a HA cannot make a road safe and the primary duty for road safety lies with the road users.

The other issue is that the two offences related to pavement (footway) parking are "driving on the footway" and "obstruction of the highway (in this case the footway)" both offences that (outside of London) can only be enforced by the police. Some MPs tried to have a Private Member's Bill (noted by others) to extend the power for HAs to enforce pavement parking (and permit it where sustainable) that exists in London. At Committee stage they decided that HAs outside of London would not have the skills to cope with such powers and that a future Committee would investigate.


Response posted on 3rd October 2016 by:
Roy Brocklebank

E: roybrocklebank@talktalk.net
T:

Footpath Parking

North-East Lincs Council bans on-pavement parking and issues penalty enforcement notices. It works!

Try contacting them _ I am in the next county :)


Response posted on 6th October 2016 by:
Jon Benson

E: jon.benson@kier.co.uk
T:

Pavement parking

As a retired Police officer we also had many reports of pavement parking, and unfortunately it is almost accepted practice in many towns because of housing and the numerous cars. Therefore with county solicitors and Council consultation it was decided that a pragmatic approach was required on enforcement. In simple terms if a person/ 2 people or pram was unable to pass the vehicle whilst remaining on the pavement then the offence of obstruction was deemed to have been committed. This was some time back and with Police resources at an all time low good luck getting your local force to manage resources for this, despite the possible consequences.


Response posted on 6th October 2016 by:
John Doyle

E: john.doyle@dft.gsi.gov.uk
T:

Statutory duty on road safety

Local authorities are responsible for road safety on the local road network. Section 39 of The 1988 Road Traffic Act 1988 puts a 'statutory duty' on the local authorities to deliver an appropriate road safety education service and for the provision of a safe local road network. This includes road construction, accident investigation and analysis, traffic calming, setting speed limits and facilities for pedestrians and cyclists. It is up to individual authorities to determine how they meet their "statutory duty".


Response posted on 6th October 2016 by:
Gari

E: gari.garmston@bristol.gov.uk
T:

pavement parking

read this. it neatly sums up the situation in this country.

http://www.publications.parliament.uk/pa/cm201314/cmselect/cmtran/118/118vw02.htm

Basically, the politicians don't have the you-know-whats (political will) to do anything about it.


Response posted on 16th October 2016 by:
Dave H

E: tramsol@aol.com
T:

Footway parking - issues

A fundamental cultural issue might be to change the common terminology to align with the law, and always refer to the part of a carriageway for the use of traffic on foot, as the footway, distinguishing it clearly from the pavement (a generic term) which is the carriageway - for use by carriages and other traffic (cycles defined as this 1888, motor cars 1903)

Any motor vehicle parked on a footway has committed the offence covered by Section 72 Highways Act 1835 (driving a carriage on a footway) but for some daft reason this offence can only be prosecuted in flagrante delicto (which is why many more drivers offend but only cyclists get fined) Every other traffic offence can be prosecuted with photographic evidence (red light running, bus lane use, speeding) with the charge raised against the keeper. At a stroke we could deliver FPN fines and penalty points if Section 72 was aligned with other laws.

For vehicles over 7.5T you do have Section 19 RTA 1988, and this could be delivered with photographic evidence, and may also have enforcement avenues via DVSA and the Traffic Commissioners. Smart Council staff will keep an eye open for O Licence applications relating to HGV operating bases, as an enforceable condition can be applied to an O Licence limiting parking and access via streets close to a depot (GV(LO)1995). I note that in the past Spelthorne were pretty hot on this

For Section 137 I'd ask others whether this also can be prosecuted from a photograph, and a local arrangement might enable Parking Attendants to supply photographs to the Police to prosecute.

Finally unless otherwise posted, my understanding is that parking restrictions (yellow lines and CPZ) apply to the outside edges of the footways, thus many cars parked on a footway, with yellow lines on the carriageway can be ticketed for parking fines.


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