Stanton v Nelson City Council
[2014] NZHC 3117
•8 December 2014
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CIV-2014-042-246 [2014] NZHC 3117
BETWEEN HONE MA HEKE AKA LEWIS REGINALD STANTON Appellant AND
NELSON CITY COUNCIL Defendant
Hearing: 1 December 2014 Counsel:
S J Zindel and J Gully for Appellant
J C Ironside and A C Besier for RespondentJudgment:
8 December 2014
JUDGMENT OF GODDARD J
This judgment was delivered by me on 8 December 2014 at 11.30 am, pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Zindels, Nelson for Appellant
Fletcher Vautier Moore, Richmond for Respondent
STANTON v NELSON CITY COUNCIL [2014] NZHC 3117 [8 December 2014]
Introduction
[1] This is an appeal by Mr Stanton against a decision of Judge Tompkins in the Nelson District Court on 17 October 2014 granting the Nelson City Council’s (the Council) application for a limited injunction under s 162 of the Local Government Act 2002 (the Act) restraining Mr Stanton from parking his horse and cart in the city centre in breach of cls 4 and 6 of the Council’s parking bylaw.
Section 162, Local Government Act 2002
[2] Section 162 of the Local Government Act 2002 provides:
162Injunctions restraining commission of offences and breaches of bylaws
(1) A District Court may, on the application of a local authority, grant an injunction restraining a person from committing a breach of a bylaw or an offence against this Act.
(2) An injunction may be granted under subsection (1)—
(a) despite anything in any other enactment:
(b) whether or not proceedings in relation to the breach or offence have been commenced:
(c) if a person is convicted of the breach or offence,—
(i) in substitution for, or in addition to, any other penalty; or
(ii) in subsequent proceedings.
Background
[3] Mr Stanton has an unusual lifestyle. He keeps all of his possessions in a horse-drawn cart and an attached trailer (referred to for convenience sake as “Mr Stanton’s cart”). He spends his time travelling in the cart around the Nelson City and region. He is largely self-sufficient and chooses not to receive any social welfare payments from the Government but instead supports himself by donations from members of the public. He parks his cart in the central area of Nelson City where the greatest foot traffic is, so as to maximise the receipt of donations from passersby. This means he often parks in either metered parking spaces or in spaces where there is a finite time limit imposed by the Council. Mr Stanton, however, has
a philosophical aversion to paying parking fees and does not do so; at times he also remains in a finite parking space for longer than the time stipulated.
[4] This defiant approach to the parking regulations has unsurprisingly attracted the attention of the Council parking enforcement officers. The Council is a territorial authority with bylaw making powers under s 145 of the Act. It is also a local authority with road controlling powers to prohibit or restrict the stopping, standing or parking of vehicles on any road under its control, pursuant to ss 22AB(1)(m), (n) and
(o) of the Land Transport Act 1998. The Council has promulgated a parking bylaw,1
covering in particular a defined area of the Nelson city centre (the city centre), bounded by Collingwood Street to the east, Selwyn Place and the edge of Trafalgar Square to the south, Rutherford Street to the west, and the Matai River to the north.
[5] Council parking enforcement officers are understandably of the view that when Mr Stanton parks his cart, he is required to comply with the parking bylaws promulgated by the Nelson City Council, as are all persons parking any manner of vehicle.2 Because he refuses to comply, he has received a large number of infringement notices and, as a result, has incurred a large number of fines.
[6] As at the date of the hearing in front of Judge Tompkins on 11 September
2014, the unpaid fines resulting from infringement notices issued to Mr Stanton totalled some $8,800. Mr Stanton has refused to pay those fines and has continued to park his cart in the city centre in breach of the parking bylaw. He takes the view that the bylaw does not apply to him. I understand that Mr Stanton was ordered to do community service for failure to pay his outstanding fines but has refused to do so. He is now for sentence on 12 December 2014 for breaching that Court order and will likely be sentenced to a term of imprisonment.
Legislative framework
[7] Clause 3 of the Nelson City Council Parking and Vehicle Control Bylaw 2011 (the bylaws) provides:
1 Nelson City Council Parking and Vehicle Control Bylaw 2011.
2 Parking in the city centre was free of charge during the months of July, August and September
2014, with the exception of Wakatu Square pay and display area. The only restriction was a time limit.
3. DEFINITIONS
3.1All words or expressions not defined in this Bylaw shall, unless the context otherwise requires, have the same meaning as those words or expressions have in the Land Transport (Road User) Rule 2004, Land Transport (Offences and Penalties) Regulations 1999 or Section 2(1) of the Land Transport Act 1998.
[8] “Vehicle” is defined in s 2 of the Land Transport Act 1998 as:
A contrivance equipped with wheels, tracks or revolving runners on which it moves or is moved.
[9] Clauses 4.1 and 6 of the bylaws provide:
4. MANAGEMENT OF PARKING, STANDING AND STOPPING
4.1Every person must stop, stand or park any vehicle under their control in compliance with the parking and stopping restrictions, reservations, and prohibitions imposed in accordance with the clauses of this Part of this Bylaw (Part II Parking Control) as indicated by the display of signs and, as appropriate, road markings.
…
6. METERED AREAS, AND PAY AND DISPLAY AREAS
6.1The Council may from time to time by resolution, as defined in Schedule 5 (Metered Parking including pay and display) and Schedule 8 (Time Limited Parking Areas):
(a) designate a road, a parking place, a public place, any piece of land owned or controlled by the Council, or part thereof, to be a metered area or made a pay and display area, either at all times or only during certain specified times;
(b) determine fees and charges payable for the parking of a vehicle in a metered or pay and display area (which may differ between pay and display areas and as to times and to maximum duration of parking);
(c) specify the maximum time allowed for the parking of a vehicle in a metered or pay and display area; or
(d) specify the method of payment and the use of pay and display meters and pay and display areas
6.2Every person who stops, stands or parks a vehicle in a pay and display area must:
(a) pay the prescribed fee provided for in Schedule 11 (Method of Payment and Prescribed Fees and Charges); and
(b) display evidence of payment; and
(c) remove the vehicle prior to expiry of the time for which the fee has been paid, and prior to the maximum permitted and signposted duration of time.
[10] Schedule 5 sets out the areas within Nelson designated as metered parking, including pay and display areas, and any time restrictions that apply in those areas. Schedule 8 sets out areas that are not metered or pay and display areas, but which have time limits that apply to vehicles parked in those areas.
District Court decision
[11] Given Mr Stanton’s resolute intention not to pay the fines incurred or to cease parking his cart in the city centre in breach of the bylaw, the Council sought the additional measure of a limited injunction under s 162 of the Act, to restrain him from parking his cart in the city centre in breach of cls 4 and 6 of the bylaw.
[12] Inter alia, the Council argued the following in support of its application:
... the bylaw is fully enforceable against Mr Stanton, as it is with every other person who parks in the city centre. ... when he stops, stands or parks [his cart] in either a metered parking space or in a space subject to time restrictions, then he must pay the appropriate fee or observe the appropriate time restriction.
... the limited injunction in the terms sought will not encroach on any of
Mr Stanton’s rights under the NZBORA. ...
... the injunction will not prevent Mr Stanton from visiting the city centre, from interacting and associating with persons in that area, or even from parking his cart in that area. The only constraint that Mr Stanton will be subject to is that he may not park his cart in the central city in breach of the parking bylaw.
... this restriction will not be particular to Mr Stanton ... this is an entirely justifiable restriction that applies to any person who parks any vehicle in the central city.
... an injunction is necessary because Mr Stanton has demonstrated, unequivocally and over a considerable period of time, that he will not comply with the parking bylaw when parking his cart in the central city. ... the repeated issuing of infringement notices has failed to deter Mr Stanton from breaching the bylaw, and he is now (and Mr Stanton does not dispute) both openly defiant in his stated refusal to comply with the parking bylaw in the future and equally defiant in his refusal to pay any infringement charges, or indeed to comply with any sentence a Court may impose.
the definition of a vehicle and to the New Zealand Bill of Rights Act 1990 (NZBORA)3 arguments that were advanced, and as set out below, are in my view unremarkable and unassailable. It is the utility of granting injunctive relief and the balance of convenience that requires discussion.
The grounds on which injunctive relief was granted by the Judge
(i)Mr Stanton’s cart falls well within the ambit of the definition of a vehicle as set out in cl 3.1 of the bylaw. The rules as set out in sch 5, and despite the use of the word “car”, apply to all vehicles, including Mr Stanton’s cart.
(ii)The parking bylaw does not breach Mr Stanton’s rights to freedom of expression, freedom of association or freedom of movement as guaranteed under the NZBORA. Personal inconvenience does not equate with a
restriction on freedom,4 because:
Mr Stanton’s right to freedom of expression is not restricted by the bylaw.5 The act of parking his cart in breach of the bylaw is not expressive behaviour and, even if it is, the bylaw does not prevent him from freely expressing himself by parking his cart. He is simply
constrained from parking for longer than the prescribed time limits; or
from parking without paying to do so.
Parking his cart for longer than the permitted time, or without payment, does not engage the right to freedom of association.6 Mr Stanton is not parking his cart in this way in order to join in a particular association. Even if the social interaction with passersby does qualify as association,
the bylaw does not restrict Mr Stanton from this activity. He is simply
3 New Zealand Bill of Rights Act 1990, ss 14, 17 and 18.
4 WATCH (Waikato Against Toxic and Chemical Hazards) Inc v Attorney-General HC Hamilton
CIV-2003-41901265, 29 October 2003 at [73].
5 Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 at [114]; Thompson v Police[2012] NZHC 2234, [2013] 1 NZLR 848 at [81; Wadsworth v Auckland Council [2013] NZHC 413, [2013] NZAR 430 at [36].
6 Brookers Human Rights Law (online looseleaf ed, Brookers) at [BOR17.01], [BOR17.05].
constrained from parking his cart for longer than the prescribed time
limits, or from parking without paying to do so.
Mr Stanton’s right to freedom of movement is not restricted by the bylaw.7 He is still free to move in, out and around Nelson City. He is simply constrained from parking his cart for longer than the prescribed
time limits, or without paying to do so.
(iii)The act of parking without payment or for longer than the allowed time does not take on the quality of personal expression, association or movement, unlike the protesters who occupied Aotea Square in Wadsworth v Auckland
Council.8
There will be no chilling effect on his future rights of personal expression, association or movement. Unlike the occupiers in Wadsworth, Mr Stanton is not engaging in protest, or expressing any
opinions, or imparting any information while he is parked in Nelson.
It is not the Council’s responsibility to ensure that Mr Stanton’s belongings are kept safe. Mr Stanton is simply constrained from parking his cart for longer than the prescribed time limits, or from parking
without paying to do so.
(iv) Even if Mr Stanton’s rights under NZBORA were limited by the bylaw, the
limits are reasonable and justified in a free and democratic society,9 because:
The limits prescribed by the bylaw are rationally connected to the objective of regulating the use of public parking spaces to enable all members of the public to make fair use of the City’s parking spaces and
to ensure any one space is not monopolised.
7 At [BOR18.01]; Watch (Waikato Against Toxic and Chemical Hazards) Inc v Attorney-General, above n 5, at [73]; Stanaway v Police AP33/02, 16 August 2002 (HC) at [18].
8 Wadsworth v Auckland Council [2013] NZHC 413.
9 New Zealand Bill of Rights Act 1990, s 5; Wadsworth v Auckland Council [2013] NZHC 413, [2013] NZAR 430 at [46]; Oakes v R [1986] 1 SCR 103; (1986) 26 DLR (4th) 200 (SCC) at
105-106; Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [104] per Tipping J.
without paying the prescribed fee and/or for parking longer than the allocated times.
The bylaw sets reasonable and proportionate limits on how and when the parking spaces may be used as any person is able to use the parking
spaces within the City.
(v)Enforcing the bylaw does not amount to disproportionately severe treatment of Mr Stanton and does not breach his s 9 NZBORA right.10 All members of the public are subject to the bylaw and all members of the public may receive infringement notices if they breach the bylaw. The relevant “treatment or punishment” inflicted on Mr Stanton is the issuing of infringement notices and fines and does not amount to unreasonable and disproportionate
treatment, let alone severe treatment. As with Mr Ngeru (a homeless alcoholic) in Ngeru v Police, Mr Stanton’s lifestyle is chosen and he could take steps to avoid liability.11
The determination of the District Court
[14] In determining the injunction should be granted, Judge Tompkins expressly found:
[65] ... Mr Stanton has continually and deliberately breached the bylaw over a significant period of time. He continues to breach the bylaw. He refuses to acknowledge that the bylaw applies to him. To date, other enforcement methods have made no impact on his behaviour.
[66] Nevertheless, the terms of any injunction should be carefully considered. In Wadsworth v Auckland Council the High Court held that an injunction, in these kinds of cases, should focus on stopping the continuation of an existing breach, not restraining the person from “committing breaches” of the bylaw. ...
[68] ... the terms of the injunction sought are reasonable and go only as far as is necessary. The Council seek an injunction that only applies within
10 Brookers Human Rights Law, above n 7, at [BOR9.01]; Ngeru v Police HC Wellington
CRI-2006-485-76, 17 November 2006 at [15],
11 Ngeru v Police HC Wellington CRI-2006-485-76, 17 November 2006 at [15].
the city centre. Secondly, the Council seeks an injunction that relates only to
Mr Stanton parking his cart in breach of cls 4 and 6 of the bylaw.
[69] If Mr Stanton were to, for example, park a motorised car, van, motorbike or truck, apart from his cart, in the future in breach of the bylaw, he would not be in breach of the injunction as sought. It is the current and persistent parking of his cart in breach of cls 4 and 6 of the bylaw that are the sole targeted behaviours. This is accurately and fairly reflected in the limited terms of the injunction sought by the Council.
The terms of the injunction
[15] The order as made by Judge Tompkins specifies:
That an injunction be granted under section 162 of the Local Government Act 2002 restraining the defendant from parking his horse cart and trailer in any part of the Nelson Central Business District (shown as the hatched area on the attached map marked A) in breach of the parking and stopping restrictions set out at clauses 4 and 6 of Nelson City Council Parking and Vehicle Control Bylaw 2011, as modified by the parking dispensation contained in the Council’s resolution dated 26 June 2014 (and any subsequent resolution).
This injunction shall remain in force unless discharged by further order of the Court.
Legal principles governing this appeal
[16] The appeal is brought by way of s 72 of the District Courts Act 1947 and thus is by way of rehearing.12 Section 219 of the Act provides that if a party brings an appeal under Part 5 of the District Courts Act 1947, the decision of the High Court on appeal is final.
[17] The High Court may reach its own conclusion on the merits of the case and may, if appropriate, substitute its own decision for that of the District Court.13
[18] As in the District Court the onus of proof for an injunction is on the balance of probabilities, having regard to the gravity of the consequences. Where established, a Court should issue the injunction unless special circumstances apply or
the issue should be delayed in the interests of justice.14
12 District Courts Act 1947, s 75.
13 Section 76; N v N (1999) 18 FRNZ 124.
14 Taranaki County Council v Hammond [1988] DCR 109; O’Sullivan v Mt Albert Borough [1968] NZLR 1099 (CA).
Discussion
[19] There are a number of problematic aspects in granting the injunction as sought and I am not persuaded that on the balance of probabilities an injunction is required or appropriate.
[20] First, there is duplicity: the essence of the injunction being to restrain Mr Stanton from actions already governed by law. The laws in question (in this case bylaws) apply to all without exception and are in full force and effect. They provide a complete framework for due process in the event of infringement. Due process has already followed the event of Mr Stanton’s multiple infringements. His failures to comply have resulted in the issue of infringement notices; these have been followed by enforcement procedures which have resulted in Court orders; the breach of those Court orders has been followed by prosecution and Mr Stanton is now due to appear in Court on 12 December 2014 for sentence. In referring to the duplicitous nature of the injunctive relief as granted I do not overlook the provisions of s 162(2)(b) and (c) of the Local Government Act.
[21] Second, the nature of the breach or breaches sought to be restrained is itself problematic. It concerns future events that have yet to occur, each of which involves a separate, unrelated act. While any distinction between a one-off offence and a continuing breach has been removed in s 162, and there is force in Mr Ironside’s argument that the repetitive nature of Mr Stanton’s infringements could be regarded as a continuing course of conduct, the type of breach or offence to which s 162 is directed does not readily lend itself to the conduct targeted in this case. Rather, in terms of the case law, the type of activity contemplated is an ongoing breach or nuisance, such as the erection of structures or the discharge of a substance from a property, or some similar type of breach of a scale that merits the additional measure
of injunctive relief in addition to other proceedings, such as prosecution.15
[22] The third aspect is an inconsistency of approach by the Council. This was reflected in Judge Tompkins’ observation at paragraph [69] of his judgment; namely,
15 This distinction was emphasised by Ellis J in Wadsworth at [81]: “… the terms of the orders sought and granted restrained the protestors from “committing breaches of” the relevant clauses in the Bylaw. On its face, therefore, the order restrains not only existing breach … but also any future breach by any of the protestors of any of those clauses”.
that the injunction particularises only one mode of transport in Mr Stanton’s case, which is his cart. The inconsistency is evident in Judge Tompkins further observation that, “if Mr Stanton were to, for example, park a motorised car, van, motorbike or truck, apart from his cart, in the future in breach of the bylaw, he would not be in breach of the injunction as sought. It is the current and persistent parking of his cart in breach of cls 4 and 6 of the bylaw that are the sole targeted behaviours”. This particularisation indicates that the true target of the injunction is not simply Mr Stanton’s flagrant disregard for the bylaws but the bringing of the horse and cart into the City centre and parking it. The Council’s concern is therefore not solely the repetitive infringements of its bylaws but a possible antipathy towards Mr Stanton and his horse and cart.
[23] The fourth aspect is utility. The injunction has been referred to as a shortcut for the Council in dealing with Mr Stanton’s infringements of its bylaws. However, nothing has been put before the Court, so far as I can discern, to indicate or establish what expedition of process or other useful purpose the granting of an injunction might fulfil, that is not already fulfilled by due process. If Mr Stanton continues to park his cart in breach of the parking bylaws on future occasions and is also in breach of the injunction in doing so, the immediate remedy will still be to issue an infringement notice in order to provide evidence that the injunction has been breached. What would presumably then follow would be contempt proceedings to bring Mr Stanton before the Court. There may be a double jeopardy aspect to this: there may not be. Either way, I am unconvinced it will see Mr Stanton imprisoned by a shorter route and there seems little or no utility in embarking on a more complicated procedural pathway, when there is in any event a tailor made process already available.
[24] There is an additional overlay of futility, in that there is no historical basis on which to assume Mr Stanton will be more amenable to restraint by means of an injunction than he has hitherto demonstrated himself to be under the fines enforcement procedure.
Conclusion
[25] The appeal is granted. The injunction is quashed.
Goddard J
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