Dropped curbs

Section62

TheJP said:

Care to show the legal links?

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

Already done, although each time you've just replied with new points which are either not relevant to the situation, or just wrong.

The only thing I've not gone into detail on is the common law right - but a few seconds with google will get you information from a reputable source confirming this right exists.

I'm not here to convince you.  But I will point out where inaccurate or misleading information is being posted.

Otherwise, just go back to Rule 145 of the Highway Code and note the words "except to gain lawful access to property".  It means exactly what it says.  If the common law right is extant, gaining access will be lawful.

GDB2222

From the OP's point of view, really what matters is whether he should buy the house or not, and whether he should reduce his offer. He’s been sold a property with off street parking, and there are clearly issues with that. It depends where the nearest on street parking is.

Section62

GDB2222 said:

From the OP's point of view, really what matters is whether he should buy the house or not, and whether he should reduce his offer. He’s been sold a property with off street parking, and there are clearly issues with that. It depends where the nearest on street parking is.

Agreed.  And that goes to the point I was making - the OP needs to know whether they can carry on using the off-street parking (until the council tries to stop them), or if they would be committing an offence by doing so from day 1.  That difference depends on whether or not one of the various prohibition notices has been served.

Having an indemnity policy for the off-street parking wouldn't be much use if every time the OP drives across the footway they would be committing an offence, it is also unlikely the council would allow that to continue for very long if the enforcement process has already started.

If using the off-street parking doesn't involve committing an offence, the OP may think it worth taking a chance in buying the property with the risk the council might take enforcement action at some point in the future.

TheJP

Section62 said:

TheJP said:

Care to show the legal links?

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

Otherwise, just go back to Rule 145 of the Highway Code and note the words "except to gain lawful access to property".  It means exactly what it says.  If the common law right is extant, gaining access will be lawful.

So what is the lawful access here? The same rule also says mechanical vehicles cannot drive over the footway. Surely the council who can enforce rule 145 need to grant permission which would then be classed as lawful access.

TheJP

GDB2222 said:

From the OP's point of view, really what matters is whether he should buy the house or not, and whether he should reduce his offer. He’s been sold a property with off street parking, and there are clearly issues with that. It depends where the nearest on street parking is.

The OP hasn't stated that the house is being sold as off street parking merely that the sellers park in front of the house without a dropped curb. Apparently no laws are being broken if you drive over the footway so it shouldn't affect the value.

Section62

TheJP said:

So what is the lawful access here? The same rule also says mechanical vehicles cannot drive over the footway. Surely the council who can enforce rule 145 need to grant permission which would then be classed as lawful access.

Nobody enforces the Highway Code.  The Highway Code is not law.  Instead Rule 145 is a brief summary of what the law says.

The possibly relevant offence here is under Section 72 of the Highway Act 1835.  This is a moving traffic offence which is not yet decriminalised and would be enforced by the police, not by the council.

Nobody "grant[s] permission" under Section 72.  As I've said (a few times) there is no need for permission to be "granted" because at common law the right to access property adjoining a highway maintained at public expense already exists.  The powers of either the highway or local planning authority are to restrict that right, not to grant permission to exercise it.

The "lawful access" is the common law right to access property adjoining a highway maintained at public expense, unless a prohibition is in place via either a highway notice or a planning enforcement notice.  Such notice would make (use of) the access unlawful.

Unless a notice has been issued to that property, the OP would not be committing an offence any more than they would be if a 'dropped kerb' had been installed, since in highway law there is no distinction between a footway/verge and a vehicular crossover constructed over a footway/verge.  The vehicular crossover forms part of the footway/verge, not part of the carriageway.

GDB2222

TheJP said:

GDB2222 said:

From the OP's point of view, really what matters is whether he should buy the house or not, and whether he should reduce his offer. He’s been sold a property with off street parking, and there are clearly issues with that. It depends where the nearest on street parking is.

The OP hasn't stated that the house is being sold as off street parking merely that the sellers park in front of the house without a dropped curb. Apparently no laws are being broken if you drive over the footway so it shouldn't affect the value.

If enforcement action can be taken to stop the use of the parking space, that would certainly affect what I would pay!  It might only take a single serious accident for the local authority to erect a line of bollards blocking access. 

Section62

GDB2222 said:

TheJP said:

GDB2222 said:

From the OP's point of view, really what matters is whether he should buy the house or not, and whether he should reduce his offer. He’s been sold a property with off street parking, and there are clearly issues with that. It depends where the nearest on street parking is.

The OP hasn't stated that the house is being sold as off street parking merely that the sellers park in front of the house without a dropped curb. Apparently no laws are being broken if you drive over the footway so it shouldn't affect the value.

If enforcement action can be taken to stop the use of the parking space, that would certainly affect what I would pay!  It might only take a single serious accident for the local authority to erect a line of bollards blocking access. 

At the risk of the 'p' word being used again, the point I've been making is relevant to this.  The enforcement action the council can take* is limited to either requiring a crossover to be constructed (via the 184(1)(a) notice), or to impose reasonable restrictions "on the use of the footway or verge as a crossing" (via the 184(1)(b) notice).

Errecting a line of bollards to block the access - especially because of one accident - would probably be ultra vires*.

(*The exception to this is in the areas where additional legal powers have been obtained by the authority - for example S16 of the London Local Authorities and Transport for London Act 2003.)

https://www.legislation.gov.uk/ukla/2003/3/section/16/enacted

There is a legally grey area with highway authority powers that they could for example decide that pedestrian guardrailing was needed (i.e. at a pedestrian crossing) in which case they could install this for genuine road safety reasons even if it blocks an access - but the reasons would have to be purely road safety-driven (and relevant to the measure installed), not done with the intent of blocking the access.  If they want to block an access they should do so using the correct powers.  Most councils going round installing bollards to block accesses are on legally thin ice... eventually someone is going to apply for and win a judicial review.

TL;DR - an indemnity policy might be useful if it covered a judicial review of a council's decision to erect a line of bollards, or whether the conditions in a 184(1)(b) notice were "reasonable".

TheJP

GDB2222 said:

TheJP said:

GDB2222 said:

From the OP's point of view, really what matters is whether he should buy the house or not, and whether he should reduce his offer. He’s been sold a property with off street parking, and there are clearly issues with that. It depends where the nearest on street parking is.

The OP hasn't stated that the house is being sold as off street parking merely that the sellers park in front of the house without a dropped curb. Apparently no laws are being broken if you drive over the footway so it shouldn't affect the value.

If enforcement action can be taken to stop the use of the parking space, that would certainly affect what I would pay!  It might only take a single serious accident for the local authority to erect a line of bollards blocking access. 

If the house was advertised/sold as off street parking. This isn't clear here. Clearly double yellow lines as the OP has stated right outside the property means they can park on the highway, this wouldn't affect the price as it would have been factored into the guide/offer.

TheJP

Section62 said:

GDB2222 said:

TheJP said:

GDB2222 said:

From the OP's point of view, really what matters is whether he should buy the house or not, and whether he should reduce his offer. He’s been sold a property with off street parking, and there are clearly issues with that. It depends where the nearest on street parking is.

The OP hasn't stated that the house is being sold as off street parking merely that the sellers park in front of the house without a dropped curb. Apparently no laws are being broken if you drive over the footway so it shouldn't affect the value.

If enforcement action can be taken to stop the use of the parking space, that would certainly affect what I would pay!  It might only take a single serious accident for the local authority to erect a line of bollards blocking access. 

At the risk of the 'p' word being used again, the point I've been making is relevant to this.  The enforcement action the council can take* is limited to either requiring a crossover to be constructed (via the 184(1)(a) notice), or to impose reasonable restrictions "on the use of the footway or verge as a crossing" (via the 184(1)(b) notice).

Errecting a line of bollards to block the access - especially because of one accident - would probably be ultra vires*.

(*The exception to this is in the areas where additional legal powers have been obtained by the authority - for example S16 of the London Local Authorities and Transport for London Act 2003.)

https://www.legislation.gov.uk/ukla/2003/3/section/16/enacted

There is a legally grey area with highway authority powers that they could for example decide that pedestrian guardrailing was needed (i.e. at a pedestrian crossing) in which case they could install this for genuine road safety reasons even if it blocks an access - but the reasons would have to be purely road safety-driven (and relevant to the measure installed), not done with the intent of blocking the access.  If they want to block an access they should do so using the correct powers.  Most councils going round installing bollards to block accesses are on legally thin ice... eventually someone is going to apply for and win a judicial review.

TL;DR - an indemnity policy might be useful if it covered a judicial review of a council's decision to erect a line of bollards, or whether the conditions in a 184(1)(b) notice were "reasonable".

If the OP was to habitually cross over the footway they would then commit an offence, by putting pedestrians at risk and or damaging the footway.

To end this exercise, OP unless you have a dropped curb or permission from the council i would see this as NOT having off street parking. Ask the seller if they have tried to get a dropped curb and also check if the price reflects similar properties with no off street parking.