Friar v Wellington City Council

[2012] NZHC 3362

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-89 [2012] NZHC 3362

MURRAY JOHN FRIAR

Appellant

v

WELLINGTON CITY COUNCIL

Respondent

Hearing:         11 December 2012

Counsel:         Appellant in person

A M White for Respondent

Judgment:      11 December 2012

ORAL JUDGMENT OF MACKENZIE J

[1]      Mr Friar was issued with two infringement notices by the respondent.  The first alleged that he had breached cl 13.1(a) of the Wellington Consolidated Bylaw

2008 by parking in a coupon parking area for a period longer than the two hours while not displaying a clearly validated coupon.   The second infringement notice alleged that he had breached r 6.4(1) of the Land Transport (Road User) Rule 2004 by allowing his vehicle to remain parked in an area contrary to the terms of the traffic sign in excess of the maximum period.

[2]      He gave notice of his intention to defend those infringement notices and both were heard before Justices of the Peace in the District Court on 12 October 2012.

FRIAR V WELLINGTON CITY COUNCIL HC WN CRI-2012-485-89 [11 December 2012]

The Court held both offences proven and imposed penalties.  On the first a fine of

$40 plus Court costs.  On the second an order to pay $21 plus Court costs.

[3]      The facts as briefly stated were that on 18 January this year a parking warden noted Mr Friar’s car parked on Plunket Street in Kelburn.  She marked the tyre to indicate that it was parked there at that time and then returned later when it was still parked  in  the  same  place.     She  marked  the  car  at  10.02am  and  issued  the infringement notice at 12.50pm.  The area is marked by a sign which says that it is a “coupon parking area 8.00am to 6.00pm Monday to Friday.  First two hours free and please display a coupon”.  The coupon required is a resident’s parking coupon.  But the appellant’s coupon had expired on 31 December 2011.

[4]      The second offence was alleged on 28 March 2012 when a parking warden noted the car parked on Upland Road.  That was marked in an area when the car sign marking said P30.  It was noted as being parked there from 3.31pm to 5.53pm and the infringement was issued.

[5]      It is unnecessary for me to describe the decision of the Justices and their reasoning.   I can turn directly to the main, and indeed fundamental, point which Mr Friar has advanced in support of his appeal, which he had also advanced before the Justices.  The essence of that is that as a rate payer for two properties in Plunket Street he pays rates to the Council and that the rate demand which he pays for each of  those  properties  includes  a  roading  levy.    Mr Friar’s  submission  is  that  the payment of the roading levy entitles him to use the roads and that the Council is not empowered to impose the additional restrictions or to impose an additional fee for a resident’s parking coupon.

[6]      The relevant clause in the Bylaw under which the appellant was charged on the first offence reads:

13.1The provisions of Part 1 of this Bylaw notwithstanding, every person commits an offence against this Bylaw who:

a.   Fails to comply in all respects with any prohibition or restriction or direction or requirement indicated by the lines, domes, areas, markings, parking meters, multiple parking meters, traffic signs, or  other  signs  and  notices,  laid  down,  placed,  or  made,  or

erected, in or on any road, building, or other area controlled by the Council, pursuant to any provision of this Bylaw, or of any resolutions made thereunder.

[7]      In  his  written  submissions  Mr Friar  submits  that  the  resident’s  parking coupon  that  was  displayed  should  not  be  regarded  as  expired.    He  refers  to s 22AB(o)(iii) of the Land Transport Act 1998 which provides that a road controlling authority may make belaws:

(o)      prescribing the use of parking places and transport stations, which includes (but is not limited to)—

…

(iii)      if  in  the  relevant  road  controlling  authority's  opinion  it would be reasonable to reserve parking places or transport stations for use by persons who reside in the vicinity,—

(A)      reserving   specified   parking   places   or   transport stations for those persons to use, either generally or at specified times; and

(B)      setting the fees that those persons must pay to the relevant road controlling authority, whether annual or otherwise, for the use of those parking places or transport stations (provided that the fees do not exceed the reasonable cost to the relevant road controlling authority of the service involved in granting a permit to park in any parking place or transport station, collecting fees, or otherwise in relation to the reserving of any parking place or transport station):

[8]      In essence his submission is that as a rate payer on properties in Plunket Street paying rates, which, as I have said, include a roading levy, he submits the roading levy component of his rates exceeds the $115 fee charged by the Wellington City Council for a parking coupon, and that by paying the roading levy his resident’s parking coupon cannot expire.

[9]      This argument must fail.  The process for imposing rates requires the Council to specify the matters in respect of which rates relate.  It may be, although I have not seen a copy of Mr Friar’s rates demand, that the items itemised include a roading levy.   That does not exempt any rate payer from compliance with any other requirements lawfully imposed in relation to the use of the roads or parking on the roads.  Nor does it exempt them from payment of any fee which may lawfully be

imposed.   A charge has been lawfully imposed by the Council for the issuing of resident’s parking coupons.  Non-compliance with parking restrictions which require the possession of a resident’s parking coupon does constitute an offence against the Bylaw.

[10]     The appellant’s ground of objection in this respect cannot avail him with a

defence. The appeal in respect of the first offence must be dismissed.

[11]     As to the second offence, the appellant’s written submissions suggested that the ground of the appeal was that the sign imposing the 30 minute parking restriction did  not  meet  the  requirements  of  the  Land  Transport  (Road  User)  Rule  2004. Rule 6.4(1) provides:

A driver or person in charge of a vehicle must not stop, stand, or park the vehicle on any part of a road contrary to the terms of a notice, traffic sign, or marking that—

(a)       indicates that stopping, standing, or parking vehicles is prohibited, limited, or restricted; and

(b)       is on or adjacent to the road; and

(c)       is  authorised  by  a  road  controlling  authority  under  the  Land

Transport Rule: Traffic Control Devices 2004.

[12]     I  have  carefully  considered  the  evidence  which  was  before  the  Justices including the photograph of the sign, and I am satisfied that this submission cannot succeed.   The Land Transport Rule:   Traffic Control Devices 2004 governs the requirements for signage.  The particular sign had the words “P30” with an arrow indicating the direction in which the restriction operated.  That configuration of the sign  complied  with  the  specifications  for  signage  set  out  in  sch 1  to  the  Land Transport Rule:  Traffic Control Devices 2004.  It meets the requirements of r 6 of the schedule.

[13]     In his oral submissions, Mr Friar relied upon his payment of the roading levy in support of the appeal against conviction on this offence also.  For the reasons I have given in dealing with the first offence, that argument must fail.

[14]     Accordingly, the appeal in respect of both offences is dismissed.

[15]     The respondent seeks costs in accordance with the scale in the Costs  in Criminal Cases Regulations which would amount to $226.  Mr Friar opposes costs and submits that these should be given only against a vexatious litigant.  He submits that he is a defendant who is reluctantly brought before the Court.

[16]     There is no restriction on the award of costs against a defendant and costs may properly be awarded against the defendant.   The issues which the appellant raises have previously been raised by him unsuccessfully in this Court.   In the circumstances I consider that an award of costs is appropriate.  There will be costs in favour of the respondent in the sum of $226.

“A D MacKenzie J”

Solicitors:         DLA Phillips Fox, Wellington for Respondent.

Copy to:           Mr Friar, 6 Plunket Street, Kelburn, Wellington 6012.