Dropped curbs

TheJP

Section62 said:

TheJP said:

Section62 said:

TheJP said:

I would ask the sellers why there is no dropped curb, if they say it was denied then you don't have any lawful right to park in front of the property by way of driving over the footpath.

Only if the council has issued a planning enforcement notice, or a highway notice requiring the access not to be used by vehicles.

All footways unless stated otherwise are enforceable if you are deemed to be driving over it to access parking unless granted.

"Enforceable" by who, and for what offence?

Driving across a footway or verge for the purpose of gaining access to land adjoining a highway maintainable at public expense is not an offence unless there is an active notice specific to the property prohibiting that action.  There is a right in common law to gain such access, unless specifically prohibited.

Rule 145 in the Highway Code acknowledges this in the wording "...except to gain lawful access to property..."

The relevant statute law (Highways Act 1835 S72) makes no provision for anything to be "granted".

Where permission for a crossover is granted by a highway authority, this is done under Highways Act 1980 S184.  This section doesn't make it an offence to drive across a footway or verge, unless in contravention

"of any condition imposed under subsection (1)(b)".  In other words, unless a valid notice is served under subsection (1)(b) no offence under S184 can be committed.

Lots of websites (including several council ones) will say otherwise, but they are incorrect. The highway authority's powers under S184 are related to the protection of infrastructure, not preventing people accessing adjoining land.  However, the latter can be restricted by planning law and certain local acts.

Section 72 of the Highways Act 1835 is used in the current Highway Code. Rule 145 states:

"You MUST NOT drive on or over a pavement, footpath or bridleway except to gain lawful access to property, or in the case of an emergency."

Unless the property has a ROW over the pavement i fail to see your point here.

Section62

TheJP said:

Section62 said:

TheJP said:

Section62 said:

TheJP said:

I would ask the sellers why there is no dropped curb, if they say it was denied then you don't have any lawful right to park in front of the property by way of driving over the footpath.

Only if the council has issued a planning enforcement notice, or a highway notice requiring the access not to be used by vehicles.

All footways unless stated otherwise are enforceable if you are deemed to be driving over it to access parking unless granted.

"Enforceable" by who, and for what offence?

Driving across a footway or verge for the purpose of gaining access to land adjoining a highway maintainable at public expense is not an offence unless there is an active notice specific to the property prohibiting that action.  There is a right in common law to gain such access, unless specifically prohibited.

Rule 145 in the Highway Code acknowledges this in the wording "...except to gain lawful access to property..."

The relevant statute law (Highways Act 1835 S72) makes no provision for anything to be "granted".

Where permission for a crossover is granted by a highway authority, this is done under Highways Act 1980 S184.  This section doesn't make it an offence to drive across a footway or verge, unless in contravention

"of any condition imposed under subsection (1)(b)".  In other words, unless a valid notice is served under subsection (1)(b) no offence under S184 can be committed.

Lots of websites (including several council ones) will say otherwise, but they are incorrect. The highway authority's powers under S184 are related to the protection of infrastructure, not preventing people accessing adjoining land.  However, the latter can be restricted by planning law and certain local acts.

Section 72 of the Highways Act 1835 is used in the current Highway Code. Rule 145 states:

"You MUST NOT drive on or over a pavement, footpath or bridleway except to gain lawful access to property, or in the case of an emergency."

Unless the property has a ROW over the pavement i fail to see your point here.

The point is, that unless a highways notice (or similar) has been served, all properties which adjoin a highway maintainable at public expense do have a "ROW"* across the verge or footway - this is the common law right referred to above.

There is no catch-all offence of driving across a footway or verge to gain access to adjoining land.

As I said in my first embedded reply above - [there is no right...by way of driving over the footpath] "Only if the council has issued a planning enforcement notice, or a highway notice requiring the access not to be used by vehicles."  Those notices would make use of the access unlawful, in which case Rule 145's "MUST NOT" would be correct.

*The "pavement" (correctly known as a footway) is highway, the public (which includes property owners) have the right to pass and repass over highway, unless restricted by order.  There is no need for anyone to be granted RoW over highway land.

Cressida100

housebuyer219 said:

1) is dropping a curb expensive 

A neighbour  of mine is in the process of having his front garden paved and he has to pay just under £2K to have the kerb dropped. I guess it depends what council area you come under. 

Section62

Cressida100 said:

housebuyer219 said:

1) is dropping a curb expensive 

A neighbour  of mine is in the process of having his front garden paved and he has to pay just under £2K to have the kerb dropped. I guess it depends what council area you come under. 

This^

The cost can also increase if any other work needs to be done - e.g. moving a lamp column, cutting down a tree, or if utility plant needs to be protected (phone/cable/electric etc).

TheJP

Section62 said:

TheJP said:

Section62 said:

TheJP said:

Section62 said:

TheJP said:

I would ask the sellers why there is no dropped curb, if they say it was denied then you don't have any lawful right to park in front of the property by way of driving over the footpath.

Only if the council has issued a planning enforcement notice, or a highway notice requiring the access not to be used by vehicles.

All footways unless stated otherwise are enforceable if you are deemed to be driving over it to access parking unless granted.

"Enforceable" by who, and for what offence?

Driving across a footway or verge for the purpose of gaining access to land adjoining a highway maintainable at public expense is not an offence unless there is an active notice specific to the property prohibiting that action.  There is a right in common law to gain such access, unless specifically prohibited.

Rule 145 in the Highway Code acknowledges this in the wording "...except to gain lawful access to property..."

The relevant statute law (Highways Act 1835 S72) makes no provision for anything to be "granted".

Where permission for a crossover is granted by a highway authority, this is done under Highways Act 1980 S184.  This section doesn't make it an offence to drive across a footway or verge, unless in contravention

"of any condition imposed under subsection (1)(b)".  In other words, unless a valid notice is served under subsection (1)(b) no offence under S184 can be committed.

Lots of websites (including several council ones) will say otherwise, but they are incorrect. The highway authority's powers under S184 are related to the protection of infrastructure, not preventing people accessing adjoining land.  However, the latter can be restricted by planning law and certain local acts.

Section 72 of the Highways Act 1835 is used in the current Highway Code. Rule 145 states:

"You MUST NOT drive on or over a pavement, footpath or bridleway except to gain lawful access to property, or in the case of an emergency."

Unless the property has a ROW over the pavement i fail to see your point here.

The point is, that unless a highways notice (or similar) has been served, all properties which adjoin a highway maintainable at public expense do have a "ROW"* across the verge or footway - this is the common law right referred to above.

There is no catch-all offence of driving across a footway or verge to gain access to adjoining land.

As I said in my first embedded reply above - [there is no right...by way of driving over the footpath] "Only if the council has issued a planning enforcement notice, or a highway notice requiring the access not to be used by vehicles."  Those notices would make use of the access unlawful, in which case Rule 145's "MUST NOT" would be correct.

*The "pavement" (correctly known as a footway) is highway, the public (which includes property owners) have the right to pass and repass over highway, unless restricted by order.  There is no need for anyone to be granted RoW over highway land.

Prohibition of driving mechanically propelled vehicles elsewhere than on roads.E+W

(1)Subject to the provisions of this section, if without lawful authority a person drives a mechanically propelled vehicle—

(a)on to or upon any common land, moorland or land of any other description, not being land forming part of a road, or

(b)on any road being a footpath, bridleway or restricted byway,

he is guilty of an offence.

Road traffic act section 34 updated in 1988

https://publications.parliament.uk/pa/cm201314/cmselect/cmtran/writev/parking/m01.htm#:~:text="You MUST NOT drive on,case it goes to court. Fines started being issued from 1999. I've checked all gov sites relating to this and nothing states that there must be a highways notice to make it enforceable. Care to share your homework?

DiamondLil

Where I am, the council drops bollards onto the footpath at the boundary of properties that have cars parked on the front yard without having a dropped kerb.

Section62

TheJP said:

Section62 said:

Prohibition of driving mechanically propelled vehicles elsewhere than on roads.E+W

(1)Subject to the provisions of this section, if without lawful authority a person drives a mechanically propelled vehicle—

(a)on to or upon any common land, moorland or land of any other description, not being land forming part of a road, or

(b)on any road being a footpath, bridleway or restricted byway,

he is guilty of an offence.

Road traffic act section 34 updated in 1988

This section is about driving mechanically propelled vehicles elsewhere than on roads.

A "footway" forms part of road.  So (1)(a) is not applicable in relation to crossing a footway to gain access to property adjoining a highway maintainable at public expense.

(1)(b) relates to roads which are footpaths, bridleways or restricted byways.  A "footway"* adjacent to a carriageway isn't a footpath, bridleway or restricted byway, therefore (1)(b) isn't applicable in this case.  (Note: this is where the correct use of the word "footway" rather than "footpath" is important, and partly why I pointed out the correct term in my previous post)

TheJP said:

https://publications.parliament.uk/pa/cm201314/cmselect/cmtran/writev/parking/m01.htm#:~:text="You MUST NOT drive on,case it goes to court. Fines started being issued from 1999. I've checked all gov sites relating to this and nothing states that there must be a highways notice to make it enforceable.

Note the headings on that page - "Local Authority Parking Enforcement" and "PAVEMENT PARKING".

The law relating to pavement parking and LA parking enforcement differs from the law relating to access to property adjoining a highway maintainable at public expense.  The latter is to do with highway act protection of infrastructure, and in some cases a moving traffic enforcement issue.

The right to cross a footway or verge to access adjoining property doesn't apply if you are parking on the footway/verge.

Note also that the link appears to be evidence given to a HoC committee by an Executive Editor of a website, rather than a definitive statement of law by the Government or Parliament.

TheJP said:

Care to share your homework?

You would need to read a Highway Law textbook.  The point is a techinical one, and I'd doubt you'd find it on an 'official' website aimed at the public.

Trying to steer us back towards the OP's situation, the technicality is important because when it comes to enforcement the highway should be providing reasons why the footway cannot be crossed, rather than stating the footway cannot be crossed without permission.  This is why S184 is worded the way it is.

TheJP

Section62 said:

TheJP said:

Section62 said:

Prohibition of driving mechanically propelled vehicles elsewhere than on roads.E+W

(1)Subject to the provisions of this section, if without lawful authority a person drives a mechanically propelled vehicle—

(a)on to or upon any common land, moorland or land of any other description, not being land forming part of a road, or

(b)on any road being a footpath, bridleway or restricted byway,

he is guilty of an offence.

Road traffic act section 34 updated in 1988

This section is about driving mechanically propelled vehicles elsewhere than on roads.

A "footway" forms part of road.  So (1)(a) is not applicable in relation to crossing a footway to gain access to property adjoining a highway maintainable at public expense.

(1)(b) relates to roads which are footpaths, bridleways or restricted byways.  A "footway"* adjacent to a carriageway isn't a footpath, bridleway or restricted byway, therefore (1)(b) isn't applicable in this case.  (Note: this is where the correct use of the word "footway" rather than "footpath" is important, and partly why I pointed out the correct term in my previous post)

TheJP said:

https://publications.parliament.uk/pa/cm201314/cmselect/cmtran/writev/parking/m01.htm#:~:text="You MUST NOT drive on,case it goes to court. Fines started being issued from 1999. I've checked all gov sites relating to this and nothing states that there must be a highways notice to make it enforceable.

Note the headings on that page - "Local Authority Parking Enforcement" and "PAVEMENT PARKING".

The law relating to pavement parking and LA parking enforcement differs from the law relating to access to property adjoining a highway maintainable at public expense.  The latter is to do with highway act protection of infrastructure, and in some cases a moving traffic enforcement issue.

The right to cross a footway or verge to access adjoining property doesn't apply if you are parking on the footway/verge.

Note also that the link appears to be evidence given to a HoC committee by an Executive Editor of a website, rather than a definitive statement of law by the Government or Parliament.

TheJP said:

Care to share your homework?

You would need to read a Highway Law textbook.  The point is a techinical one, and I'd doubt you'd find it on an 'official' website aimed at the public.

Trying to steer us back towards the OP's situation, the technicality is important because when it comes to enforcement the highway should be providing reasons why the footway cannot be crossed, rather than stating the footway cannot be crossed without permission.  This is why S184 is worded the way it is.

This is painful. Your argument is that anyone can drive a vehicle over a pavement, clearly the law says unless its lawful or an emergency (even you quote this) you cant unless you have the right permission to do so, a dropped curb would mean permission has been granted by the parish/council to do so.. I'm guessing the fact that the highway outside of the OPs potential house has double yellow lines means you are forbidden to park on said highway as well.

OP to get away from the pedanticism of mine and sec62 thread, find out why they don't have a dropped curb and then figure out if you want to continue.

Section62

TheJP said:

Your argument is that anyone can drive a vehicle over a pavement,

No, it isn't that.

At the risk of repeating myself, there is a right at common law to access property adjoining a highway maintained at public expense, even if that means driving across a verge or footway.  The exception to that is in specific cases where there is either highway or planning enforcement (by notice) which has restricted or removed that right.

Therefore the OP should be able to park on the property they are considering buying unless there is either a highway or planning notice saying they can't.  The risk the OP takes is that one of these notices is issued during their ownership of the property.  Otherwise they, and a future purchaser, could continue parking there without committing an offence.

TheJP said:

...clearly the law says unless its lawful or an emergency (even you quote this) you cant unless you have the right permission to do so...

Which law clearly says that?  Where in the body of legislation is there a reference to having the "right permission to do so"?

TheJP said:

a dropped curb would mean permission has been granted by the parish/council to do so..

Firstly, parishes have no role in this.

Secondly, a dropped kerb does not equal "permission".  A vehicular crossover simply means the highway has been constructed or modified to facilitate access to land adjoining the highway whilst protecting highway and utility infrastructure.  The right to cross the footway exists at common law (see above) - it isn't in the gift of the highway authority.  The actions a highway authority and/or local planning authority can take are to apply restrictions on this right.

TheJP

Section62 said:

TheJP said:

Your argument is that anyone can drive a vehicle over a pavement,

No, it isn't that.

At the risk of repeating myself, there is a right at common law to access property adjoining a highway maintained at public expense, even if that means driving across a verge or footway.  The exception to that is in specific cases where there is either highway or planning enforcement (by notice) which has restricted or removed that right.

Therefore the OP should be able to park on the property they are considering buying unless there is either a highway or planning notice saying they can't.  The risk the OP takes is that one of these notices is issued during their ownership of the property.  Otherwise they, and a future purchaser, could continue parking there without committing an offence.

TheJP said:

...clearly the law says unless its lawful or an emergency (even you quote this) you cant unless you have the right permission to do so...

Which law clearly says that?  Where in the body of legislation is there a reference to having the "right permission to do so"?

TheJP said:

a dropped curb would mean permission has been granted by the parish/council to do so..

Firstly, parishes have no role in this.

Secondly, a dropped kerb does not equal "permission".  A vehicular crossover simply means the highway has been constructed or modified to facilitate access to land adjoining the highway whilst protecting highway and utility infrastructure.  The right to cross the footway exists at common law (see above) - it isn't in the gift of the highway authority.  The actions a highway authority and/or local planning authority can take are to apply restrictions on this right.

Care to show the legal links?

I think you are wrong but will happily be proved wrong if you can show clear legal information.