Boensch v Parramatta City Council
[2012] NSWSC 836
•26 July 2012
Supreme Court
New South Wales
Medium Neutral Citation: Boensch v Parramatta City Council [2012] NSWSC 836 Hearing dates: 2/07/2012 Decision date: 26 July 2012 Before: Fullerton J Decision: The amended summons is dismissed.
Catchwords: ADMINISTRATIVE LAW - review of Council decision - whether Council had power to install parking restriction signs - no stopping sign - permissive parking sign - procedural fairness - regulate traffic - prescribed traffic control device Legislation Cited: Local Government Act 1993
Roads Act 1993
Road Transport (Safety and Traffic Management) Act 1999
Transport Administration Act 1988Cases Cited: Bryden v Minister for Lands [2011] NSWSC 945
Davies v Ku-ring-gai Municipal Council [2003] NSWSC 840; 58 NSWLR 535
Lane Cove Council v Roads and Traffic Authority of New South Wales [2001] NSWSC 30; 50 NSWLR 714Category: Principal judgment Parties: Franz Boensch (Plaintiff)
Parramatta City Council (Defendant)Representation: MJ Heath (Plaintiff)
SJ Free (Defendant)
John Byrnes & Associates (Plaintiff)
Maddocks Lawyers (Defendant)
File Number(s): 2012/108193
Judgment
HER HONOUR: By amended summons dated 26 June 2012 the plaintiff seeks declarations and other relief in respect of the decision by the defendant, Parramatta City Council ("the Council"), to install parking restriction signs (consisting of a number of "No Stopping" signs and time limited permissive parking signs) on Mary's Lane, a cul de sac located at the rear of 251-255 Victoria Road Rydalmere ("the Laneway").
The plaintiff is the registered proprietor of the property at 255 Victoria Road as trustee for a family trust. He is also a principal of two car repair businesses which operate from that address. The workshops associated with these businesses are accessed via a driveway on the northern side of the Laneway. It was common ground between the parties, and recognised by the Council at the time of making the decision the subject of review, that the plaintiff objected to the installation of the parking restriction signs because of what he claimed to be the need to have continued and unrestricted access to and use of the Laneway for business purposes, in particular to provide parking for vehicles that were left for repair, or after repair and prior to collection. Although the plaintiff's need for unrestricted access to and use of the Laneway was regarded by the Council as not without some merit, the Council gave greater weight to countervailing public interest considerations of various kinds, including the entry and egress of emergency vehicles to the Laneway and the competing needs of other businesses and landowners. In the result, and after determining that there were no legal prohibitions on the installation or placement of the parking restriction signs, the Council resolved that the signs should be installed at various specified places on the Laneway.
The grounds for review
The plaintiff relied on two grounds of review in support of his claim for relief:
(i) The only source of power to install the parking restriction signs in the Laneway was Part 8 of the Roads Act 1993 and the Council failed to act in accordance with the requirements of that Part; and
(ii) The Council was obliged to afford the plaintiff procedural fairness before installing the signs, and failed to do so.
In recognition of the fact that the plaintiff was given ample opportunity to make submissions as to why the parking restriction signs should not be installed in the Laneway, and that he took up that opportunity by making extensive and repeated submissions seeking to persuade the Council of the merit of his objections, counsel's argument directed to the second ground of review was limited to a complaint that the plaintiff was not afforded an opportunity to address the Traffic Committee, in person, before it recommended to Council that the parking restriction signs be installed. For reasons which I will set out later in this judgment, that submission was not persuasive.
The submissions of the parties concerning the principal ground of review
In summary, the plaintiff's case was that because the installation of the parking restriction signs "regulated" traffic on the Laneway, as that concept is understood in s 114 of the Roads Act and as it has been interpreted and applied by Austin J in Davies v Ku-ring-gai Municipal Council [2003] NSWSC 840; 58 NSWLR 535, the exclusive source of statutory power entitling the Council to install the parking restriction signs in the Laneway was under Part 8 of the Roads Act.
It was then submitted that because s 114 of the Roads Act (within Part 8) provides that a roads authority (the Council in this instance) shall not regulate traffic on a public road otherwise than in accordance with that Part, and because the Council could not rely upon any of the purposes specified in s 115(2) as an independent source of power to regulate traffic, it required the consent of the Roads and Traffic Authority ("RTA"), as provided for in s 116(1), before the parking restriction signs were installed. It was common ground that the Council did not seek the consent of the RTA, and otherwise failed to comply with the procedure provided for in s 116(2) before the parking restriction signs were installed. The plaintiff submitted that this entitled him to the declaratory relief sought in the summons.
The Council submitted that the plaintiff's assumption that the power to install the parking signs sourced exclusively from Part 8 of the Roads Act and, from that premise, that it was required to comply with s 116 of the Roads Act, was misconceived. It submitted that the installation of the parking restriction signs along the Laneway did not "regulate" traffic within the meaning of the Roads Act, or as that concept has been interpreted and applied in Davies.
The Council relied upon Part 4 Div 1 of the Road Transport (Safety and Traffic Management) Act 1999 ("the Road Transport Act") where the installation of a prescribed traffic control device (as defined) is provided for as one of the functions of the RTA delegated to various entities (including, in this instance, the Council) under s 50 of Transport Administration Act 1988. The Council submitted that the parking restriction signs installed in the Laneway satisfied the definition of a "prescribed traffic control device" under the Road Transport Act and that it did not act contrary to any of the limitations of the delegation when it authorised Council officers to install the signs.
The Council further submitted that even were I persuaded that the installation of the parking restriction signs did operate to regulate traffic in the Laneway, this would not entitle the plaintiff to the relief sought in the summons since, even on this premise, the exercise of Council's powers to install the signs as prescribed traffic control devices was not contrary to Part 8. That conclusion is said to follow from s 115(1) which provides for a specific power in a roads authority to regulate traffic on a public road by means of notices conspicuously displayed on or adjacent to the public road for the purposes specified in s 115(2)(a)-(g). The Council submitted that the parking restriction signs were "notices conspicuously displayed on or adjacent to the public road" and that s 115(2)(g) authorised it to regulate traffic by this means without the need to seek the consent of the RTA under s 116.
The evidence
The parties relied upon a common body of evidence drawn substantially from the affidavit of Richard Searle dated 25 May 2012.
Mr Searle held the position of service manager in the Traffic and Transport Division of the Council and in that capacity was responsible for the administration of the Parramatta Traffic Committee ("the Traffic Committee") which he described as a "technical review committee" which makes recommendations to the Council relating to traffic matters, including the functions of the RTA delegated to the Council pursuant to s 50 of the Transport Administration Act. He emphasised that the Traffic Committee was not a statutory body or a committee within the meaning of the Local Government Act 1993. He understood the role, constitution and function to be subject only to a set of guidelines published by the RTA.
The published guidelines were in evidence before me, relevant parts of which are extracted below:
1. Introduction
...
These guidelines provide the policy and framework for Councils to exercise the traffic functions delegated to them by the RTA. They outline the delegated functions, the limitations that apply to Councils when exercising their delegated functions, the responsibilities of the various partied involved in the process, and the roles of the local and regional traffic committees.
...
These guidelines have been prepared by the RTA:
(i) in accordance with current NSW legislation; and
(ii) in consultation with RTA's Legal Branch, the NSW Police, LGSA, and representatives from a number of metropolitan Councils.
...
4. Exercising delegated functions
Councils may only exercise their delegated functions in accordance with the Delegation. Councils may sub-delegate certain powers to Councillors, the General Manager or an employee of the Council...
The Delegation requires Council to seek the advice of the NSW Police and the RTA prior to exercising their delegated functions. This is usually done via the LTC [Local Traffic Committee].
In cases where the LTC advice is unanimous, and Council intends to follow that advice, Council may authorise the implementation of the facility or device without further notifying the RTA or the NSW Police.
If the elected Council wishes to exercise a delegated function when the LTC advice is not unanimous, or the elected Council wishes to act contrary to unanimous LTC advice, then Council must notify in writing, both the NW Police and the RTA representatives on the LTC.
...
5. Local Traffic Committee
5.1 General
The LTC has no decision-making powers. The LTC is primarily a technical review committee, which is required to advise the Council on matters referred to it by Council. These matters must be related to prescribed traffic control devices and traffic control facilities for which Council has delegated authority.
The LTC should consider the technical merits of the proposal and ensure that the proposal meets current technical guidelines.
...
5.2 Members
The LTC is to be made up of four formal members. The members are as follows:
one representative of Council
one representative of the NSW Police
one representative of the RTA
the local State Member of Parliament (MP) or their nominee.
The Council's representative may be any Councillor or Council officer. The Council representative may be a sub-delegate if Council has formally approved this.
Where the Council LGA is represented by more than one MP, or covered by more than one NSW Police LAC, MPs or NSW Police officers representing the relevant electorate or LAC are entitled to be members of the LTC. However they re only permitted to vote on matters which effect their electorate or LAC...
...
5.3 Meetings
The LTC is not a committee within the meaning of the Local Government Act 1993. The operating arrangements for the LTC are contained in these guidelines.
At LTC meetings the following are at the discretion of Council:
conduct at meeting
frequency of meetings
format of meetings
provision for a public gallery.
...
5.3.4 Public participation
...
However, there is nothing preventing the LTC members from agreeing to allow residents, or other interested stakeholders, to address the committee, if it so chooses. In addition, the LTC members may agree to limit the number of public presenters on any particular item and/or place time limits on them. Any such constraints should be conveyed to the presenters at the time they are notified of the LTC's agreement for them to address the committee.
...
5.3.6 Voting
While an organisation, which is a voting member, may choose to send more than one representative, that organisation is still limited to one vote only.
...
LTC advice to Council on a proposal referred to it by Council must be one of the following:
1)unanimous support;
2)majority support;
3)split vote
4)minority support; or
5)unanimous decline.
...
What follows is a summary of the various annexures to Mr Searle's affidavit detailing the involvement of the plaintiff with the Traffic Committee, and the various recommendations made by the committee to the Council concerning the installation of the parking restriction signs in the Laneway.
The Laneway is a public road within the local government area for which the Council has responsibility. In early 2010 the Council investigated a proposal to impose new parking restrictions in the Laneway. Over the ensuing two years, there was extensive correspondence between the Council and people who stood to be affected by the new parking restrictions, including the plaintiff. The detail of what was proposed by the Council evolved over the next twelve months.
As at March 2010, the Council proposed to install "No Stopping" signs on a section of the northern side of the Laneway. The plaintiff, through his then solicitors, made a series of detailed objections to the proposal. On 8 June 2010 the plaintiff and his legal representatives met with Council representatives to discuss the proposed parking restrictions and the impact that parking restrictions would have on his business.
The Traffic Committee met on 5 August 2010 and considered the proposal to install "No Stopping" signs on the northern side of the Laneway. Each of four members of the Committee referred to in 5.2 of the guidelines were in attendance. The Committee unanimously resolved to recommend to the Council that all proprietors who had access from the Laneway be consulted regarding the proposed installation of the parking restriction signs on both sides of the Laneway and that a report on the matter be brought back to the next Committee meeting. On 23 August 2010 the Council adopted the recommendation of the Traffic Committee.
Letters were sent to the plaintiff and other users of the Laneway regarding the proposal to install the signs on both sides of the Laneway and inviting submissions. The plaintiff's solicitors sent two letters to the Council responding to the proposal and setting out the plaintiff's objections at some length.
The Traffic Committee met on 30 September 2010 and considered the proposal to install the signs on both sides of the Laneway, including by reference to the submissions received in response to the notification of the proposal to the plaintiff and other users of the Laneway. Those in attendance at the meeting unanimously resolved to recommend to the Council that such signs be installed. There was, however, no representative from the RTA in attendance at that meeting. On 18 October 2010 the Council resolved to accept the recommendation of the Traffic Committee.
The Council notified the plaintiff's solicitors and the plaintiff of the resolution. Further correspondence ensued regarding the parking restrictions, which included letters from the plaintiff asking that the Council review its decision to install the parking signs and reiterating his objections.
On 31 January 2011, in response to the plaintiff's objections concerning the 18 October 2010 resolution, a varied proposal was formulated for the consideration of the Traffic Committee, involving a combination of "No Stopping" signs and 15 minute permissive parking signs.
The Traffic Committee met on 31 March 2011 and considered the revised proposal. It resolved unanimously to recommend to Council that signs be installed in the Laneway in accordance with the revised proposal. There was, however, no representative of the police in attendance at that meeting and no apology noted.
On 27 April 2011 the Council resolved to accept the recommendation of the Traffic Committee. The Council notified the plaintiff and others of the resolution and provided a plan of the signs which the Council had resolved to install. Further correspondence ensued between the plaintiff and his solicitors regarding the resolution.
On 15 June 2011 the Council's depot officers were provided with a written authorisation to install the signs in accordance with the Council's April resolution. Council staff installed most of the signs, but were unable to install one of the signs because of an obstruction on the curb of the Laneway. In order to overcome the problem, a recommendation was made to the Traffic Committee that the approved location for that particular sign be relocated 3 metres to the west.
On 9 February 2012 the Traffic Committee resolved unanimously to recommend to the Council that the sign be relocated as per the recommendation.
On 27 February 2012 the Council resolved to accept the recommendation of the Traffic Committee regarding the relocation of the sign.
On 20 March 2012 the Council's depot officers were provided with a written authorisation to install the relocated sign in accordance with the Council resolution. The relocated sign was installed on 4 April 2012.
What is the statutory source of power authorising the Council to install the parking restriction signs?
As noted at [7] and [8], the Council's primary submission was that the power to install the parking restriction signs on the Laneway did not source from Part 8 of the Roads Act, which deals with the regulation of traffic by roads authorities, but from Part 4 Div 1 of the Road Transport Act which deals with the installation, display or removal of "prescribed traffic control devices" which are defined in s 50 of the Road Transport Act as:
...a sign, signal, marking, structure or other device to direct or warn traffic on a road or road related area (or part of a road or road related area) ...
All of the functions under Part 4 of Div 1 of the Road Transport Act were delegated to the Council under s 50 of the Transport Administration Act.
The plaintiff's primary submission was that the power to install the signs did source from Part 8 of the Roads Act because the parking restriction signs operated to regulate traffic on the Laneway. He submitted that, on its proper construction, all that is delegated to the Council under Part 4 of the Road Transport Act is an installation function and that because the signs it installed in fact operated to regulate traffic on the Laneway the exercise of that power was still conditioned by the procedural requirements of s 116(2) of the Roads Act.
On this analysis, the question whether the parking restriction signs operated to "regulate" traffic on the Laneway (as that concept is understood for the purpose of the Roads Act) arises irrespective of whether or not the plaintiff's primary submission that the Roads Act is the sole source of legislative power is correct.
It is necessary to refer to the different but allied legislative schemes under both Part 4 Div 1 of the Road Transport Act and Part 8 of the Roads Act in order to clear the way for the determination of that question.
Part 4 Div 1 of the Road Transport Act
Part 4 Div 1 of the Road Transport Act, as in force at the relevant time, provided in s 51 that a person had appropriate authority to install a "prescribed traffic control device" if the person was authorised in writing by the Authority (defined in the Dictionary to the Act to mean the RTA) to install the device.
Clause 131 of the Road Transport (Safety and Traffic Management) Regulation 1999 relevantly provides that a prescribed traffic control device includes:
...any traffic control device of a kind mentioned in the Road Rules 2008 that has effect for the Rules under rule 315 of the Rules.
Relevantly, "No Stopping" signs (Rule 167) and permissive parking signs (Rule 204) are devices that are mentioned in the Road Rules 2008. Rule 11(2)) and Rule 315 provide that a traffic control device has effect for the purposes of the Road Rules if the device is on a road and if the device complies substantially with the Rules.
It is clear (and the plaintiff did not submit otherwise) that the parking restriction signs installed in the Laneway are "prescribed traffic control devices" within the meaning of s 50 of the Road Transport Act and that the signs comply with the Road Rules.
Section 52 of the Road Transport Act provides:
52 Unauthorised prescribed traffic control devices
(1) A person must not, without appropriate authority:
(a) install or display a prescribed traffic control device on, above or near a road or road related area, or
(b) interfere with, alter or remove any prescribed traffic control device installed or displayed on, above or near a road or road related area.
Maximum penalty: 20 penalty units.
(2) A person must not install or display on, above or near a road or road related area any sign, signal, marking, structure or other device that might reasonably be mistaken to be a prescribed traffic control device.
Maximum penalty: 20 penalty units.
Council relied upon s 51(b) of the Road Transport Act as the source of its power to install the parking restriction signs. That section provides:
For the purposes of this Division, a person has appropriate authority to install or display (or to interfere with, alter or remove) a prescribed traffic control device if:
(a) ...
(b) the person is otherwise authorised in writing by the Authority to install or display (or to interfere with, alter or remove) the device.
The written authorisation relied upon by the Council was the Delegation under s 50 of the Transport Administration Act on 23 February 2009.
Schedules 1 and 3 to the Delegation, when read together, delegated to the Council the authority to exercise all of the functions of the RTA under Division 1 of Part 4 of the Road Transport Act, including, relevantly, the authority to install the parking restriction signs under s 51. (I note that s 51 also includes the authority to "display" the parking restriction signs although the power is cast disjunctively and not conjunctively with the authority to install. No submissions were directed to this issue and whether it informs the resolution of the issues in this case.)
Since s 51(b) has the effect that a person has authority to install a prescribed traffic control device if the person is authorised in writing by the RTA to install the device, the Council submitted that it necessarily follows that one of the functions conferred on the Council by the Delegation was the provision of such written authorisation to its officers to install the signs. The Council submitted that Clause 11 of the Schedule to the Delegation provides further support for that construction. That Clause provides as follows:
Before installing or displaying a prescribed traffic control device, a council and its sub-delegate must authorise installation or display (or interference with, alteration or removal) of the device in writing in accordance with section 51 of the Road Transport (Safety and Traffic Management) Act 1999.
The Council's ultimate submission was that since the Council officers who installed the parking signs were in receipt of written authorisation from the Council pursuant to the Delegation (and as required under s 51(b) of the Road Transport Act), it follows that the plaintiff's claim that the signs were installed without appropriate legislative power must fail.
A secondary submission advanced by the Council concerned the operation of s 115(2)(g) of the Roads Act. As noted at [9] above, s 115(1) provides for a general power in the RTA to regulate traffic on a public road by means of notices conspicuously displayed on or adjacent to the public road, while s 115(2) operates to limit that power to one of the purposes specified in s 115(2)(a)-(g) where a roads authority other than the RTA is involved in the regulation of traffic by these means. The Council submitted that the parking restriction signs were notices conspicuously displayed on the Laneway, thereby satisfying s 115(1), and that s 115(2)(g) authorised it to regulate traffic by these notices because it was for a "purpose for which the roads authority is authorised or required by law under this or any other Act or law to regulate traffic", in this case the installation of prescribed traffic devices (the parking restriction signs) under Part 4 of the Road Transport Act. The Council submitted that even if the installation of the parking signs under Part 4 of the Road Transport Act "regulated" traffic on the Laneway as the plaintiff contended, the legal authority conferred under s 115(2)(g) of the Roads Act relieved it of having to comply with the procedural obligations under s 116 before the signs were erected because s 116 only applies where the action taken to regulate traffic is for a purpose not contemplated under s 115.
The plaintiff submitted that the functions of the RTA delegated to the Council under Schedule 3 of the Delegation simply put it in a position to authorise the installation of the parking restriction signs (as a delegate of the RTA) as distinct from it being a source of power to install the signs. The plaintiff submitted that the general power to regulate traffic is provided for exclusively in Part 8 of the Roads Act and that the Council remained subject to the obligation to comply with the procedural steps in s 116 of the Roads Act because the signs (the Council was authorised to install) nevertheless operated to regulate traffic under s 114. The Council emphasised that there was nothing in the Road Transport Act which displaced the need for the Council, as a roads authority under Part 8 of the Roads Act, to comply strictly with the procedural steps in s 116 of the Roads Act when exercising the power to regulate traffic.
The plaintiff further submitted that the Council cannot invoke s 115(2)(g) as a source of power to regulate traffic in the Laneway as that section is confined to regulating traffic by means of "barriers or notices" and the parking restriction signs are neither. Although it was conceded that the signs are "prescribed traffic control devices" within the meaning of s 50 of the Road Transport Act, being "traffic signs...to direct or warn traffic on, entering or leaving a road", they cannot at the same time, so it was submitted, be notices for the purposes of regulating traffic under s 115 of the Roads Act.
There is some force in that submission. Although "notices" are not defined in the Roads Act, when "notices" is read in conjunction with "barriers" (both to be "conspicuously displayed on or adjacent to the public road") as the particular means by which traffic might be regulated by a roads authority under s 115(1), and when each of the specified purposes under s 115(2) (a)-(f) are separately considered, and it is clear that they are each directed to be used for a temporary purpose as distinct from addressing a permanent set of circumstances or state of affairs only (g) is cast in general terms, namely:
for a purpose for which the roads authority is authorised or required, by or under this or any other Act or law, to regulate traffic.
If a "notice" conspicuously displayed as provided for in s 115(1) includes a parking restriction sign, as Austin J observed in Davies at [27], if the roads authority (in this case the Council) is to rely upon subparagraph (g) so as to obviate the need to comply with the procedural requirements in s 116, it must be able to point to the exercise of some legal authority to "regulate" traffic other than that in s 115 itself. This necessarily reverts to a consideration of the Council's reliance on Part 4 Div 1 of the Road Transport Act as a source of power to regulate traffic in the Laneway. It also involves a consideration of the plaintiff's submission that there is a distinction between the "function" of installing the subject parking restriction signs as prescribed traffic control devices and the "power" to install them if they are to "regulate" traffic under the Road Transport Act. So far as concerns that submission, I am satisfied that in the circumstances of this case the distinction is an arid one. If the Council had delegated to it the function of authorising the installation of the parking restriction signs such that when installed under Council's authority the installation was lawful (that is, not in breach of s 52) the signs must also be taken to be effective for their designated purpose of directing traffic on a road not to stop and directing that parking is permitted for a restricted time only.
In my view, while the Council's reliance on s 115(2)(g) is perhaps tenuous, it is not for that reason untenable.
The plaintiff submitted that if s 115(2)(g) was to be relied upon as a source of power to regulate traffic in the Laneway through the Council's delegated function to authorise the installation of the signs as prescribed traffic control devices (which was not conceded) the exercise of the power was conditioned by the requirement that he was entitled to be afforded procedural fairness and that he was not afforded his full rights in that regard because he was not invited to address the Traffic Committee as expressly contemplated in 5.3.4 of the Guidelines (extracted in [12] above) - (see Bryden v Minister for Lands [2011] NSWSC 945 at [28] per Pembroke J).
Although the Guidelines contemplate that an interested stakeholder may address a committee meeting, it is abundantly clear that is entirely at the discretion of the committee since the primary responsibility of determining the merits of any proposal from the perspective of the public falls to the Council and, accordingly, that views of residents should be taken into account by the Council rather than at the committee stage.
The plaintiff's counsel submitted that his client should have been invited to address the Traffic Committee. He also made clear in oral submissions that this was the high water mark of that aspect of the claim for relief that the plaintiff was denied procedural fairness. The expressly limited form of this submission was a frank acknowledgement of the fact that the plaintiff had been afforded and exercised the opportunity to seek to persuade the Council of the need for him to have continued and unregulated access to the Laneway as reflected in the course of correspondence tendered in evidence. I am not persuaded that the plaintiff has been denied procedural fairness and his claim for relief on that basis must fail.
Assuming I am in error and the Council cannot invoke s 115(2)(g) of the Roads Act, the remaining question is whether the Council's reliance on Part 4 of the Road Transport Act as the source of power to install the parking restriction signs obviated the need for it to comply with the procedural steps in Part 8 of the Roads Act. Before considering that question, I pause to consider whether Clause 7 of Schedule 4 of the Delegation operated as a limit to the exercise of the delegated functions of the RTA as contended for by the plaintiff. Clause 7 of the schedule provides:
A council or its sub-delegate must not exercise a function until they have notified the Commissioner of Police and the Authority of any decision taken to exercise a function except where:
(1) the advice of the Local Traffic Committee is unanimous; and
(2) the council or its sub-delegate propose to follow such advice.
The plaintiff submitted that the meeting of the Traffic Committee on 31 March 2011 was the critical meeting since it was at that meeting that the proposal for the installation of the signs was finally dealt with. The Council acknowledged, and it is clear from the minutes, that the representative from the New South Wales Police was not in attendance at that meeting (and there was no apology). The plaintiff submitted that where the advice from the Committee upon which Council ultimately relied in authorising the erection of the parking restriction signs was not unanimous, and where neither the Commissioner of Police nor the RTA were consulted, the Delegation was ineffective and for this reason the signs were installed in the absence of statutory power.
This issue was the subject of correspondence between the parties in October 2011. In a letter dated 4 October 2011 the Council conceded that no representative of the New South Wales Police was in attendance at the meeting on 31 March. It maintained, however, that the views of the Commissioner were sought and obtained after the meeting, and before the matter was considered by the Council, and that this was reflected in the endorsement of the minutes of the meeting signed under the hand of the officer representing the police on 15 April 2011. The plaintiff submitted that even if the minutes were endorsed by him as accurate (although query the validity of the endorsement given his absence at the meeting), his vote is not cast simply by adopting minutes after they have been circulated. Despite there being provision on another pro forma document for a voting member who was not in attendance at a meeting of the Traffic Committee to agree with the recommendations in the circulated minutes, no document in that form was tendered in connection with the meeting of 31 March 2011.
The document dated 15 April 2011 that was tendered, however, made provision only for the member's agreement that the attached minutes of the meeting of 31 March 2011 were or were not an accurate record of the meeting. That document was sent under cover of a letter of 12 April 2011 which advised that the Council would be considering the minutes; that the member would be notified of any alteration to the recommendations that the Council might make; and that the member's agreement with the minutes is requested in accordance with the provisions of the RTA "Delegation to Councils for the Regulation of Traffic including the operation of Traffic Committees". Clause 7 does not require that the Committee (in this case) "vote" unanimously in support of a decision. What is required is that the "advice" is unanimous. While that advice may take the form of a vote, it need not. It cannot be doubted that the issue of whether the Committee would recommend that the parking restriction signs be installed in the Laneway had by that date been ventilated and at very considerable length or that the representative of the police had been in attendance at the successive meeting where it had been discussed and recommendations made.
I am satisfied that his endorsement of the minutes reflects his agreement with the Committee's proposals in full acknowledgement that they would be considered by the Council with a view to signs being installed with their authority.
I turn now to consider the remaining issue identified in [50]. For the purposes of the Roads Act "regulate traffic" is defined in the Dictionary to mean, "... restrict or prohibit the passage along a road of persons, vehicle or animals". In Davies Austin J found that a power to restrict or prohibit the passage along a public road of persons, vehicles or animals is a power to prescribe the time, place, manner and circumstances in which traffic of that kind may pass along the road. In that case his Honour found that the Council's action of installing a roundabout affected the manner and circumstance of the passage of vehicles along a nominated road and that s 114 of the Roads Act prohibited that activity otherwise than by the Council's strict adherence to the procedural requirements in s 116. In Lane Cove Council v Roads and Traffic Authority of New South Wales [2001] NSWSC 30; 50 NSWLR 714 at 725 a "Give Way" sign was found to regulate traffic by requiring traffic in one direction to yield to traffic in the other direction and in this way, and consistent with the decision in Davies, the manner and circumstances in which traffic passed along a roadway was regulated for the purposes of the Roads Act.
The Council submitted that the installation of "No Stopping" and "15 minute parking" signs along the Laneway does not constitute "regulating traffic" as defined or interpreted in either of the authorities to which reference has been made because the signs do not restrict or prohibit the passage of vehicles along the Laneway. It submitted that to "pass along" the Laneway necessarily comprehends the movement of vehicles from one point to another along that stretch of road and that regulating passage along the Laneway necessarily comprehends something which restricts the manner in which the traffic passes from one point to another along that distance. A sign that prevents a vehicle from stopping at or on a section of road, or stopping but only staying for a restricted time does not, so it was submitted, restrict passage in any relevant sense.
The plaintiff submitted that a "No Stopping" sign, by definition, regulates traffic because it prohibits what a driver might do in his or her intended passage along the Laneway - namely not to stop on that part of the Laneway governed by the sign. Clause 167 of the Road Rules, and the "No Stopping" sign to which it refers, provides that "a driver must not stop on a length of road or in an area to which no stopping sign applies" with a penalty provided for in the event that prohibition is breached. The permissive parking sign, while in a slightly different category, was also said by the plaintiff to operate to regulate traffic along the Laneway because it had the effect of restricting the passage of vehicles by restricting the act of the driver stopping or allowing his or her vehicle to be stationary on the length of the road continuously, or alternatively prohibiting the act of a driver stopping or allowing his or her vehicle to be stationary on the length of the road for longer than the designated period.
While the matter is not entirely free of doubt I am not persuaded that a prohibition on a vehicle stopping in the Laneway or a time limit on it stopping and remaining, restricts or prohibits the passage along the Laneway in the relevant sense.
Orders
The amended summons is dismissed.
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Decision last updated: 10 August 2012
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