Memorandum by Duncan Cameron Esq (WTC
03)
WALKING IN TOWNS AND CITIES
PAVEMENT
OBSTRUCTIONS AS
DETERRENTS TO
WALKING
A. INTRODUCTION
About me
A year ago my partner and I got a large rescue
dog. This meant that not only did we walk more regularly (1½
hours a day) but we became a "wide" group. As a couple
we thought nothing of having to go single file past obstructions
but now, with a large undisciplined dog, we began to notice the
nuisance and danger these caused. Lack of Council action led me
to join the Pedestrians Association and I am now their Local Contact
for Denbighshire. I feel I represent an ordinary citizen wishing
to walk in a completely ordinary way. Others might have pushchairs
or disabled buggies and similarly feel restricted by these obstructions.
But even without any special circumstances the acceptance of pavement
obstructions demonstrates society's values: pedestrians' needs
and rights are valued less than motorists' and others'.
About my town
St Asaph is a small (population about 3,500)
unremarkable town in North Wales. I estimate that 40 per cent
of businesses in town obstruct the pavement with advertising signs
(a total of 15 signs), perhaps 10 per cent of cars pavement park
and 5 per cent of properties have vegetation significantly overgrowing
the pavement.
Deterrents to walking
Dog mess, litter, cycling, anti-social behaviour
and speeding cars are, of course, also a deterrent to walking
but can be difficult/expensive to prevent/prosecute. Obstructions
are easy and cheap to prevent/prosecute in comparison as offenders
are property owners who can be easily traced and are able to pay
costs.
B. LAW
1. The Law:
(a) The Council has the power "to require
the removal of anything deposited on a highway so as to constitute
a nuisance" (Highways Act, 1980, Section 149).
(b) The Council has the power "to require
that free passage along the highway is not wilfully obstructed
in any way (Highways Act, 1980, Section 137).
(c) The Council has a duty "to assert
and protect the rights of the public to the use and enjoyment
of the highway (Highways Act, 1980, Section 130).
(d) The Council has the power "to require
that vehicles are not driven on footways and verges" (Highways
Act, 1835, Section 72; Road Traffic Act, 1988, Section 191).
(e) Police are required not to show "favour
or affection" towards some and "malice or ill-will"
towards others (Police Act, 1964, Section 18 and Second Schedule).
[ie prosecuting a pedestrian for obstructing vehicles by illegally
leaving their possessions on the road but not prosecuting vehicle
owners for illegally leaving their possessions (cars) on the footway.]
Note: The term "highway" includes
both the carriageway (road) and the footway (pavement).
2. The curb: "to curb" means to
limit or to place a boundary; a curb should be a boundary dividing
the highway into a carriageway and a footway. Pavement parking
contravenes this fundamental distinction.
C. TYPES OF
OBSTRUCTION
Pavement parking.
(a) Should be prosecuted according to 1(a)
to (e) above.
(b) If pedestrians placed a chair on the
carriageway it would be removed immediately, even though it would
obstruct a smaller proportion of the road than when a car parks
on the pavement. Cars could slow down and take care to avoid the
chair, as pedestrians have to with parked cars. The Highways Act
applies equally to the road and the footway. Pedestrians are being
discriminated against [1(e) above].
(c) Contravenes the most basic division of
the highway, defined by the curb.
(d) Encourages speeding traffic by giving
it more room.
(e) Infringes the rights of pedestrians to
their use of public property.
(f) Due to lack of prosecution it has become
socially acceptable by drivers.
(g) The disabled and those with children
suffer the most.
(h) Most unacceptable in residential areas:
many people stop parking on their private parking spaces, often
turning them into garden, only to then park on the pavement routinely.
(i) Who is liable for injury/damage caused
if authorities have been notified? Does car insurance always cover
the driver's liability here? Are Councils covered by insurance
if they are proven to have failed to fulfil their legal obligations?
(j) Enforcement would not require a change
in the law, would reduce speeding and increase walking as per
Government policy, would decrease damage to pavements, and the
consequent injuries, and to underlying pipes and cables.
(k) Problems with prosecuting as an obstruction
can be avoided if police ask who parked the car: this would result
in the admission of an offence [1(d) above].
(l) If car owners are concerned about damage
from speeding cars there are legal alternatives to pavement parking:
inform police about speeding or the Council for traffic calming
or altering the carriageway width.
Advertising signs.
(a) Should be prosecuted according to 1 (a),
(b), (c), (e).
(b) If these signs were placed on the carriageway
they would be removed immediately, even though they obstruct a
smaller proportion than when on the pavement. Cars could slow
down and take care to avoid the signs, as pedestrians have to.
The Highways Act applies equally to the road and the footway.
Pedestrians are being discriminated against [1 (e) above].
(c) Infringes the rights of pedestrians to
their use of public property.
(d) Presents a real danger whatever their
size (as is recognised by motorists).
(e) Due to lack of prosecution it has become
socially acceptable by businesses.
(f) The disabled and those with children
suffer the most.
(g) Signs may represent a health hazard indoors
as dogs regularly urinate on them.
(h) Enforcement would encourage walking as
per Government policy.
(i) Businesses have many legal alternative
ways to advertise.
Overhanging vegetation.
(a) Should be prosecuted according to 1 (a),
(b), (c).
(b) There seems to be no question that this
problem is unacceptable, the only problem being a lack of actual
enforcement (see below).
D. AUTHORITIES
AND RESPONSE
TO ENFORCEMENT
REQUESTS
Police and pavement parking:
(a) They informed me on the phone: "It's
illegal and we take action".
(b) Community policeman spent two hours over
several meetings with me discussing the level of reasonable enforcement.
(c) Community policeman agreed to visit persistent
offenders in residential areas to inform them of the offence and
request compliance with the law. Also agreed to have produced
official police notices to place on cars. Prosecution would occur
if offenders persisted.
(d) Result: short-term improvement in spring
2000 but no response to two letters detailing offenders in September
and November. No sign of notices being issued.
Council and advertising signs:
(a) Informed Council in March 2000 about
a sign at the Barrow Arms obstructing 50 per cent of a four foot
wide pavement: they said others had complained in previous years.
Reply: they would write to the offender. In April I informed them
of all 15 signs in the town.
(b) Informed Council in early May that the
Barrow Arms sign was still there. Reply: they would write to the
offender again. Repeated in late June and August. On 8 December
I phoned the police about this sign.
(c) I have continually asked the Council
for details of their policy and procedures in dealing with these
signs and also the question of liability for injury/damage. They
have refused to say more than that every case is different and
that they use their judgement as to what "constitutes a real
danger or major obstruction risk to highway users" (in contrast
to the law in 1 above). I have asked specifically if they base
their judgement on "percentage pavement obstructed"
or "minimum width unobstructed" etc, but no reply. Nor
will they say in what cases would they prosecute: how many letters
have they written to the Barrow Arms?
(d) Replies from the Council include:
— "Businesses benefit the
local community". The suggestion is then that this should
excuse them breaking the law for their own profit even though
they can advertise in many legal ways.
— "In some cases it is difficult
to determine the highway/property interface". They have not
replied to my question as to how common this problem is.
— "Previous case law has shown
that a Local Authority does not have Carte Blanche rights to remove
signs". Cardiff Council seems to have done exactly this,
combined with a licensing system.
(e) The Denbighshire Council Website, "Key
Strategic Objectives" says "We are committed to improving
people's awareness of our role and function and we are committed
to consultation and open communication so as to strengthen local
democracy". I have seen no such commitment in my experience.
(f) Flintshire Council replied, concerning
all types of pavement obstructions, "This is ultimately an
issue for the police as they have the powers of enforcement".
This is misleading advice at best.
(g) I have not yet approached Councillors
about these issues.
Council and overhanging vegetation:
(a) In March 2000 I informed the Council
of several instances and they replied they would write to offenders.
After many reminders by myself about 50 per cent of offenders
have cut these back. Others have not.
(b) The Council does not follow up these
offences to check for compliance.
(c) The Council have outlined their policy
and procedure: to write themselves, then to get their legal department
to write and then to prosecute, but they have clearly not followed
this procedure.
E. SUGGESTIONS
Allowing pavement parking and advertising sign
obstructions encourages drivers and businesses to take the law
into their own hands. Once people start doing this regularly,
however reasonable it may be to begin with, it soon gets out of
hand and becomes unreasonable. Zero tolerance, perhaps with well-defined
exceptions to zero-tolerance, seems the only sustainable way forward
(eg licensing of advertising signs).
Zero tolerance of obstructions should not be
seen as perfectionist: theft of £5 from a millionaire is
still theft and would be prosecuted—here we have, effectively,
theft of public property by private individuals and it should
be viewed in the same way.
Enforcement of sign obstruction should follow
the same procedure as overhanging vegetation: Council letter,
Solicitor's letter, prosecution (with a defined time scale). In
both cases Councils could remove the obstruction and charge the
offender for costs.
Could private companies enforce pavement parking
law, and speeding, along the lines of clamping?
Could Local Councils authorise members of the
public to carry out trimming of obstructing vegetation in their
street/area?
Could Neighbourhood Watch groups monitor and
report pavement parking and signs, and perhaps be authorised by
the Council to cut back vegetation?
As a national policy could Community policemen
routinely issue pavement parking warning notices, noting registration
numbers in case they re-offend?
Could schools be issued with notices warning
of fines for cycling on the pavement? (I have seen a disabled
buggy swerve off the pavement on to the "wrong side"
of the road, against on-coming traffic, to avoid on-coming cyclists
on the pavement).
Councils erect dog mess warnings everywhere:
why not the same for pavement parking and cycling?
Dog mess: Could the law require dog walkers
to carry faeces-removal equipment?
CCTV and litter/dog mess/cycling/anti-social
behaviour/speeding: the only long-term solution will depend on
being able to get good enough evidence of these offences to provide
a genuine deterrent. While towns full of CCTVs together with centralised
databases worry many, and would be complex and expensive to run,
a decentralised Big Brother would both protect privacy and allow
good law enforcement. In 5-10 years many people will have computers
and cheap, remote, digital cameras may be commonplace. If individuals
were encouraged to place a camera pointed at their car and/or
their pavement, then this allows the information to be captured.
Public buildings could all have internal cameras also (schools
especially). These could download to secure websites. Local systems
could then manage this information. Neighbourhood Watch schemes
might co-ordinate a number of streets, sending requests for evidence
to householders when asked to do so by the police, or householders
could send evidence to the Neighbourhood Watch. Community Councils
could co-ordinate at the next higher level together with local
businesses in non-residential areas, perhaps forwarding images
of children to Parent/School groups for identification, for example.
No one organisation would have access to all the information,
only the whole system. The police, of course, could get a court
order to require disclosure from anyone in serious cases, such
as recent child murders, etc.
December 2000
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