Scotland’s Pavement Parking Prohibitions - Consultation on Pre-Implementation Directions and Regulations for Local Authorities

Ministerial foreword from the Minister for Transport Graeme Dey

The Scottish Government has been working to improve parking legislation in Scotland in order to tackle the impact of inconsiderate and obstructive parking and ensure that our roads and pavements are accessible for all.

As part of this work, The Transport (Scotland) Act 2019 bans pavement parking, double parking and parking at dropped kerbs, and gives local authorities the relevant powers to enforce these new provisions. The Act also gives local authorities the power to exempt footways from the pavement parking prohibition in certain circumstances and in accordance with Ministerial directions.    

To support these provisions we are developing a suite of secondary legislation necessary to bring new legislation into force. These give local authorities the tools they need to be able to tackle the issues of inconsiderate and obstructive parking which, alongside a planned Government lead media campaign, will highlight the problems that inconsiderate parking creates in our everyday lives.

Consultation is a key part of this work, allowing us to ensure that the Regulations that underpin these provisions are developed with consistency, transparency and scrutiny embedded within the process.

We would strongly encourage everyone with an interest in the parking prohibitions to respond to this consultation and provide views on our proposals.

Complete the consultation online

Responding to this consultation

About this consultation

Consultation is an essential part of the policy making process. It gives us the opportunity to seek your opinions. This consultation details issues under consideration and asks you questions about what we are proposing.

Responses will be analysed and used as part of the policy making process, along with a range of other available information and evidence. Responses to this consultation will help to inform the secondary legislation required to bring the parking provisions contained within the Transport (Scotland) Act 2019 into force.

How to respond

To encourage wide participation, the Scottish Government has created a number of ways for you to engage with this consultation. You can respond online, by email or by post.

(Note - The consultation will also be available in alternative formats on request, including Large Print, Braille and Easy Read.)

Online

You can use the response form on the Scottish Government’s consultation hub.

You can save and return to your response at any time while the consultation is open. Please ensure that your response is submitted before the consultation closes at midnight on 11 March 2022.

You will automatically be emailed a copy of your response after you submit it. If you choose this method, you will be directed to complete the Respondent Information Form, which lets us know how you wish your response to be handled and whether you are happy for it to be made public.

Email

Send us your response in an email to: roadpolicy@transport.gov.scot

Please include a completed Respondent Information Form (Annex A).

Post

Send your response to:

Pre-Implementation Directions and Regulations Consultation
Road Policy Team
Transport Scotland
4th Floor Buchanan House
58 Port Dundas Road
Glasgow
G4 0HF

Please include a completed Respondent Information Form (Annex A).

Deadline

The deadline for responses is 11 March 2022.

Need assistance?

If you need support in answering this consultation or have a query about the consultation process you can send your query to: roadpolicy@transport.gov.scot.

or in writing to:

Pre-Implementation Directions and Regulations Consultation
Road Policy Team
Transport Scotland 4th Floor Buchanan House
58 Port Dundas Road
Glasgow
G4 0HF

Next Steps

After the consultation has closed we will analyse all of the responses received and use your feedback to help develop the secondary legislation that will underpin the pavement parking prohibitions. After the consultation period closes we will publish responses at https://consult.gov.scot, where we have been given permission to do so.

The responses to the consultation and analysis will be published in due course.

Setting the scene

Introduction

The Scottish Government recognises the detrimental impact that obstructive and irresponsible parking can have on vulnerable groups, as well as emergency vehicles and other road users in general. In accordance with the powers devolved by section 40 of the Scotland Act 2016, the Scottish Ministers are now able to legislate on parking matters.

Since 2017, the Scottish Government has engaged with numerous stakeholders on the development of parking prohibitions, with the ‘Improving Parking in Scotland’ consultation being published in 2017.

Read feedback obtained from this consultation.

The Transport (Scotland) Act 2019 (‘the Act’) introduces new national provisions, prohibiting pavement parking, double parking and parking at dropped kerbs.

Read the Transport (Scotland) Act 2019.

A suite of secondary legislation is required for the pavement parking prohibition to work in practice and give local authorities the power to implement and enforce the prohibitions.  Prior to the pavement parking provisions coming into force under the Act, local authorities will be required to assess their footways for the purposes of determining which, if any, may be appropriate to be exempt from the pavement parking prohibition. Local authorities will be required to consider their obligations under the Equality Act 2010 throughout this determination process and prior to an Exemption Order being proposed. Ministerial Directions and Pre-Implementation Guidance will be published to assist local authorities in undertaking this determination process.

Purpose of this consultation

This is one of a number of consultations that will be required to address specific areas of the Act in order to obtain vital feedback on how Regulations should be shaped. This consultation focuses on the work that needs to be undertaken in advance of the pavement parking prohibition being brought into force. This consultation will consider matters including the type of streets and pavements that can have an exemption from the national pavement parking prohibition and the procedures that must be followed to allow for such an exemption. 

The purpose of this consultation is to set out the proposed arrangements and options relating to the exemption orders process which will be formalised in Regulations and supplemented through accompanying Guidance.

The consultation paper will also invite views from stakeholders and interested parties on proposals for the procedures that local authorities will be obliged to follow if they wish to exempt an area of the footway from the national pavement parking prohibition. 

In seeking views on the proposal to introduce Ministerial Directions and Local Authority Exemption Order Regulations, the background for each is laid out under separate headings.

The first part of the consultation, under the heading Ministerial Directions, seeks views on the Directions that will be issued to local authorities, directing them to assess any footway that may be considered for an exemption.

The second part of the consultation, under the heading Local Authority Exemption Order Regulations, seeks views on the content and processing model to be contained in the Regulations.

We hope that members of the public respond to this consultation where possible. We appreciate that some of the consultation questions are technical in nature (or apply to duties applicable to local authorities) but their application to potential street exemptions could have a direct impact on numerous individuals. As such, we would encourage everyone to respond to any or all of those areas where you feel you have a contribution to make.

Ministerial Directions

Introduction

The Scottish Government is seeking views on the Ministerial Directions that will be issued to all Scottish local authorities with regards to actions that must be taken in advance of the pavement parking prohibition being enforced. These Directions will enable local authorities to exercise their functions and determine which footways, if any, are appropriate to be exempt from the pavement parking prohibition.

The proposed Directions will set out the mandatory aspects of the parking prohibitions regime that must be carried out by local authorities.

The purpose of the Directions is to specify the assessments that are required to be carried out in connection with making exemption orders, and also the road characteristics that will be required to be identified prior to making an exemption order.

The Directions can be amended at any stage by the Scottish Ministers if required.

Further Directions in regards to the types of uniforms to be worn by parking attendants and information required to be published by local authorities as part of the exemption order process will be set out at a later date.

Road Assessment Considerations

Section 67(1) and (2) of the Act provide that the Scottish Ministers may direct local authorities to undertake specific assessments when exercising their functions in connection with the making of exemption orders:

(1) The Scottish Ministers may direct local authorities in connection with the exercise of their functions under this Part.

(2) A direction under subsection (1) may, in particular—

(a) specify assessments to be carried out in connection with the making of exemption orders…"

The Directions will include the requirement to conduct road assessments with a view to identifying any potential exemptions in line with a set of defined characteristics. Local authorities are not compelled to conduct assessments of all roads but rather of any they are considering for an exemption. 

Road Characteristics

Section 51 of the Act states that a local authority may make an Exemption Order providing that the pavement parking prohibition does not apply to a particular footway within the local authority’s area which is specified in the order. Section 51 will be brought into force through commencement regulations in 2022.   

Section 51(2) states:

(2) A footway may not be specified in an exemption order unless it, or the carriageway with which it is associated, has the characteristics specified by the Scottish Ministers in a direction under section 67(1)."

Directions by the Scottish Ministers will therefore specify the characteristics that a footway, or the carriageway with which it is associated, must have to allow a local authority to decide which footways may be appropriate to exempt from the national pavement parking prohibition.

To be considered for an exemption order, a footway, or the carriageway with which it is associated, must have the following characteristics.

Either:

(a) the footway is of sufficient width to enable 1.5 metres (down to an absolute minimum of 1.2 metres over a short distance to take account of street furniture) to be available for the passage of non-vehicular traffic (including pedestrians, wheelchair users and mobility scooters) when a vehicle is parked on the footway,

or:

(b) the carriageway associated with a footway is of sufficient restricted width or access that it would be rendered unpassable by emergency vehicles when one or more vehicles are parked on the carriageway, but would be possible to access if vehicles were permitted to park on the footway.

Point (a) would allow a local authority to consider an exemption order for an area of the footway where there is deemed to be sufficient space to maintain non-vehicular traffic flow whilst still allowing space for vehicles to park safely on the footway. Point (b) would allow a local authority to exempt an area of footway from the prohibition to allow safe passage of emergency vehicles on a carriageway.

Question 1: Do you agree or disagree with the proposed road characteristics that would allow local authorities to consider an exemption order from the pavement parking prohibition? Please be as specific as possible in your reasoning.

Local Authority Exemption Order Regulations

Introduction

Section 52 of the Transport (Scotland) Act 2019 allows for the Scottish Ministers to make provisions in connection with the making, amendment and revocation of exemption orders. These provisions are to be formally set out in the secondary legislation we are now considering. Section '52 Exemption orders: form and procedure' states:

(1) The Scottish Ministers may by regulations make provision in connection with the making, amendment and revocation of exemption orders.

(2) Regulations under subsection (1) may, in particular, make provision about:

(a) the form of an exemption order (or an order amending or revoking an exemption order),

(b) the procedure to be followed in connection with the making, amendment or revocation of an exemption order,

(c) publication of a proposal for the making, amendment or revocation of an exemption order (a "proposal"),

(d) persons who must be consulted about a proposal and the manner and timing of that consultation,

(e) the process for making objections to a proposal,

(f) the process for considering any such objections, including the holding of inquiries and the appointment of a person to hold an inquiry,

(g) modification of a proposal (whether in consequence of an objection or otherwise),

(h) notice to be given or published of the making, amendment or revocation of an exemption order and the effect of the exemption order (or its amendment or revocation)."

The Regulations referred to in section 52(2) will set out the defined set of procedures a local authority must follow if they wish to exempt a footway from the national pavement parking prohibition.

The pavement parking prohibition is a national ban on pavement parking which has already been legislated for and therefore any exemptions to this prohibition must be carefully developed and considered within that context.

The existing Traffic Regulation Order (TRO) procedures, which determine how local authorities should make, amend or revoke a TRO, are helpful to consider in this context for the purposes of comparison. The TRO procedures may be transferable in the context of Exemption Orders, however there have historically been issues raised by local authorities regarding some aspects of this system, including advertising costs and the two separate consultation periods that are required.

Additionally and for comparison purposes, there has been a general ban on parking on the pavement in London since 1974, consideration of which may be relevant in the context of the Exemption Order process. Exemptions from the pavement parking ban in London do not require the use of TROs, instead a more informal process is followed whereby a resolution of the Council is required, together with a consultation process (generally more informal than that required during the TRO process), in which a series of exemptions in a particular street or streets are proposed and residents’ views sought. The limitation of this approach is that there is no central set of regulations that a London Borough must follow, this can lead to vastly different approaches being taken and a lack of consistency in terms of when pavement parking is permitted and prohibited.

Current Powers

TROs may be made by local authorities in respect of a road for the purposes of avoiding danger to persons or other traffic using the road or for preventing the likelihood of any such danger arising, for facilitating the passage on the road of any class of traffic (including pedestrians), for preventing the use of the road by vehicular traffic of a kind which is unsuitable having regard to the existing character of the road or adjoining property, among other related purposes.

Local authorities have existing powers under parts 1 and 2 of the Road Traffic Regulation Act 1984, which enables them to introduce TROs, the process for which is set out in The Local Authorities’ Traffic Orders (Procedure) (Scotland) Regulations 1999 (‘the 1999 Regulations’). These existing Regulations do not cover exempting areas of the footway from the pavement parking prohibitions and, as such the ways in which such powers may be exercised by local authorities require to be laid out in a new exemption orders process.

For the purposes of comparison, and as the TRO process may be a helpful point of reference when considering how to develop the process for considering and making pavement parking exemption orders, the following bullet points outline the standard process followed by local authorities when making a TRO (this process can take between 12 and 18 months to complete).

The following bullet points represent the steps normally taken by a local authority when introducing a TRO, including requirements stipulated in the 1999 Regulations:

  • Feasibility and priority assessment undertaken by the local authority’s roads department
  • Proposed scheme design considered
  • Preparation undertaken internally by the local authority’s roads department in advance of following the statutory processes set out in the 1999 Regulations
  • Consultation with appropriate statutory consultees, including those listed in regulation 4 of the 1999 Regulations
  • Consideration of all comments received from statutory consultees and, if necessary, amendments made to the proposal
  • Publication of proposals for the purposes of public consultation, in accordance regulation 5 (the objection period, in which any person may object to the marking of the order, is a period of not less than 21 days between the date on which a notice is published under regulation 5 and the date specified in that notice as the date by which any objection must be made)
  • Consideration of any objections made during the objections period, and efforts made by the local authority’s roads department  to resolve these
  • Where an objection made by a person in accordance with regulation 7 is not withdrawn, the local authority will then arrange for a hearing to take place when the provisions of regulation 8 of the 1999 Regulations apply
  • Notice of the hearing is issued by the local authority in accordance with regulation 9
  • Consideration is given by the local authority to all objections made in accordance with regulation 7 that are not withdrawn, or, where a hearing has taken place, the report and recommendation made by the reporter
  • The local authority may make modifications to the order if necessary and where appropriate in accordance with regulation 13
  • Consent may be sought from the Secretary of State, when required and in accordance with regulation 11
  • Making of the TRO by the local authority in accordance with regulations 15 and 16
  • Notice of making the order is given by the local authority in accordance with regulation 17
  • Implementation of the TRO is undertaken by the local authority, making physical changes on site as required

Exemption Order: Proposed provisions under section 52(2)(a) to (h) of the Act

To date the Scottish Ministers have provided a requested £2.4 million in funding to local authorities to support their assessment of streets for the purposes of considering which, if any, they may wish to exempt from the national pavement parking prohibition. 

Once a need has been established the local authority will be required to follow a procedure as laid down in secondary legislation before pavement parking is permitted. Our proposals are set out below and are further detailed under the following headings a-h:

  • Orders drafted by Roads Authority (see section a)
  • Consultation with Statutory Consultees (see section d)
  • Publication of Notice of Order advising of notice of support/objection period (see section c)
  • Consideration of support/objections received (see section e)
  • Organise a hearing/pubish notice of hearing if required (see section f)
  • Consider hearings findings (if applicable) (see section f)
  • Publish notice of making the order (see section h)
  • Signs and lines put in place in the area subject to the Exemption Order
  • Exemption Order operational and pavement parking permitted

(a) Form of an exemption order

For comparison purposes, local authorities can use TROs to apply local restrictions, which are enforceable when the appropriate road signs or markings are displayed. The restrictions contained in such an order can be applied for various reasons and could cover particular hotspots or larger areas. They can have effect at all times or during specific periods, and certain classes of traffic may be exempt from the TRO. The effect of the TRO is dependent on the wording of the TRO being promoted by the local authority.

It is proposed that the Exemption Order should follow a similar format to the way in which TROs are drafted, presented and published. An example of a TRO is shown below and can also be found on the Tell Me Scotland website.

 

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Published Date 17 Dec 2021