The Loophole They Don’t Want You to Notice
The Transport (Scotland) Act 2019 was meant to end pavement parking once and for all. Ministers promised a watertight ban, a simple law, a clean break. Instead, they produced a piece of legislation so clumsily drafted that it has created a loophole big enough for entire streets to drive through.
The Act bans parking on a pavement if any wheel rests on it. But exemptions may be granted if either condition is met:
Pavement parking still leaves 1.5 metres of unobstructed footway, or
Parking wholly on the carriageway would block the passage of an emergency vehicle.
That is the full statutory test. Nothing more. No Active Travel caveats, no “common sense” checks, no policy add-ons.
In East Dunbartonshire, the council hired consultants Jacobs to survey streets. They went out, looked at how people actually park, and often concluded that in practice the magic 1.5 metres wasn’t being left. To their credit, that has a certain pragmatic logic.
But it is not what the law requires. The Act does not ask whether drivers currently leave 1.5 metres. It asks only whether they could.
This distinction is everything. A street that looks congested in practice may still qualify for exemption in principle. If the geometry allows it, then in law the test is met.
Once a council has granted exemptions to some streets that meet the test, it cannot lawfully refuse others that meet the same test. To do so would be irrational, inconsistent, and unlawful.
The “spirit” of the legislation may have been to crush pavement parking everywhere. But the letter of the law sets a technical threshold. Councils are bound by that threshold, not by their own wishful thinking.
The 1.5 metre clearance was drafted to be the nail in the coffin — the measurement that would stop any street wriggling free. Instead, it has blown the whole policy wide open. A law designed to slam the door shut has, in fact, created a giant loophole.
And the detail makes it worse. The Act defines a pavement as the footway, beginning at the inside edge of the kerb. The kerb itself is not part of the footway. So a car with its tyres perched on the kerbstone, but not projecting onto the footway surface, may technically not be “on the pavement” at all. Combine this with the 1.5 metre rule and the result is legislative farce.
The Scottish Government has a track record of losing when its laws are tested in court.
The Alex Salmond case – their investigation was ruled unlawful, procedurally unfair, and cost over £500,000.
The Gender Recognition Reform challenge – their judicial review of the UK Government’s Section 35 veto was thrown out entirely.
The For Women Scotland case – the Supreme Court unanimously struck down their attempt to redefine “woman” in guidance, ordering costs against them.
And closer to home, Edinburgh Council’s disastrous short-term let licensing scheme was ruled “unlawful, illogical and unfair.”
and on...
In short: the Scottish Government loves to lose in court. Which makes it all the more reckless for councils to gamble on refusing exemptions that clearly meet the statutory test.
Pavement / Footway: the pedestrian surface, starting at the inside edge of the kerb.
Kerb: the dividing structure between carriageway and pavement. Tyres on the kerb but not the footway surface may technically fall outside the ban.
Carriageway: the part of the road used by vehicles.
1.5 metres: the statutory clearance required for an exemption. The law requires only that this clearance could be left — not that drivers already leave it.
This is the loophole. If a street meets the technical test, an exemption is lawful. To refuse one is not only bad faith — it is unlawful.
And here lies the richest irony of all: a law written to punish ordinary residents collapses under its own contradictions.