This article first appeared in Parking News http://www.britishparking.co.uk/parking-news
Christian Constantinides, Associate Director for Parking) at Project Centre, part of the NSL group, highlights just how challenging enforcing parking regulations can be on housing estates in the UK.
A lot of confusion seems to be arising amongst some local authorities regarding the enforcement of parking controls on their housing estates and for others the subject is raising some difficulties and dilemmas.
When the Protection of Freedoms Act 2012 (the PoFA) came into force in October 2012, it became illegal for land owners (including local authorities) to clamp or tow-away unauthorised vehicles parked on their private land. Whilst the Act gave powers to other land owners to impose conditions (such as time limits and charges) for parking on their land and to have recourse to the keeper of the vehicle for payment of a penalty if the driver cannot be found, this was not extended to local authorities. This prevents local authorities from using the provisions of the PoFA and instead, encourages them to use only one system of parking enforcement throughout their area: the issue of Penalty Charge Notices (PCNs) under the Traffic Management Act 2004.
The PoFA did not take away the power that a local authority has to enforce parking controls on their housing estates under contract law. A local authority may still issue a Notice requiring payment of a parking charge or fixed penalty (commonly known as a fine) if an unauthorised vehicle parks on one of their estates, provided that the contract is made clear to the driver and provided they do not use the provisions of the PoFA. This can be done by putting up signs informing the driver of the conditions (the contract) that they agree to adhere to by parking on the estate, such as displaying a valid permit. However, the difficulty with this method is that only the driver can break the contract so no recourse can be made to the keeper of the vehicle, and finding the driver and then proving they were driving when the vehicle was parked is often impossible. Even if the driver can be found and proved, if a Notice issued to them is ignored then the local authority has only one course of action if they want payment and that is to take action through the courts which can be costly and time consuming. In reality, some local authorities enforce using contract law in the hope that it will deter unauthorised parking and also in the hope that whilst some drivers will not pay the charge others might.
The only practical way for a local authority to enforce parking controls on their housing estates is for them to be able to take action against the keeper of an unauthorised vehicle and this means making Orders under the appropriate sections of the Road Traffic Regulation Act 1984 and then enforcing them under the provisions of the Traffic Management Act 2004. Its only enforcement under this Act that allows a local authority to operate on the basis that the keeper of the vehicle is liable for the parking charge (even if they were not the driver) and it is only for reasons of enforcement under this Act that the local authority should gain access to DVLA records to find the keeper of the vehicle.
However, actually achieving enforcement under the Traffic Management Act 2004 is fraught with difficulties and dilemmas. One of the biggest dilemmas for a local authority introducing parking controls on their housing estates by Order is how to determine what type of Order to make. If the parking places on the estates are on a road and parking is free of charge then Orders should be made under section 32(1)(b) of that Act outside Greater London (section 6 within Greater London); if a charge is made for a parking permit then Orders should be made under section 45 of that Act (but this only applies if the parking places are on a highway) and if the parking places are on land that is not a road (i.e. off-street), then the Orders should be made under section 35 of that Act. Parking places on housing estates are likely to fall into more than one category, meaning that more than one Order could be required. The local authority must therefore make a decision on whether the parking places on the estates are on a road or on land that is off-street or (in certain cases) on a highway. All too often the category is debatable, often coming down to an informed matter of opinion. However, the right decision is crucial because it affects what traffic signs should be used and what offence code should be put on a PCN.
If the parking places are on a road, then the signs must comply with the Traffic Signs Regulations and General Directions 2016. The existing signs on many housing estate roads do not comply with this and changing the signs can be costly (however, this is not a requirement in the case of off-street parking places where the signs are not regulated, although there is still an obligation on local authorities to ensure that the signs fully inform drivers about how and where they can park).
Another dilemma is that, except in the case of an off-street parking place, charges for parking permits can only be made for parking on a highway. This can be un-adopted highway (such as estate roads which have been used by the public without specific permission and as of right for more than 20 years). However, most local authorities do not keep up to date records of un-adopted highways, so it can be difficult to determine where these are and to prove that they are highways. An ideal solution to the problem would be for the local authority to adopt all the roads and parking areas on their estates and make them highway maintainable at the public expense, but for most this is not a financially viable option.
Usually the only way of determining the category, is for the local authority to carry out a site survey of each estate and then, based on the visual information and known history of the use of those areas by the public, make a decision on what is a road, a highway or an off-street parking area. Coming to such a decision is not always easy and it is often subjective so there can be a risk that PCNs could be challenged at adjudication on the basis that the Order has been made under the wrong section of the Act or that the offence code on the PCN is an on-street code when it should have been an off-street code and vice versa.
However, despite these difficulties and dilemmas, the most practical method of enforcing parking controls on local authority housing estates (and the one that is encouraged by the government) is surely to make Orders under the Road Traffic Regulation Act 1984 which then enables enforcement under the Traffic Management Act 2004 against the keeper of the vehicle. Its granted that the local authority needs to make a difficult (but informed) decision about whether the estates consist of road, off-street areas, highways or a combination of these. But once a decision has been reached on that, the decisions about which type of Orders to make, how the parking controls should be signed and what PCN offence codes should be used on PCNs will easily follow on.
Clearly, this is a complicated and emotive subject. Our interpretation of how to approach and enforce these regulations is not definitive and any legislation rulings are a matter for the courts to decide. But as more and more housing is being built, local authorities will need to ensure they are fully aware of all aspects of the PoFA and the best way to enforce these rules for residents and motorists alike.