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 is restrict parking.  The plain meaning is plain.  Nothing more need be said.

[7]      That deals with the first ground of the appeal.  The by-law is authorised by the empowering legislation and the by-law is legitimately authorised by virtue of s 72(1)(k).

[8]      The second ground of appeal is:

Nor do the regulations cited to the Court encompass the implied contract obligations encumbering the Council under their rates demand and the “road levy” herein.

[9]      It is difficult to be clear exactly what this means.  Firstly, if it is intended to suggest that somehow the payment of rates by a Wellington property owner exempts them from paying parking fees then I reject that submission.   There is simply no basis in law upon which such assertion is made.  The focus in s 72 and the relevant by-laws is on the legal obligations of those who park their cars in areas governed by the by-laws.  Whether the owner or the parker of the vehicle is or is not a rate payer in the area is simply irrelevant.

[10]     The second possibility is that Mr Friar’s submissions referred to s 72(3) of the Transport Act 1962.  It provides as follows:

72       Bylaws as to the use of roads

(3)       All charges, fees, and tolls received by any local authority under this section in respect of any road shall, without any deduction except for the cost of collection, be expended on the maintenance of that road.

[11]     Mr Friar claims that the charges, fees and tolls received by the Wellington City Council under this  section are not expended on maintenance of the roads. Whether they are or are not is not a matter of concern in this case.   This is a prosecution  under  the  various  relevant  by-laws.    Whether  the  Wellington  City Council have or have not complied with s 72(3) does not affect Mr Friar’s liability in law for this offending.

[12]     I reject the grounds of appeal and the appeal will be dismissed.

Ronald Young J

Solicitors:

M J Friar, 6 Plunket Street, Kelburn, Wellington 6012

A M White, DLA Phillips Fox, PO Box 2791, Wellington 6140

email:  alei[email protected]