Hutt City Council v O'Connor
[2014] NZHC 2290
•22 September 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2014-485-59 [2014] NZHC 2290
BETWEEN HUTT CITY COUNCIL
Appellant
AND
ALWYN O'CONNOR Respondent
Hearing: 26 August 2014 Appearances:
R J Fowler QC and M K Booth for appellant
D L Stevens QC for the respondentJudgment:
22 September 2014
JUDGMENT OF CLIFFORD J
Introduction
[1] The respondent, Alwyn O’Connor, was issued with a parking infringement notice by the appellant, Hutt City Council (the Council) on 18 June 2013. The area where Mr O’Connor parked his vehicle was subject to a “P 120” parking time restriction. The infringement notice, for $12 for breach of the parking restriction was issued by a Council parking warden and served on Mr O’Connor by attaching it to the windscreen of his vehicle.
[2] Mr O’Connor exercised his right to have a hearing in respect of the alleged offence. At that hearing he admitted the factual matters set out above. However, he submitted that he had committed no offence because the parking time restriction was
not validly imposed by the Council.
HUTT CITY COUNCIL v O'CONNOR [2014] NZHC 2290 [22 September 2014]
[3] Judge Tuohy upheld Mr O’Connor’s objection, and cancelled the
infringement fee.1 The Council now applies for leave to appeal that decision.
[4] Section 296 of the Criminal Procedure Act 2011 provides that a prosecutor or defendant may, with the leave of the first appeal court, appeal on a question of law. The Council submits that leave should be granted as the question of law is significant. The Council has approved other time restricted parking areas under the authority it believed r 12.4(1) of the TCD Rule provided and the District Court decision will therefore have a broader effect.
[5] I agree that the issue of whether the TCD Rule empowers time-restricted parking is of significance,2 and accordingly grant leave to appeal.
The facts and the statutory framework
[6] The Council issued the infringement notice on the basis that Mr O’Connor breached r 6.4(1) of the Land Transport (Road User Rule) 2004 (the Road User Rule) by parking in a “P 120” area for more than two hours. Rule 6.4 of the Road User Rule provides:
6.4 Parking contrary to notice, traffic sign, or marking
(1) 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
[7] Both parties accepted that r 6.4(1)(a) and (b) were satisfied: Mr O’Connor
parked contrary to a sign that was on or adjacent to the road and that indicated
parking was restricted. The only issue was whether the “P 120” restriction was, in
1 Hutt City Council v O’Connor DC Wellington CRI-2013-096-011426, 11 June 2014.
2 R v Leonard [2007] NZCA 452, (2007) 23 CRNZ 624 at [13]-[14].
terms of r 6.4(1)(c), authorised by a road controlling authority under the Land
Transport Rule: Traffic Control Devices 2004 (TCD Rule).
[8] The Council relied on r 12.4(10) of the TCD Rule for its authorisation. That rule provides:
A road controlling authority may restrict the parking of vehicles by designating an area of road to be time-restricted.
[9] The Council previously provided for time-restricted parking through bylaw but the current bylaw only empowers the Council to specify areas for coupon or metered parking areas. However, on 7 October 2010 a Council officer acting under delegated authority to administer the powers of the Council “under the Transport Act
1962, Land Transport Act 1998 and Regulations made under those Acts”, had approved a recommendation of Council officers that the relevant parking time restriction be imposed on Port Road. Therefore, the Council said, r 6.4(1)(c) was satisfied. Rule 12.4(10) of the TCD Rule authorised the Council to impose time restricted parking and on 7 October 2010 a Council officer did so.
[10] The TCD Rule and Road User Rule are, as provided for by Part 11 of the
Land Transport Act 1998, Land Transport Act subordinate legislation.
[11] Section 152 of the Land Transport Act provides as follows:
Power of Minister to make ordinary rules
The Minister may make rules (ordinary rules) for all or any of the following purposes:
(a) safety and licensing for any form of transport within the land transport system, including (but not limited to) technical requirements and standards:
(b) assisting land transport safety and security, including (but not limited to) personal security:
(c) assisting economic development: (d) improving access and mobility:
(e) protecting and promoting public health: (f) ensuring environmental sustainability:
(g) any matter related, or reasonably incidental, to any of the following: (i) the Minister's objectives under section 169:
(ii) the Minister's functions under section 169A:
(iii) the Agency's objective under section 94 of the Land Transport
Management Act 2003:
(iv) the Agency's functions under section 95 of the Land Transport
Management Act 2003:
(h) any other matter contemplated by a provision of this Act.
[12] Section 152 is, as relevant here, inclusively expanded by s 157(a) and (g)
which provide:
Rules concerning roads
Without limiting the general power to make rules under section 152, ordinary rules may—
(a) regulate the use of roads, and empower road controlling authorities to control, restrict, and prohibit traffic, and to close roads in specified circumstances or on specified occasions, in accordance with the rules:
…
(g) provide for the design, construction, maintenance and operation of traffic control devices:
[13] The TCD Rule was made by the Minister in December 2004 pursuant to s 152 of the Land Transport Act. The objective of the TCD Rule reads as follows:
Land Transport Rule: Traffic Control Devices 2004 specifies the requirements for the design, construction, installation, operation and maintenance of traffic control devices, and sets out the functions and responsibilities of road controlling authorities in providing traffic control devices to give effect to their decisions on the control of traffic.
This rule clarifies, consolidates and rationalises the existing requirements for traffic control devices. It addresses the risks to land transport safety arising from the use of traffic control devices.
The objective of the rule is to contribute to a safe and efficient road network by ensuring that traffic is controlled by means of traffic control devices that are safe, appropriate, effective and uniform and are applied in a consistent manner.
The purpose of this rule is to contribute to the safe and efficient operation of our road network by:
requiring uniformity in the form, appearance and placement of traffic control devices;
establishing minimum standards for traffic control devices;
specifying who may authorise and install traffic control devices;
ensuring that road controlling authorities have regard to safe practice in the design and installation of traffic control devices and how they are used for traffic management.
The rule states who is responsible for ensuring compliance with its requirements: road controlling authorities, rail operators, operators of hand-held ‘Stop’ signs, school patrols and all other road users.
[14] The TCD Rule contains the following descriptions of its scope and objective:
1.2 Scope of the rule
This rule:
(a) specifies requirements for the design, construction, installation, operation and maintenance of traffic control devices; and
(b) sets out the functions and responsibilities of road controlling authorities in providing traffic control devices to give effect to their decisions on the control of traffic.
1.3 Objective of the rule
The objective of this rule is to contribute to a safe and efficient roading environment for all road users by ensuring that traffic is controlled by means of traffic control devices that are safe, appropriate, effective, uniform and consistently applied.
[15] The role of road controlling authorities, such as the Council, is described in the following terms:
2.1(1) A road controlling authority must:
(a) authorise and, as appropriate, install or operate traffic control devices:
(i) if required by or under this rule or other enactment; or
(ii) to instruct road users of a prohibition or requirement that it has made concerning traffic on a road under its control; or
(iii) to warn road users of a hazard; and
(b) remove a traffic control device if required by or under this rule or other enactment.
2.1(2) A road controlling authority may authorise and, as appropriate, install, operate or remove traffic control devices:
(a) if desirable for the guidance of traffic or to draw attention to a requirement that controls traffic; or
(b) to provide information to road users.
[16] The term “traffic control device” is defined in the following way:
Traffic control device
means a device used on a road for the purpose of traffic control; and includes any:
(a) sign, signal or notice; or
(b) traffic calming device; or
(c) marking or road surface treatment.
[17] The various sections of the TCD Rule deal with a range of traffic control devices:
(a) section 4 – Traffic signs; (b) section 5 – Markings;
(c) section 6 – Traffic signals;
(d) section 7 – Channelling traffic devices;
(e) section 8 – Pedestrian crossings, school crossing points, school patrols and other pedestrian facilities;
(f) section 9 – Level crossings;
(g)section 10 – Intersections as controlled by stop or give-way signs, roundabouts or traffic signals;
(h)section 11 – Traffic control devices for special classes of vehicle and road user; and
(i) section 12 – Stopping, standing and parking.
[18] Rule 12.3 sets out requirements to indicate restrictions on parking in the following terms:
If a road controlling authority imposes a restriction on the parking of vehicles it must instruct road users by the means specified in 12.4.
[19] Rule 12.4 is headed “Types and means of indicating parking restrictions” and provides a variety of means to indicate different types of parking restrictions using the following pattern (when dealing with all but angle parking). The first provision states that “a road controlling authority may restrict the parking of vehicles by designating an area of road” as a loading zone; as reserved parking; as zone parking or as time-restricted parking. The following two rules set out the manner in which such areas are to be marked or signed. This pattern can also be seen in r 12.4(10)- (12):
12.4(10) A road controlling authority may restrict the parking of vehicles by designating an area of road to be time-restricted.
12.4(11) A road controlling authority must indicate a time-restricted parking area by providing, in accordance with 12.5, appropriate signs that comply with Schedule 1, and which must specify the time limit to which parking in the area is restricted.
12.4(12) A road controlling authority may mark a time-restricted parking area that complies with Schedule 2.
[20] The angle parking rule is drafted slightly differently. It provides that “[i]f a road controlling authority restricts vehicles to parking only at an angle to the direction of the roadway, the road controlling authority must” mark the road in the way described.
[21] Against that background, the issue raised by this appeal can be stated as follows:
Does r 12.4(10) of the TCD Rule give the Council power to impose time-restricted parking, or does it only determine how the Council must indicate and mark time-restricted parking areas that the Council has enacted under some other legislative authority?
Case on appeal
Mr O’Connor
[22] Before Judge Tuohy, and again in this appeal, Mr O’Connor argues that the
TCD Rule requires and controls the installation of traffic control devices, to give
effect to traffic control decisions made by a road control authority under separate legislative powers. On that basis, when the Council imposed time-restricted parking on 7 October 2010 in reliance on r 12.4(10) of the TCD Rule it acted without legislative authority. In s 22AB(1)(m) of the Land Transport Act Parliament has expressly empowered the Council to make a bylaw to restrict parking and the TCD Rule is limited to prescribing the means of indicating parking restrictions which are to be implemented as a consequence of a bylaw.
[23] Furthermore, the TCD Rule would be ultra vires if it did empower the Council to restrict parking. Section 157(g) of the Land Transport Act does not empower the Minister to make ordinary rules regarding parking. The Minister is deemed to know of that limitation and this therefore counts against the interpretation for r 12.4(10) argued for by the Council.
[24] Mr O’Connor supports the Judge’s approach to the interpretation of r 12.4(10) and contends that a consideration of the treatment of infringement offences under the Land Transport Act supports his argument that the TCD Rule does not empower the Council to impose time-restricted parking. If the TCD Rule did empower the Council to restrict areas of road in the absence of a bylaw there would be no offence provision to fit the offence.
The Council
[25] The Council says r 12.4(10) means what it says: a road controlling authority may restrict the parking of vehicles by designating an area of road to be time- restricted. That is a substantive empowerment. The TCD Rule, in other words, stipulates the types and means by which parking restrictions may be imposed and indicated: it is not limited to the means whereby parking restrictions otherwise imposed are indicated.
[26] Furthermore, the TCD Rule is not ultra vires. Section 157 of the Land Transport Act gives the Minister the power to make an ordinary rule empowering road control authorities to control, restrict and prohibit traffic; the imposition of parking restrictions is such a control. The Council’s 7 October 2010 decision to impose time-restricted parking pursuant to r 12.4(10) of the TCD Rule is, therefore, a
substantive parking restriction properly imposed by the Council. A breach of that parking restriction is an offence in terms of r 6.4(1) of the Road User Rule.
[27] The Council submits that Judge Tuohy, in error, did not give sufficient weight to the statutory context and rather focussed on the wording of the TCD Rule alone in interpreting r 12.4(10). Judge Tuohy should have considered the text and purpose of the TCD Rule and, as the TCD Rule is subordinate legislation, examined the general legislative context under which the TCD Rule was created. In particular, Judge Tuohy should also have examined the treatment of infringement offences under the Land Transport Act and associated regulations, should not have considered the general practice of other local bodies and should have reached a conclusion on the issue of whether the Council could only impose time-restricted parking through bylaw.
Analysis
[28] I agree with Judge Tuohy’s conclusion that r 12.4(10) of the TCD Rule was “intended merely to declare that a road controlling authority has (independently of that Rule) a power to designate an area of road for time-restricted parking rather than to itself confer that power”.3 The TCD Rule is, properly interpreted, intended to relate to the devices used to give effect to decisions relating to the control of traffic (traffic control devices) as opposed to empowering the making of those decisions.
[29] Judge Tuohy appropriately focussed on the text and purpose of the TCD Rule in interpreting r 12.4(10).
[30] The tenor of the “Objective of the rule”4 indicates that the TCD Rule is concerned with traffic control devices, not with road controlling authorities’ powers to impose parking or any other forms of traffic control in particular areas. In particular, the TCD Rule is said to:
…specif[y] the requirements for the design, construction, installation, operation and maintenance of traffic control devices, and sets out the functions and responsibilities of road controlling authorities in providing
traffic control devices to give effect to their decisions on the control of traffic.
[31] The scope of the TCD Rule as set out in r 1.2, and the statement of objective in r 1.3,5 reinforce the conclusion that the TCD Rule is concerned with traffic control devices and the responsibilities of road controlling authorities in respect of such devices, not with the substantive traffic control decisions to which such devices give effect.
[32] The role of road controlling authorities as specified in r 2.16 does not include the making of prohibitions or requirements concerning traffic. Rather, its focus is on authorising and, as appropriate installing or operating traffic control devices.
[33] Both the wording of r 12.3 and the heading to r 12.4 show that the purpose of r 12.4 is to specify the means by which parking restrictions are to be indicated to road users if such a restriction is imposed rather than to confer the power to impose such restrictions. Rule 12.4 is headed “Types and means of indicating parking restrictions” and follows r 12.3 which provides:
If a road controlling authority imposes a restriction on the parking of vehicles it must instruct users by the means specified in 12.4.
[34] Rule 12.4 deals with a number of parking restrictions and follows a similar pattern when dealing with all but angle parking. When r 12.4(10) is read in the context of the TCD rule as a whole, the first provision in the pattern is, in my view, declaratory of the Council’s power (found elsewhere) prior to the setting out of the operative rules as to marking and signage in the event the power is exercised. The different treatment of angle parking is a matter of semantics, not substance, and does not alter this conclusion.
[35] I will now, consistent with the Council’s submission, cross-check this conclusion against the broader legislative context, particularly the Minister’s rule- making powers and the treatment of infringement offences under the Land Transport Act and associated regulations.
[36] The Minister has a broad power to make ordinary rules pursuant to ss 152 and 157 of the Land Transport Act.7 Section 152 empowers the Minister in very broad terms to make ordinary rules.8 Section 157 further specifies that the Minister may make such rules for purposes that include:
(a) regulating the use of roads and empowering road controlling authorities to control, restrict and prohibit traffic (s 157(a)); and
(b)providing for the design, construction, maintenance and operation of traffic control devices (s 157(g)).
[37] Judge Tuohy acknowledged these rule making powers and that the TCD Rule purports to be made pursuant to the more generic s 152 rule making power, rather than the specific powers in s 157. The Council argues that the reason the TCD Rule was not made pursuant to s 157(g) is because it was intended to deal with matters broader than the “design, construction, maintenance and operation of traffic control devices”. In support of this the Council points to the New Zealand Transport Agency’s Traffic Control Devices Manual, which, it says expressly acknowledges the possibility that the TCD Rule may be enforced without the need for a bylaw:
The existence of underlying legislation prohibiting parking in certain locations (for instance, within 6 m of an intersection or obstructing vehicle entrances and exits) as prescribed in the TCD and Road User Rules removes the need for such restrictions to be specifically identified within a local authority bylaw and they may not need to be specifically marked or signed. However, where appropriate, they can be reinforced and identified to road users through the provisions of the appropriate traffic control devices. In such circumstances, however, care is need to ensure any offence notice issued during the enforcement stipulates the correct description of the offence committed. Alternatively, it is recommended the restriction is implemented through the bylaw process to negate any confusion.
[38] I agree with the Council that it is not necessary for time-restricted parking to be imposed only through a bylaw. The rule making provisions in ss 152 and 157 give the Minister a broad power that could be used to empower local authorities to impose time-restricted parking. However, the Minister has not given local authorities that power through the TCD Rule. That the TCD Rule was made
pursuant to s 152 and not s 157(g) does not alter my conclusion that the clear effect of the TCD Rule is to provide rules for traffic control devices.
[39] I also do not accept Mr O’Connor’s argument that s 157(g) limits the Minister’s power to regulate the use of roads to “traffic” – that is moving vehicles, rather than stationary or parked vehicles. Nor do I accept his argument that this interpretation is supported by the power to restrict parking in s 22AB of the Land Transport Act and the Minister’s presumed desire to avoid creating duplicate empowering provisions. Given Mr O’Connor’s acceptance that the “P 120” sign is a traffic control device, and that the TCD Rule deals extensively with parking restrictions, I do not accept his argument that a parked vehicle is not “traffic” to be controlled. I have no difficulty concluding that s 157(g) allows the Minister to empower local authorities to restrict parking. In any event, the Minister’s more general rule making power in s 152 gives the Minister the power to make rules for the purpose of improving access and mobility, for the purpose of any other matter contemplated by the Act (and s 22AB contemplates parking restrictions), and any matter related or reasonably incidental to the objectives of, amongst other things, creating an effective, efficient, and safe land transport system. There is no presumption against duplication, and given the broad powers contained in ss152 and 157 I find that the Minister could make a rule empowering councils to restrict parking.
[40] This conclusion is further re-enforced by the following consideration of the offence provisions on which the Council relied in its argument that a bylaw was not necessary. The Land Transport Act provides for infringement offences and infringement notices. A stationary vehicle offence is a type of infringement offence enforceable by parking wardens. A stationary vehicle offence is defined in s 2 of the Land Transport Act as:
Stationary vehicle offence means—
(a) parking in any portion of road in breach of –
(i) any Act or regulation; or
(ii) any bylaw made under section 22AB(1)(m) to (o):
(b) any offence specified as a stationary vehicle offence in regulations made under this Act.
[41] The Council submits that the separation of breaches of Acts, regulations and bylaws indicates that parking restrictions can be imposed in a manner other than by way of bylaw, contrary to Mr O’Connor’s position. Section 40 of the Land Transport Act provides that it is an offence to contravene a provision of an ‘ordinary rule’ if that contravention is prescribed as an offence by regulations made under s 167 of the Land Transport Act. The Land Transport (Offences and Penalties) Regulations 1999 (Offences Regulations) were made under s 167 of the Land Transport Act and provide for a range of offences of parking in breach of a variety of Acts, regulations, bylaws and rules. Of significance, the Offences Regulations list the following as
offences:9
(a) under the heading “Land Transport Act 1998”, contravention, without reasonable excuse of a bylaw made under s 22AB or 22AC of the Land Transport Act; and
(b) under the heading “Land Transport (Road User) Rule 2004 (61001)”,
with reference to r 6.4(1), parking contrary to a “traffic sign” etc.
[42] In terms of penalty, the infringement fee for breach of the bylaw offence at (a) is specified in sch 1 as $150. Schedule 1B prescribes the infringement fee for breach of r 6.4(1) of the Road User Rule. Thus, there are distinct offences of breaching a bylaw relating to parking and breaching a rule related to parking.
[43] Schedule 1B which prescribes the infringement fee for breach of r 6.4(1) of the Road User Rule, however provides:
Any parking offence involving parking on a road in breach of a local authority bylaw, in excess of a period fixed by a meter or otherwise, where the excess time is [various times listed] …
[44] Mr O’Connor relies on this provision to argue that if the TCD Rule did
empower the Council to restrict areas of road in the absence of a bylaw, this would
9 Schedule 1.
lead to the absurdity that there would be no offence provision to fit the offence. This would be because breach of r 6.4(1) of the Road User Rule is linked to sch 1B of the Offences Regulations, which requires a breach of a local authority bylaw.
[45] The Council argues, and I agree, that the reference to ‘bylaw’ does not thereby create a requirement that time-restricted parking be imposed only by way of bylaw. Clause 2(3) of the Offence regulations states that:
The brief description given in the second column of Schedule 1, and the first column of Schedule 1A and Schedule 1B, are intended only to be an indication of the content of the provisions they describe, and are not intended to be used in the interpretation of the provisions.
[46] A range of parking offences exist under the Land Transport Act that are not limited to situations involving the breach of a bylaw (see sch 1 of the Offences Regulations).
[47] At the same time, however, this does not assist the Council in its argument that r 12.4(10) of the TCD Rule empowers it to impose time-restricted parking. Whilst I agree the broader legislative context suggests that the Council could impose time-restricted parking pursuant to a rule, a proper interpretation of the TCD Rule makes it apparent that this is not the effect of the rule upon which the Council relied.
[48] I therefore conclude that Judge Tuohy’s interpretation of r 12.4(10) was correct. In terms of the issue Judge Tuohy did not decide, I find that the Minister may, but has not, created a rule empowering local authorities to restrict parking. In the absence of such a rule, the Council will need to make a bylaw pursuant to s
22AB(1)(m) of the Land Transport Act which provides:
(1) A road controlling authority may make any bylaw that it thinks fit for
1 or more of the following purposes
…
(m) prohibiting or restricting, subject to the erection of the prescribed signs, the stopping, standing, or parking of vehicles on any road; limiting the stopping, standing, or parking of vehicles on any road to vehicles of any specified class or description; limiting the period of time that vehicles may park on any part of the road where parking is limited to such vehicles; and providing that a vehicle used for the time being for any specified purpose must be treated for the purposes of the bylaw to be of a specified class or description, whether or not the
vehicle belongs to any other class or description for any other purpose[.]
[49] As Mr O’Connor submitted, there is some public interest significance to the need for the Council to make a bylaw. The making of a bylaw is a public process that requires consultation with the community using the special consultative procedures set out in s 83 of the Local Government Act 2002.10 This requirement for consultation, Mr O’Connor submitted is consistent with Parliament’s emphasis in the Local Government Act on the importance of transparency in local government decision making.11 In contrast the Council’s decision to impose time-restricted parking in Port Road was made with no openness and consultation only with the person who requested the restriction.
[50] Turning finally to Judge Tuohy’s consideration of the past and current practice of local authorities, the Council accepts that it may be appropriate to consider past practice in difficult statutory interpretation exercises. However, its concern is that Judge Tuohy has prioritised consistency with past practice rather than the correct interpretation of r 12.4(10) of the TCD Rule. It also appropriately identifies that there are a number of risks in considering past practice. For example, the TCD Rule only came into force in February 2005 and it may be the relative newness of the TCD Rule, or ignorance, that explains why all but one local body used a bylaw to impose time restricted parking.
[51] I do not accept that Judge Tuohy’s consideration of the practice of other local bodies has led him into any error. Judge Tuohy completed a thorough exercise of statutory interpretation and was clear that “past and general practice cannot prevail over a clear legislative intention”.12 Here, that general practice supports the conclusion reached when r 12.4(10) is properly interpreted.
[52] I further note, though this argument was not advanced before me, that the very structure of r 6.4(1) of the Road User Rule supports the conclusion I have reached. The focus of r 6.4(1) is on the need for parking restrictions to be marked, in
accordance with, and as authorised by, the TCD Rule. The reference at r 6.4(1)(c) to
10 Land Transport Act 1998, ss 22AD and 22AE.
11 Local Government Act 200, s 14(1).
12 At [7].
authorisation under the TCD Rule is not an indication that the TCD Rule substantively authorises parking restrictions, but rather that an offence will not be committed unless the parking restriction was properly brought to the person’s attention. The requirement that the restriction on parking be imposed legally is implicit in the provision, and especially r 6.4(1(c), and here was absent.
Outcome
[53] I therefore grant the Council leave to appeal but decline the appeal.
[54] Judge Tuohy’s decision that r 12.4(10) of the TCD Rule did not empower the Council to impose time-restricted parking and that Mr O’Connor’s infringement notice was not therefore validly issued pursuant to r 6.4(1) of the Road User Rule and should be cancelled is confirmed.
“Clifford J”
Solicitors:
DLA Phillips Fox, Wellington for appellant.