Parrant v Auckland Transport
[2015] NZHC 363
•5 March 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-366 [2015] NZHC 363
BETWEEN LLOYD PARRANT
Appellant
AND
AUCKLAND TRANSPORT Respondent
Hearing: 3 February 2015 Appearances:
CB Wilkinson-Smith for Appellant
AM Glenie and Mr Massey, together with Ms Hakaraia, for
RespondentJudgment:
5 March 2015
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 5 March 2015 at 3:00 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
PARRANT v AUCKLAND TRANSPORT [2015] NZHC 363 [5 March 2015]
[1] By leave of this Court, Lloyd Parrant has appealed a decision of Judge EM Aitken in the District Court dismissing an appeal against a decision of two Justices of the Peace regarding a traffic infringement notice.1 The notice, which required payment of a $40 fee for the infringement, was given after the appellant parked his Land Rover in what was clearly intended to be a loading zone.
[2] In this judgment I have made the following findings:
(a) A goods service vehicle is a vehicle with a gross laden weight of 6000 kilograms or more, operated by a person licensed to carry on a goods service, and registered as operating under a transport service licence.
(b) The appellant’s vehicle does not come within the definition of a goods
service vehicle.
(c) The Land Transport Rule: Traffic Control Devices 2004 (“the TCD”) requires that a loading zone must be marked out with two parking signs at each end of the loading zone, except where the zone is marked on the roadway with “LZ” or “Loading Zone” in which case only one parking sign is sufficient.
(d)The infringement notice served on the appellant could not have been validly issued because the location of the loading zone was not properly indicated in accordance with the TCD.
[3] I have allowed the appeal on the ground in (d) above.
Factual background
[4] On 19 March 2013, the appellant parked his Land Rover vehicle in what was clearly intended to be a loading zone on Durham St West, Auckland City. On the
road, the loading zone was marked out with yellow lines, but no wording; there was a sign on a pole at one end of the marked zone stating that the zone was for goods service vehicles only.
[5] The appellant received an infringement notice on the basis that his actions contravened r 6.16(1) of the Land Transport (Road User) Rule 2004 (“the RUR”). He challenged the notice before two Justices of the Peace on 11 November 2013, arguing that his vehicle qualified as a goods service vehicle. The appellant said his workplace was on the corner of Durham St West and Queen St and that, at the time of the alleged offence, he was engaged in carrying boxes to his workplace from his car. In his submission, it followed that the car came under the definition of goods service vehicle.
[6] This challenge was dismissed; the Justices relied on the fact that the appellant’s vehicle was registered as a private passenger vehicle and therefore could not be a goods service vehicle.2
[7] The appellant appealed to a District Court Judge, arguing that: (a) registration is not determinative of the issue; and
(b)a goods service vehicle licence is issued to the holder of the licence and not to the vehicle, and there was no evidence that the appellant was not the holder of the licence.
[8] He was again unsuccessful. Judge Aitken canvassed the relevant statutory provisions and held that land transport legislation requires a goods service vehicle to have a goods service licence. The Judge said that to hold that any vehicle engaged in the carriage of goods qualifies as a goods service vehicle was inconsistent with the scheme of the Land Transport Act 1998 (“the LTA”) and might enable goods service operators to avoid their obligations under that Act, which cannot have been the intention of Parliament.
[9] This appeal gives rise to two issues. First, whether the definition of goods service vehicle is adequately defined in the legislation and whether the appellant’s vehicle comes within the definition. Second, (a point not argued at the two previous hearings) what is a road controlling authority required to do to mark out a loading zone, and was the loading zone in this instance correctly marked?
Is the definition of goods service vehicle adequately defined in the legislation,
and does the appellant’s vehicle fit within the definition?
[10] Mr Parrant was issued an infringement notice for breaching r 6.16(1) of the
RUR. The rule provides:
6.16 Parking on loading zone
(1) A driver or person in charge of a vehicle must not stop, stand, or park the vehicle on any part of a roadway reserved by a road controlling authority as a loading zone—
(a) if the vehicle does not belong to the class (if any) specified on the sign; or
(b) if the driver leaves the vehicle unattended for more than 5 minutes or any period longer than that specified on the sign; or
(c) if goods or passengers are not actually being loaded or unloaded from the vehicle.
(2) This clause applies only if the location of the loading zone is indicated by the road controlling authority by the installation of the appropriate parking signs and markings prescribed by Land Transport Rule 54002: Traffic Control Devices 2004.
(3) Nothing in subclause (1) permits a vehicle to be left unattended within a loading zone if the appropriate parking sign indicates that the vehicle must be attended at all times.
[11] In Auckland City Council v Hamblin,3 Anderson J clarified that r 6.16(1) of the RUR is infringed where a driver stops a vehicle in a loading zone and the vehicle does not belong to the vehicle class specified for that loading zone. Even if the vehicle belongs to the loading zone’s vehicle class, r 6.16 is breached where the
driver leaves the vehicle unattended for more than the period specified on the sign or where he or she is not actually loading or unloading goods from his vehicle.
[12] The sign marking out the loading zone that is the subject of this dispute reads:
P
5
Loading Zone Goods Service Vehicles Only At All Times
5 min MAXIMUM
[13] Accordingly, this particular loading zone may be used for a goods service vehicle only.4
[14] The appellant submits that the definition of goods service vehicle is unclear. Although acknowledging some confusion in the language employed across the statutory regime, the respondent submits that the definition is “clear enough”, and that the appellant’s Land Rover is clearly not a goods service vehicle.
[15] The sign marking out the loading zone was erected pursuant to the TCD. R6-
2C of Schedule 1 of the TCD describes “goods service vehicles” as: “Vehicles designed exclusively or principally for the carriage of goods or used for the collection or delivery of goods in the course of trade as defined in the Land Transport (Road User) Rule”. This is the only place the term “goods service vehicle” is mentioned in the TCD. Unhelpfully, the RUR, under which the appellant was issued an infringement notice, does not contain a definition of the term.5
[16] The TCD and the RUR are pieces of subordinate legislation made in accordance with the powers conferred upon the Minister of Transport under the Land Transport Act 1998 (LTA).6 The LTA contains a definition of goods service vehicle
in s 2:
4 Rule 6.16(1)(a) at [10] above.
5 Somewhat confusingly, the RUR instead defines “goods vehicle” at r 1.6:
goods vehicle means a motor vehicle that is—
(a) designed exclusively or principally for the carriage of goods; or
(b) used for the collection or delivery of goods in the course of trade.
6 The RUR was made by the Minister of Transport under ss 152, 153 and 157 of the Land
goods service vehicle—
(a) means a motor vehicle used or capable of being used in a goods service for the carriage of goods; but
(b) does not include a vehicle specified as an exempt goods service vehicle in the regulations or the rules
[17] In order for a vehicle to be “used or capable of being used in a goods service for the carriage of goods” the following requirements must be met:
(a) First, the vehicle must have a gross laden weight of 6000 kilograms or more. This requirement is found in the definition of “goods service” contained in s 2 of the LTA.7
(b)Second, the operator of the vehicle must be licensed to carry on a goods service. A goods service is a transport service.8 A person who carries out a goods service is a transport service operator.9 No transport service operator may carry out a transport service without the requisite licence.10
(c) Third, the vehicle must be registered as operating under a transport service licence. Section 242 of the LTA requires motor vehicles to be registered and licensed before they can be operated on the road. Section 269 of the LTA entitles the Governor-General by Order in Council to make regulations providing for the licensing and registration of motor vehicles. The Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011 were made pursuant to s 269 of the LTA. Importantly, Schedule 1 of the regulations provides that the licence class of the motor vehicle is to be displayed in the
lower right-hand corner of the licence. The class is indicated by a
Transport Act 1998; the TCD was made under s 152 of the Act.
7 “Goods service” is defined as “the carriage of goods on any road, whether or not for hire or reward, by means of a motor vehicle whose gross laden weight is 6 000 kg or more…”
8 Transport Service is defined in s 2 of the LTA to include “any goods service”.
9 Section 2 of the Land Transport Act 1998 defines “transport service operator” as a “person who carries on a transport service, whether or not that person employees personnel to assists in doing so on its behalf; but does not include those personnel”.
10 Land Transport Act 1998, s 30J.
capital letter. Vehicles operated under “transport services licences”
must display either a “T” or an “L”.
[18] I am satisfied that the appellant’s vehicle does not meet the definition of a
goods service vehicle for the following reasons:
(a) The results of a Motochek query on the appellant’s car identified the
gross laden weight of the vehicle to be only 3,070 kilograms.
(b)The appellant did not claim that a goods service licence was displayed at the time of the infringement, let alone that he had been issued with a goods service licence for the vehicle.
(c) The appellant’s vehicle was not capable of being used in a goods service because it was not licensed accordingly. As at 22 July 2014, the appellant’s licence type was G, “private passenger”; I infer that to have been the position at the time of the alleged infringement. His vehicle was not registered and licensed so as to indicate that it was operated under a transport services licence.
[19] The requirement that a vehicle licensed for use in a goods service must have the appropriate license displayed is intended to assist enforcement of relevant legislation, including legislation related to the use of goods service loading zones. It would be wholly untenable for an enforcement officer to have to carry out an investigation into whether a vehicle belongs to the class entitled to use a specific loading zone and the purpose for which the vehicle was being used at the time, before determining whether an infringement had occurred. If a vehicle parked in a specified loading zone is not displaying the appropriate registration, an enforcement officer can issue an infringement notice without further inquiry once he or she is satisfied the maximum parking time has been exceeded or that the vehicle is not being used for loading or unloading goods at the time.
[20] The appellant’s argument that he was entitled to park his vehicle in a goods
service loading zone fails for those reasons.
What is a road controlling authority required to do to mark out a loading zone, and was the loading zone in this instance correctly marked?
[21] Rule 6.16(2) of the RUR states that someone can commit an offence against r 6.16 only if the loading zone is correctly sign-posted and marked out in accordance with the prescriptions of the TCD. The appellant argues that the parking signs and markings identifying the loading zone did not meet the requirements prescribed by r 12 of the TCD. Accordingly, he argues that he committed no infringement.
[22] At the hearing of the appeal, the respondent protested that the appellant should not be able to raise the alleged non-compliance of the loading zone signage because it is a new ground of appeal that was neither argued in previous hearings nor set out in its notice of appeal. The respondent submits that to allow the new ground to be advanced would be contrary to r 8.4(1)(d) of the Criminal Procedure Rules
2012, which required the appellant to set out his grounds of appeal in his notice of application for leave to appeal.
[23] Woolford J granted leave to appeal on the basis that the loading zone signage was deficient, but the particular point raised was the lack of an arrow on the sign. This point has since been abandoned and a new point has been raised, namely that the TCD requires that the loading zone must be marked out with two signs or, if it was marked out with only one sign, that there must be additional road markings.
[24] Given that leave to appeal on the basis of deficient signage was granted, although on the basis of a different alleged deficiency, and that the respondent had adequate notice of the appellant’s amended argument, I am satisfied that the respondent has suffered no injustice by having to meet the new ground. Leave to amend the grounds of appeal is granted.
[25] I turn now to consider the relevant provisions of the TCD to ascertain whether the loading zone was marked out correctly.
[26] A loading zone is a type of restriction on parking. Rule 12.3 of the TCD
says:
Requirement to indicate restriction on parking
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.
[27] The loading zone provisions in r 12.4 say:
Types and means of indicating parking restrictions
…
Loading zone
12.4(2) A road controlling authority may restrict the parking of vehicles by designating an area of road as a loading zone to which a time restriction may also apply.
12.4(3) A road controlling authority must provide, in accordance with 12.5, signs that comply with Schedule 1, and that specify the class of vehicle, class of road user or designated activity to which the loading zone is restricted.
12.4(4) Except as provided in 12.4(5), a road controlling authority must, unless this is impracticable, indicate a loading zone by marking:
(a) where the parking area is intended for parking parallel to the edge of the roadway:
(i) a continuous yellow line at right angles to the kerb or roadway edge at each end of the area of the roadway; and
(ii) a broken or continuous yellow line parallel to the kerb or roadway edge, not less than 2 m and not more than 3 m from the kerb or roadway edge; or
(b) where the parking area is intended for parking at an angle, a continuous yellow line on the left and right side of each parking space within the loading zone.
…
12.4(5A) A road controlling authority may mark on the area of roadway that is designated as a loading zone, letters or symbols that describe the loading zone and that conform with the specifications in figures M3-
1 to M3-3A or M8-1 and M8-2 in Schedule 2.
[28] Rule 12.5 relevantly says:
General requirements for signing parking restrictions
12.5(1) Except as provided in 12.5(2)… a road controlling authority must indicate a parking restriction… by providing parking signs, as
specified in Schedule 1 and, if appropriate, with arrows or supplementary notices, defining their area or time of application:
(a) at each end of the section of roadway affected; and
(b) at or near both sides of any intervening intersection; and
(c) at distances of not more than 100 m between any two signs.
12.5(2) Where a road controlling authority has indicated the extent of a loading zone… by means of markings, as described in 12.4(5A)… it may, instead of complying with 4.2(3)(b), indicate that parking restriction by providing parking signs, as specified in Schedule 1 and, if appropriate, with arrows or supplementary notices, defining their area or time of application:
(a) within the area and close to the end of the area furthest from an approaching driver; and
(b) at distances of not more than 200 m between any two signs.
[29] Rule 4.2(3) says:
Unless specified elsewhere in this Rule, regulatory signs must be installed to instruct road users of a requirement, restriction or prohibition on traffic:
(a) at each point where the requirement, restriction or prohibition applies; or
(b) where the requirement, restriction or prohibition applies to a length of road:
(i) at the start; and
(ii) after each intersection along its length; and
(iii) at the end; and
(iv) at intervals along its length, as specified in this rule or other enactment…
[30] Rules 12.5(1) and 4.2(3) establish that the default mandatory position for marking out traffic requirements that affect a length of road is that there are regulatory signs at both the start and the end of the affected length. The required parking signs are set out in schedule 1 of the TCD. The signs must define the parking restriction in terms of type of restriction, class of vehicles affected, the period of application and the area of road affected. The default position for marking out a loading zone is to have parking signs at each end of the loading zone.
[31] I accept the appellant’s argument that the sole exception to this default rule is that, if the road controlling authority chooses to delineate a loading zone using road markings that say “LZ” or “Loading Zone”, it can dispense with the need for parking signs at each end and just have one sign at the end furthest from an approaching driver.
[32] The loading zone in which the appellant parked his car failed to meet the default requirements and the requirements of the exception. It is agreed by both parties that it only had one sign and no road markings apart from the standard solid and broken yellow lines as prescribed.
[33] The respondent makes three arguments in reply, all of which I have decided must fail. First, the respondent argues that r 6.16(2) requires only that “the location of the loading zone is indicated” by appropriate parking signs and markings. In this case, it is submitted, the location of the loading zone was clearly indicated by the sign and the yellow lines, and that the appellant must have known that he was parking in a goods service loading zone. But r 6.16(2) requires the loading zone to be indicated “by the installation of the appropriate parking signs and markings prescribed” by the TCD. The language of the provision is not permissive. It requires compliance with whatever is prescribed by the TCD, and the relevant TCD provisions are mandatory.
[34] Second, the respondent submits that r 12.4(4), which requires a yellow box, is mandatory, whereas r 12.4(5A), which allows a loading zone to be marked by letters or symbols conforming with the schedule 2 figures, is permissive. This argument, however, ignores the mandatory requirement of r 12.5(1) for signs at each end of the roadway affected.
[35] Third, the respondent submits that the road markings “LOADING ZONE” or “LZ” are optional. That is true, up to a point. If the road controlling authority chooses to take the option of omitting the words from inside the yellow markings, it must then ensure that there are two signs marking out the loading zone.
[36] The photographs in evidence show there can have been no doubt that the appellant was parking in what was intended to be designated a goods service loading zone. But the TCD contains mandatory and unambiguous language which allows for only two legally correct options to mark out a loading zone, neither of which was adopted for the space in question.
Outcome
[37] I allow the appeal on the ground not argued in the District Court; namely, that the loading zone was not properly marked out in accordance with the TCD. The infringement notice was not validly issued and is set aside.
……………………
Toogood J
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