Friar v Wellington City Council HC Wellington CRI 2010-485-84 - [2010] NZHC 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-485-84
CRI 2010-485-85
CRI 2010-485-86
CRI 2010-485-87

CRI 2010-485-88

MURRAY JOHN FRIAR
Appellant

v

WELLINGTON CITY COUNCIL
Respondent

Hearing: 2 November 2010

Counsel: Appellant in Person
A M White for Respondent

Judgment: 2 November 2010

JUDGMENT OF RONALD YOUNG J (Appeal against conviction)

[1] On four occasions the respondent said that Mr Friar parked his vehicle in a coupon parking area for longer than the free period without a valid parking coupon. He was convicted by Justices of the Peace of each of these offences. On two occasions the respondent said the appellant parked in excess of 30 minutes in a
30 minute maximum parking area and on three occasions in excess of 120 minutes in a 120 minute maximum parking area. He was convicted by the Justices of the Peace
of these five offences as well. Mr Friar now appeals against his convictions.

MURRAY JOHN FRIAR V WELLINGTON CITY COUNCIL HC WN CRI 2010-485-84 2 November 2010

[2] Mr Friar’s notice of appeal raises two issues, one in relation to each set of convictions. No other grounds of appeal were filed or identified by Mr Friar either in writing or in his appearance before me.

[3] As to the coupon parking offences the evidence clearly established that Mr Friar did park his vehicle on 21 September, 5 November 2009 and 22 February and 24 February 2010 on a coupon parking area for longer than the two hours permitted without a coupon.

[4] As to the coupon parking offences the appellant in his notice of general appeal said:

The JP Court took no notice of the discrepancies between the Wellington Consolidated Bylaw and the empowering legislation being consolidated. The empowering legislation was focussed on traffic management and traffic safety not using the marketing of spaces as a revenue gathering opportunity.

[5] It is difficult to understand whether this is intended to be an attack on the vires of the parking regulations. If it is it fails. Section 72 of the Transport Act 1962 authorises by-laws as to the use of roads. This includes the parking of vehicles (see ss 1(k)).

[6] Further, the argument that Council by-laws regulating parking are ulta vires because they are for the purpose of revenue gathering was, in my view, correctly rejected by McGechan J in Kelly v Wellington City Council[1] when he said:
[1] Kelly v Wellington City Council [1995] 3 NZLR 75.

Appellant submits Transport Act 1962, s 72(1)(k) empowers by-laws “prohibiting or restricting” parking. The coupon scheme, it is said, does not so “prohibit” or “restrict” parking. It is more a permissive concept. It is designed for revenue gathering going beyond the scope of the Act. The local Government contains no power for such a by-law ...

I agree with the view that, on the plain meaning, coupon parking “restricts” parking within the ambit of s 72(1)(k) of the Transport Act 1962. To prohibit parking unless a fee is paid to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Friar v Wellington City Council HC Wellington CRI 2010-485-84 [2010] NZHC 2012
Case: [2010] NZHC 2012
Decision Date: 2 November 2010

CaseChat Overview and Summary

In the High Court of New Zealand Wellington Registry, Murray John Friar has appealed against his convictions for parking offences made by Justices of the Peace. The Wellington City Council prosecuted Friar for parking his vehicle in coupon parking areas for longer than the permitted free period, as well as exceeding the maximum allowable parking times in 30 and 120-minute parking areas. Friar’s appeal primarily questions the validity of the coupon parking by-laws and whether the council's reliance on rates and road levies undermines the enforcement of parking regulations.

The court needed to determine whether the coupon parking by-laws were authorised by the Transport Act 1962 and if they were within the scope of the council's legislative powers. Friar argued that the by-laws were not intended to generate revenue but rather to manage traffic and safety, suggesting they were beyond the council's authority. Additionally, Friar contended that the council's reliance on rates and road levies should negate the parking fees. The court considered whether these arguments undermined the legitimacy of the council's enforcement of the parking by-laws.

The court found that the coupon parking by-laws were validly authorised under the Transport Act 1962, specifically Section 72(1)(k), as they effectively restricted parking by requiring payment for extended periods. The court dismissed Friar's claim that the by-laws were for revenue generation, agreeing with the reasoning in Kelly v Wellington City Council, which held that such by-laws are legitimate if they restrict parking. Friar's argument regarding the rates and road levies was also rejected, as the focus of the by-laws was on the obligations of those parking their vehicles, not on the ratepayer status of the parking vehicle's owner. Therefore, the court upheld the convictions and dismissed the appeal.

The court ordered that the appeal be dismissed and the convictions remain in place.

Orders