Stern v Adelaide City Council No. Scciv-03-124

STERN v ADELAIDE CITY COUNCIL
[2003] SASC 70
Magistrates Appeal

DEBELLE J The appellant was charged with a parking offence alleged to have occurred on 20 April 2001 in Charles Street, Adelaide. It is alleged she stopped on one side of Charles Street where it was marked with a continuous yellow edge line, contrary to Road Rule 169 of the Australian Road Rules (1999): s 174(a)(2) of the Road Traffic Act, 1961.
The Australian Road Rules are made pursuant to s 80 of the Road Traffic Act. Rule 10 creates offences. The penalty for those offences are prescribed by the Road Traffic (Road Rules - Ancillary and Miscellaneous Provisions) Road Regulations, 1999. The penalty for this offence is a fine not exceeding $500: regulation 50(2).
The appellant was convicted after a hearing before a magistrate in the Adelaide Magistrates Court. She was fined $40 and ordered to pay costs, including a counsel fee of $200. The appellant appeals against both the conviction and the order as to costs.
The essential facts were undisputed. Charles Street is a short street in the Central Business District of Adelaide. It runs in a north/south direction. The appellant parked on the eastern side, a short distance from the junction of Charles Street and North Terrace. Charles Street is marked on both its eastern and western sides by a yellow line. The line on the western side is straight. On the eastern side the yellow line is not straight. A short distance from North Terrace the line makes a right angle in an easterly direction for a distance of about two to three metres. The line then makes another right angle and proceeds south for a distance, before making another right angle west to the original alignment. The line is shown in the photographs which were admitted and marked A1 and A2 and A3. The lines are diagrammatically shown in the following sketch.
[ DIAGRAM APPEARS IN ORIGINAL JUDGMENT ]
Thus, there is an indented area on the eastern side of Charles Street. The appellant parked her car in this indented area. The appellant described the indented area as an enclave, a description accepted by the learned magistrate and one which I will adopt.
The main carriageway of Charles Street is formed by a bituminous surface, a surface one usually associates with a street or a road. By far the greater part of the enclave is constructed with pavers. The footpath was also constructed with the same pavers. Indeed, the footpath slopes gradually to the bituminous surface and joins it without any kerb or gutter. The area surfaced with pavers forms a continuous surface with the bituminous paved area.
The enclave is separated by bollards from the footpath and the rest of the paved area. At the time there were no signs in Charles Street saying “No Parking” or “No Standing”. There was nothing to identify the purpose of the yellow line. The appellant received an infringement notice and was invited to pay the expiation fee. She wrote to the Adelaide City Council referring to the absence of “No Parking” or “No Standing” signs and to the fact that there was nothing which indicated the purpose of the yellow line. She asked that the Council excuse the offending and not require payment of the expiation fee. The council refused to do so. Ultimately, it commenced this prosecution.
The appellant tendered other photographs which demonstrate that in a number of adjoining streets the purpose of the line is put beyond doubt because, in addition to the yellow line, “No Parking” signs or “No Standing” signs are erected. The magistrate properly observed that this did not assist the appellant. It might, however, be relevant to the question of penalty.
The magistrate found that the enclave formed part of the road which is known as Charles Street. The appellant raises three issues on this appeal.
In relation to the third issue, she sought to adduce fresh evidence. The appellant does not in any respect satisfy the rules relating to the admission of fresh evidence. Furthermore, she seeks to tender certain documents without any further oral evidence which those documents plainly require. This was a ground which was in no way led before the magistrate. In all the circumstances, it is not appropriate to deal with it and the appellant must therefore be confined to the other two grounds on which she relies.
The first ground is whether the appellant acted in breach of Rule 169. Rule 169 provides:
“A driver must not stop at the side of a road marked with a continuous yellow edge line.”
The rules define the expression “edge line” for a road to mean:
“A line marked along the road at or near the far left or far right side of the road (except any road-related area of the road).”
Rule 12 defines a road to be:
“An area that is open to or used by the public and is developed for, or has one of its main uses, the driving or riding of motor vehicles.”
It does not, however, include the shoulder of a road: see rule 12(2). Thus the edge line must be marked on the side of a road.
The appellant submits that the enclave did not constitute a road. She submitted that the magistrate did not adequately address the meaning of the terms “road” and “road-related area”. She submits that the enclave is not a road but a road-related area, asserting that the enclave was mainly used for parking, as distinct from the driving or riding of motor vehicles. There can be little doubt that vehicles are parked from time to time in the enclave. The records of the council produced in evidence confirm that.
Charles Street itself is, of course, a public road. The question in this case is whether the enclave forms part of that public road. In concluding that the enclave is a road as defined, the magistrate referred to the presumption in s 175(1) of the Road Traffic Act and continued:
“Clearly the defendant drove into Charles Street on the evening in question. She had access to the area as a member of the public. She deliberately parked her car there. In my view, the provisions of road rule 12 exempting the shoulder area do not apply. They do not apply because there is no shoulder there. The area within the yellow lines is clearly designed for access for motor vehicles.
I find that the area where the defendant stopped and parked her vehicle is not exempted by virtue of the definition of ‘shoulder’. Clearly motor vehicles have access to the enclave area as shown in the photographs A1 to A3 inclusive. There is no curve. The area is sealed, although with different materials. I do not think that makes any difference. It does not make it any less a road as defined. The pale area to the west of the eastern-most yellow line (and near the iron post) is, in my view, part of the road. The area to the east is a footpath as defined by the Australian Road Rules. I find that the area where the defendant stopped and parked her vehicle was a road as defined.”
In my view, the learned magistrate is correct. The whole of the area between the yellow lines and including the enclave is open to and used by the public for the driving or riding of motor vehicles. That is one of the main uses. The fact that, as the appellant points out, drivers frequently stop or park in this area does not gainsay the fact that one of its main uses is for the driving or riding of motor vehicles. The appellant cannot rely on the unlawful acts of road users to seek to change the status of this area from a road to something else.
Furthermore, it is apparent from the photographs that the area has been developed for use for the driving or riding of motor vehicles, notwithstanding the change in the surface of that part of the road which forms the enclave. It is apparent that it is part of the road because it is indented and separated from the footpath by a series of bollards.
In my view, the enclave satisfies both limbs of the definition of the term “road”.
I should add that it is clear that motor vehicles use the enclave for passing one another and it is clearly possible to do so. The enclave is not the shoulder of the road, as it clearly is intended to be a surface on which motor vehicles may drive.
Furthermore, the enclave is not a road-related area. Rule 13 defines a road-related area as being any of the following:
“(a)an area that defines a road;
(b)a footpath or nature strip adjacent to a road;
(c)an area that is not a road and that is open to the public and designated for use by a cyclist or animals;
(d)an area that is not a road and that is not open to or used by the public for driving, riding or parking in vehicles.”
Plainly the enclave satisfies neither paras (a) nor (b) in that definition. Paragraphs (c) and (d) in that definition refer to an area that is not a road. Once the enclave is held to be a road, there is no room for the operation of either paras (c) or (d) of this definition. It follows that the enclave is not a road-related area.
The second ground upon which the appellant relies is that the road marking is a traffic control device and, as such, does not comply with Rule 315 and other provisions in Part 20 of the Australian Road Rules.
The expression “traffic control device” is defined to mean:
“A traffic sign, road marking, traffic signals or other device to direct or warn traffic on, entering or leaving a road.”
The expression “road marking” is also defined to mean:
“A word, figure, symbol, mark, line, raised marker or stud or something else, on the surface of a road to direct or warn traffic but does not include a painted island.”
The yellow line is marked on the road. It is doubtful whether it is intended to “direct or warn traffic”. However, I am prepared for the purpose of the appeal to assume that the yellow line is a road marking. There might also be a question whether the road marking constitutes a traffic control device, again for the reason that its purpose might not be to direct or warn traffic on entering or leaving Charles Street. Again, for the purposes of this appeal, I am prepared to assume that it is a traffic control device.
The appellant relies on terms of Rule 315, which defines the legal effect of traffic control devices in these terms:
“A traffic control device of the kind mentioned in the Australian Road Rules has effect for the rules if:
(a)     the device is on the road; and
(b)     the device complies substantially with the Rules.”
The rule does not assist the appellant. The line was marked on a road. In one sense, the appellant’s argument seeks to canvass again the issue whether the enclave is a road. That has already been decided against her. The appellant also relied on Rule 322 and, in particular, sub-rules (1) and (2), which provide:
“(1)A traffic control device or traffic related item above or near a road that is taken to be on the road.
(2)However, the device or item is taken to be on the road only if it is clearly visible to road users to whom it is designed to apply.”
It is necessary to refer also to sub-rule (8) of Rule 322:
“(8)   In this rule:
‘clearly visible’ means:
(a)for a traffic signal – clearly visible during the day and night in normal weather conditions; or
(b)for another traffic control device or a traffic-related item – clearly visible during the day in normal weather conditions.”
The appellant contends that the yellow line was not clearly visible to the road users to whom it is designed to apply.
The magistrate rejected this argument. Referring to sub-rule (8), he said:
“It is clear from the photographs Exhibits A1 to A3 inclusive put in by consent that the continuous yellow line is there. There is no dispute about that. The defendant’s case is that because there were vehicles parked south of where she parked her vehicle, taking up the whole of the remaining enclave area, there is no continuous yellow line clearly visible to her. It must be that part, at least, of the continuous yellow line on the eastern side was visible to her. I refer to that part seen on the photographs where the yellow line turns sharply at right angles and then continues in a southerly direction. That area showing the yellow line must have been available for the defendant to see. She chose to stop and park her vehicle in the remaining space, notwithstanding that fact. There can be no doubt that the continuous yellow line was there for her to see had she chosen to look. I reject her evidence and submissions to the contrary.”
I agree with those reasons. The line is reasonably visible to road users, notwithstanding that other vehicles might be parked in the enclave.
The two grounds which the appellant asserts when appealing against conviction therefore fail and the conviction must stand.
The appellant also appeals against the order as to costs, contending that costs should not have been ordered because she had offered to pay the fine to a charity. The appellant raised the same issue before the magistrate. She opposed any order as to costs on two grounds. The first was that she was willing to pay the expiation fee of $40 to a charity in order to resolve the matter. That was not accepted by the Council. That must be an end of that ground. The second was that the magistrate in exercising his discretion should take into account the fact that the Council has since this offending clearly acknowledged the difficulty facing motorists by putting the matter beyond doubt and painting the words “No Parking” on the roadway in two places. She also referred to statistics which demonstrated that since the Council had placed “No Parking” signs on the roadway the incidents of offending had dropped quite dramatically.
The magistrate took the view that these matters were irrelevant for the purpose of deciding whether the charge was proved or not and correctly did so. He also concluded that when exercising his discretion on the issue of costs they were matters to which he should not have regard.
I do not think there is any ground for interfering with the exercise of the magistrate’s discretion. The appellant does not point to any reviewable error in the exercise of discretion as to costs. For these reasons, the appeal must be dismissed. The conviction and the order as to costs will therefore stand.
I cannot leave this matter without commenting on the undesirability of local authorities and others who are responsible for enforcing road traffic laws of simply painting lines on roads without any further indication of the purpose of those lines. If the purpose is to prevent either standing or parking, then notices to that effect should be painted either on the road surface or signs should be erected on footpaths or other appropriate locations. The ordinary road user is now subject not only to the obligations of the Road Traffic Act but also to the Australian Road Rules, which number 351. I acknowledge that a number of those rules relate to matters of definition and the like. However, the fiction that the ordinary driver should be presumed to know the law assumes an altogether unrealistic aspect when the road users are confronted with such a plethora of obligations. Had the council erected a sign, then there is a possibility this offence might no have occurred or at least if it had, then the appellant would not have been minded to pursue these various arguments in order to seek to set aside any obligation to pay an expiation fee.
The order will therefore be appeal dismissed. The appellant will pay the respondent’s costs fixed at $200.

[2003] SASC 70

5 March 2003