CHAPTER ONE – PUBLIC PARKING
Introduction
Different legal regimes may apply to car parking, depending upon whether it takes place on-street or off street. Where the parking is on-street, the rules differ as to whether the road in question is a highway or road (as defined in legislation) or not, and, if a public street, whether or not it is subject to an Order controlling parking.
Where parking takes place in an off-street car park, again, different legal regimes apply depending on whether the car park is provided by a local authority or a private actor.
Parking on Roads and Highways
Classification of Roads:
In England and Wales, a “highway” is defined by section 328 of the Highways Act 1980, which states:
“(1) In this Act, except where the context otherwise requires, “highway” means the whole or a part of a highway other than a ferry or waterway…”
There is a circularity in that definition as it says what a highway includes, rather than what it is. However, the characteristics of what makes a road a highway can be found in case law. These are as follows.
First, highways are not restricted as to the persons who may use them – they must be open to use by the public as a whole. Further, that public use must be as of right. For example, in Kotegaonkar v Secretary of State for the Environment, Food and Rural Affairs [2012] EWHC 1976 (Admin), the court found that a route of paving stones linking a health centre with a parade of shops could not be a highway as it could be reached at each end only through private property, access to which could be given only by permission of the respective owners.
Second, the right is essentially one of passage (Goodtitle, ex dimiss. Chester v Alker and Elmes (1757) 97 ER 231), although it was recognised in D.P.P v Jones [1999] 2 A.C. 240 that members of the public can use a highway for any reasonable purpose so long as their activities are otherwise lawful and do not obstruct the right of passage for other members of the public.
Third, a highway is any way over which there is a public right of way. Thus, it encompasses both public roads and private roads which are subject to a public right of way. In this respect, it is not dissimilar to a servitude right of access. (See Lord Hope of Craighead in DPP v Jones at page 268H)
In Scotland, at common law, the position is substantially similar.
In Waddell v The Earl of Buchan (1868) 6 M 690 at page 699, Lord Curriehill states that:
“A right of Highway confers on the public a right to use the surface for the ordinary purposes of locomotion. It is a kind of right that has existed in this country and elsewhere from the infancy of civilisation… The nature of the right is a right to use the surface for the purpose of locomotion by carriage or on foot, but not to exercise any other rights of property.”
In Ferguson, The Law of Roads, Streets, and Rights of Way, Bridges and Ferries in Scotland (1904) it is said at page 4:
“A highway is a right of passage to all the king’s subjects without distinction”
Rankine, The Law of Land-ownership in Scotland, 4th edn. (1909) states at page 325 that the definition of a highway in English law as “a right of passage in general to all the King’s subjects” applies also to Scotland, and, as in England, a right of highway may be exercised also over a private road. In Wills’ Trustees v. Cairngorm Canoeing and Sailing School Ltd., 1976 S.C. (H.L.) 30, at page 125 Lord Wilberforce said: “A public right of way on highways is established by use over the land of a proprietor . . .” (see also Lord Hope of Craighead in DPP v Jones at page 269F).
This clarity was clouded somewhat by the statutory definition of a Highway in section 1 of the Roads and Bridges (Scotland) Act 1878:
“Highway” shall mean and include all existing turnpike roads, all existing statute labour roads, all roads maintained under the provisions of the Highland Roads and Bridges Act 1862, and all bridges forming part of any highway, and all other roads when declared when declared to be highways under the provisions of this Act, all public streets and roads within any burgh or police burgh not at the commencement of this Act vested in the local authority thereof, but shall not include any street or road so vested, or any street or road or bridge which any person is at the commencement of this Act bound to maintain at his own expense.”
It will be noted that this statutory definition is not restricted to saying what is included in the definition, but also what the definition “shall mean”, and the notable exclusion from the statutory definition is “any street or road or bridge which any person is at the commencement of this Act bound to maintain at his own expense”,
which would exclude private roads from the statutory provisions for the purposes of the 1878 Act.
There were other statutory provisions containing statutory definitions of “roads” referring also to highways. In particular, section 104 (1) of the Road Traffic Regulation Act 1967 contained the definition:
“‘road’ means any highway and any other road to which the public has access…”
The 1967 Act was repealed by the Road Traffic Regulation Act 1984, which carried over the above definition into section 142(1) of that Act.
This was followed shortly afterwards by section 151 of the Roads (Scotland) Act 1984 which contains the following definitions:
“’Road’ means, subject to subsection (3) below, any way (other than a waterway) over which there is a public right of passage (by whatever means and whether subject to a toll or not) and includes the road’s verge, and any bridge (whether permanent or temporary) over which, or tunnel through which, the road passes; and any reference to a road includes a part thereof;
“private road” means any road other than a public road;
“public road” means a road which a roads authority have a duty to maintain;”.
Furthermore paragraph 93(44)(d) of Schedule 10 of the Roads (Scotland) Act 1984, amended the definition in section 142(1) of Road Traffic Regulations Act 1984 (very shortly after its original enactment) to bring it into line with the definition given in the Roads (Scotland) Act 1984. By those means, the word “highway” disappeared from the statutory classification of roads in Scotland.
This is not a mere terminological change, but represents a conscious restatement of the law. This is explained by the Inner House of the Court of Session in Hamilton v Dumfries and Galloway Council (No 2) 2009 SC 277 at paragraph [25]:
“The 1984 Act rationalised Scottish legislation relating to roads, which was previously to be found in a large number of statutes of varying application: some, for example, were of local application, others applied only to the former burghs, and others again applied only to roads in the countryside. It was a codifying rather than consolidating measure: it introduced innovations as well as bringing provisions together in a single statute. In particular, it employed the term ‘road’, as defined in the Act, in place of the various terms (such as ‘highway’, ‘street’, ‘road’ and ‘carriageway’), variously defined, which were employed in earlier legislation.”
If one reads across from the concept of “Highway” to the statutory language of section 151 of the Roads (Scotland) Act 1984, there is a commonality – the existence of a public right of passage – between a highway and a “road” as defined. However, the Scottish classification does not map perfectly on to the English terminology.
This is apparent from paragraph [27] of Hamilton:
It is important to note that the distinction between the expressions ‘public road’ and ‘private road’, as those expressions are used in the 1984 Act, has nothing to do with the existence of a public right of passage: public roads and private roads, as defined, are all alike ways over which there is a public right of passage. The distinction relates solely to the question whether the roads authority have a duty to maintain the road in question. A ‘private road’ within the meaning of the Act is therefore entirely different from what, in ordinary language, would usually be described as a private road: that is to say, a road over which the public have no right of passage. In the language of the Act, such a road is not a ‘private road’: it is not a ‘road’ of any kind.”
The net result is that some roads which are private are “private roads” as defined in section 151 if there is a public right of passage over them, whereas other self-evidently private roads are not roads at all.
This distinction between the Scottish and English categorisations needs is reflected in provisions such as section 34 (1)(a) of the Rpad Traffic Regulations Act 1984:
“(1) Where it appears to a local authority. . .which proposes to provide, or has provided, an off-street parking place under section 32 of this Act –
(a) that it would relieve or prevent congestion of traffic on a highway or, in Scotland, a road if use were made of the parking place to provide a means of access from the highway or road to premises adjoining, or abutting on, the parking place…” [Emphasis supplied].”
Therefore, when looking at issues concerning roads in Scotland, it is important to bear the difference in categorisation in mind. However, when considering the issue of parking, the important question is simply whether there is a public right of passage. If there is, that would lead in England to the road in question being classified as a highway, but in Scotland it would be classified as a road, whether that be either a public road or a private road. If the public right of passage is extinguished by a stopping up order, then something which was previously a road ceases to be so as the (literally) defining right of passage no longer exists (Hamilton, supra).
The question of the public right of passage figured prominently in the case of Hamilton v Nairn 2011 SC 49.
In that case, the respondents concluded missives to purchase a plot of land next to Culter House Road in Aberdeen in order to relocate their cattery and livery stables business and build a new house. They obtained planning permission for this development from Aberdeen City Council, together with the consent of the Council to improve the junction of the driveway of the property with the public road. This proposed improvement involved cutting across the verge of the road.