NZTA are currently consulting on their Accessible Streets package, which is designed:

to improve safety for footpath users, encourage active modes of transport, and support the creation of more liveable and vibrant towns and cities.

Consultation closes at 5 pm on the 22nd April.

One of the many concerns NZTA is trying to resolve with this package is the growing problem of vehicles being parked on grass berms. The attention to this issue is very welcome, because our street environment presents enough dangers without vehicles moving in and taking up space in the pedestrian realm. The practice is also destructive to utilities and public property, increasing costs to Aucklanders.

However, I have serious concerns with the proposal itself (see Proposal 8).

It would give over the entire country’s set of berms – which are currently pedestrian space – as car parking space by default, to be clawed back piecemeal by the road controlling authorities.

I have taken the time to carefully review the existing rules, and to pay for an analysis by a consultant. It is my view that the existing law is sufficient for road controlling authorities to enforce Road User Rule 6.14 against cars parked on berms in the urban area.

The NZTA team involved in writing the package say they believe there is some legal uncertainty and are consulting to get a view about how to interpret and resolve this issue. Luckily they have been open to hearing my concerns.

If you are submitting on the package, please include some personal views about how vehicles parked or being manoeuvred onto berms are detracting from the goal:

to improve safety for footpath users, encourage active modes of transport, and support the creation of more liveable and vibrant towns and cities.

AT turns a misunderstanding into a national problem

When each of us learned to drive in the city, we were taught to park on the roadway. We practised parking next to the kerb, aiming for a beautifully executed parallel park. This is still the case: penalties are recorded during a driving license test if a driver mounts the kerb. If they do so with two wheels or cause damage, it’s an immediate failure error.

Unfortunately, a small but growing minority of drivers have stopped respecting the kerb as the edge of the realm for pedestrians to walk and children to play. They are parking inconsiderately on footpaths and grass berms. As long ago as 2012, AT were claiming they are “unable” to ticket cars parked on berms unless there are signs posted. The lack of enforcement has gradually become more obvious, encouraging more drivers to adopt the practice, making the network increasingly unpleasant and dangerous for vulnerable road users.

AT rely on an opinion that they will not release, that they say calls into doubt their ability to take action. In the eight years or more they’ve been aware of the issue, AT have chosen not to use some avenues available to them to resolve the problem.

Auckland Council has been frustrated in trying to achieve a solution. Doubt has spread to other centres, and to central government agencies (MOT and NZTA).

NZTA has not sought to review or critique the opinion that stands at the heart of AT’s refusal, nor seek their own opinion.

Unlike Auckland Transport, I am happy to share the basis for my view of the rules.

Will children have a right to play on berms every day, or only at special events? Image Credit: Bike Auckland

It is already prohibited to park on a grass berm

Road User Rule 6.14 prohibits parking on a footpath. (There is no controversy about this). I believe that vehicles are prohibited from parking on the berm , because it is part of the footpath. Here’s my rationale:

The Road User Rule defines footpath:

footpath means a path or way principally designed for, and used by, pedestrians; and includes a footbridge

In urban areas where there are kerbs, the berm is part of the entire footpath space that has been designed principally for, and is used by, pedestrians:

The footpath has a variety of surfaces for pedestrians: paved parts so it doesn’t get muddy, and grassy parts for softness. People will often choose to walk on the grass because it can be kinder on bare feet. It’s kinder on joggers’ joints, too, so some joggers jog along the grass in preference to the pavement.

The footpath – both paved and unpaved – has traditionally been a place for children to congregate in the street for healthy social interaction, and to play, shoot goals, climb trees, and swing on simple swings. As kids, many of us have set up a lemonade, biscuit or grapefruit stall on the footpath, often on the unpaved berm so the paved part is clear for people walking past.

The berm is a handy place for caregivers to stand (or sit) as they supervise children learning to skateboard, scooter or ride a trike or bike on the pavement.

The berm is a pathway for passengers to access vehicles parked on the roadway and for people to cross the street on a desire line.

The berm is useful for groups of people walking past each other on the footpath. The full width of the footpath (pavement plus berm) is often required, (noticeably so with the physical distancing requirements of COVID-19.)

The berm provides safety for pedestrians through visibility. Drivers’ visibility of people on footpaths or crossing the road is reduced by vehicles parked on the berm, whether the drivers are exiting or entering properties, or on the roadway. Pedestrians will often move onto the berm to get a better view of driveways if they suspect a vehicle is about to emerge.

The berm has vegetation and trees intended to provide shade, shelter, cooler temperatures and amenity for people as they enjoy the street, and in a vibrant, cared-for city, residents create personal neighbourhoods by tending unique and diverse plantings on the berms.

The berm is not engineered to take the weight of vehicles. Where vehicles do need to drive over the footpath to access properties, special engineered vehicle crossings of the footpath are provided.

It’s clear that the berm is part of the “path or way principally designed for, and used by, pedestrians”. It certainly wasn’t principally designed for vehicles; it’s not strong enough for their weight, and the kerb is a barrier intended to stop them.

The Local Government Act 1974 includes this definition (s315(1)):

footpath means so much of any road as is laid out or constructed by authority of the council primarily for pedestrians; and includes the edging, kerbing, and channelling thereof

The footpath clearly extends all the way to include the kerb, including the berm.

Documents throughout the transport sector indicate this understanding. For example, NZTA classify the different zones of the footpath in the Pedestrian Planning and Design Guide.

The diagrams show the “street furniture zone of the footpath” includes berms and trees, and the table says it:

Can be used for soft landscaping / vegetation

Section 14.8 also says:

Permanent planting should be sited within the street furniture zone and consist of trees, flowers, shrubs or grass

In summary, grass berms are part of the footpath. Therefore, road controlling authorities can ticket cars parked there using the Road User Rule 6.14.

Where did Auckland Transport go wrong?

Auckland Transport’s reluctance to ticket cars on berms appears to have come from thinking the berm is part of the “road margin” rather than the footpath, and that another rule (Rule 6.2) somehow prevents them from enforcing Rule 6.14.

6.2 Parking vehicles off roadway (1) A driver or person in charge of a vehicle must not stop, stand, or park the vehicle on a roadway if he or she can stop, stand, or park it on the road margin without damaging ornamental grass plots, shrubs, or flower beds laid out or planted on the margin.

Here’s a picture showing an urban-style footpath, complete with kerb and berm, on the left, and a rural-style road margin on the right:

Drivers can be reasonably confident that the road margin on the right has been engineered to take the weight of a vehicle without damaging the ground, but this isn’t always the case. In the following picture, the driver might not be sure how far into the grass it is safe to drive:

The purpose of Road User Rule 6.2 is in rural areas like this, to place the onus on the driver to ensure they park safely off the roadway, but without doing any damage. It is not a clause intended for typical urban situations. Nor is it logical to claim the clause removes AT’s ability to ticket cars parked on berms in urban areas.

This is because RUR 6.2 doesn’t just allow drivers to park off the roadway and on the “road margin” where possible, it requires them to. If Auckland Transport’s advice is that the urban berm is part of the “road margin”, then every car parking on the roadway and not parking on the adjacent berm should be ticketed. For example, AT would need to ticket all the cars parked on the roadway in the following photograph:

Under their interpretation, the careful parallel parking that the majority of drivers continue to practise – on the roadway, next to the kerb and berm – would be prohibited, and should be ticketed.

AT would never do this, suggesting they should not actually believe the advice they have been given.

Our problem is Auckland Transport’s lack of intent, not a lack of enforceable law. Had Auckland Transport been focused on the safety of Auckland pedestrians, they could have clarified this situation many years ago by asking for a declaratory judgement. Alternatively, they could have ticketed the vehicles, and if someone disputed the ticket, the courts could have determined the legality of the enforcement.

Auckland Transport’s lack of action on this issue has contributed to our safety crisis and low physical activity rates.

What’s wrong with NZTA’s proposal?

If proposal 8 of the package goes ahead as planned, the entire country’s set of urban berms – which are currently pedestrian space – will be available as car parking by default. The proposal changes the status quo, from being “you may not park on a berm” to being “you can park on a berm unless the road controlling authority has registered a different rule”.

Leaving registering the berms in the hands of a reluctant enforcement agency would be disastrous.

Image Credit: Jolisa Gracewood

Under the proposal, to try to stop the berm parking in a part of Auckland, we’ll have to

convince AT that there’s an issue in that location,

convince AT to prioritise the issue in their work schedule,

wait while AT’s staff map and maintain the “register” of different areas and streets,

wait while they get it through consultation, which may not be successful – it only takes a small opposition to cause AT’s progressive projects to haemorrhage,

face the media’s articles about “the poor driver couldn’t have known that these streets were different to those around the corner, and so the ticket isn’t fair,” then

watch as AT minimises enforcement to prevent “reputational risk” from these articles, as they are wont to do, and meanwhile

watch as the problem spreads to areas of NZ which don’t currently have a berm parking problem, because the law will slowly change driver behaviour.

If the present rules clearly allowed parking on the berms, then the requirement for registration and consultation might be justified, because it would mean a change to basic driving practices. But this is not the case. Driver expectation has always been that berms protected by kerbs are off limits, and only AT’s poor messaging and response on the issue has led a minority of drivers to ignore their driver training.

When the problem is a suspect legal opinion in the hands of a reluctant enforcement agency, handing over all of the country’s berms to be used as parking lots by default is not the right solution.

There are many diverse uses for our berms which can contribute to a liveable city. Storing vehicles is not one.



The right solution

The whole issue can be resolved in one of two ways. NZTA or the MOT could provide a simple clarification:

The purpose of a kerb is as a physical barrier to wheeled vehicles. Any grass berm between the kerb and the property boundary is part of the footpath. Therefore vehicles on the berm are parked on the footpath, and can be ticketed under Road User Rule 6.14.

This would provide no extra legal weight (and none is required) but it would effectively instruct road controlling authorities to interpret the provisions in this way. They could advise Auckland Transport’s CEO to enforce RUR 6.14, and to override the clearly misguided advice of his legal team. If a driver disputes a ticket, it is an opportunity to allow the courts to decide the matter.

Alternatively, NZTA could use the Accessible Streets package to clarify the definition of footpath, for example:

footpath means a path or way principally designed for, or used by, pedestrians, whether paved or unpaved; and, where the edge of the roadway is defined by a kerb, includes all the land between the kerbline and the adjacent property boundary; and includes a footbridge.

If not storing equipment, berms offer space for activities, creating points of interest – a key element in a vibrant and walkable environment.

For further information see:

the photo narrative I’ve prepared and

the view of the consultant I engaged to examine the situation.

A healthy berm (above)

ruined by parking that AT should have stopped (below, Credit: Eediot, via twitter)

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