Wellington City Council v McBride HC Wellington CRI-2007-485-33
[2007] NZHC 2025
•22 August 2007
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2007-485-33
UNDER section 107 of the Summary Proceedings
Act 1957
IN THE MATTER OF an appeal from a determination of the
District Court at Wellington
BETWEEN WELLINGTON CITY COUNCIL Appellant
ANDCORMAC PETER MCBRIDE Respondent
Hearing: 24 July 2007
Appearances: S F Quinn for Appellant
P A McBride for Respondent
Judgment: 22 August 2007
In accordance with r 540(4) I direct the Registrar to endorse this judgment with the delivery time of 2.15pm on the 22nd day of August 2007.
RESERVED JUDGMENT OF GENDALL J
[1] Mr McBride does not like paying parking meter fees. He has, initially with some success, challenged the right of the City Council to levy parking fees upon his motor vehicle in certain circumstances. This Court’s decision reported as Wellington City Council v McBride [2006] DCR 452 illustrates an earlier challenge, and a claim (ultimately unsuccessful) that a “Pay and Display” parking machine was not a parking meter.
[2] Another contest between the City Council and Mr McBride returns to this
Court in this appeal by case stated pursuant to s107 of the Summary Proceedings Act
WELLINGTON CITY COUNCIL V MCBRIDE HC WN CRI-2007-485-33 22 August 2007
1957. It concerns a decision of the District Court at Wellington which dismissed, and declined to impose penalties on, four parking infringement notices issued against Mr McBride. He contended that a pay and display meter had to be next to the parking space occupied by his car if the Council was to be exempt from providing a separate sign, otherwise required by the Rules.
[3] The issues for determination are set out in the questions asked in the case stated. Essentially they came down to:
• whether parking meters placed at approximately 36 metre intervals are “adjacent to” individual 6 metre long parking spaces, on either side of a particular parking meter;
• was the District Court Judge entitled to determine a factual issue against the informant where there had been submitted an agreed statement of facts which, unbeknown to the parties, may omit to state a fact (capable of otherwise being proved) that the Court regards as necessary for its final determination but, because of its absence, found against the informant.
[4] The four infringement notices were issued on three days in September 2005 (two notices in respect of alleged parking on The Terrace, Wellington) and alleged parking on Aurora Terrace, Wellington. The notices alleged parking offences against the Wellington City Consolidated ByLaws 1991 (clauses 18.6.1, 18.6.2 and
18.13.1) in that Mr McBride caused or allowed his motor vehicle to remain parked while in a “multiple parking meter area”:
(a) did not display a current parking fee receipt ticket in the manner required (three notices);
(b)parked in excess of the maximum meter time as indicated by a notice on the meter, for a period of more than four hours but not more than six hours (one notice).
[5] The agreed statement of facts submitted to the District Court Judge is set out in the case stated which follows at [5]. The Judge held that the pay and display machines were “parking meters” for the purpose of the Land Transport Rule, Traffic Control Devices 2004, following upon the earlier ruling of this Court. But the Judge held that the Council had failed to prove where Mr McBride “actually parked”, and consequently, the four infringement notices were dismissed.
The case stated
[6] This Court is bound to proceed only on the facts and questions in the case stated.
[7] The agreed facts and determination of the Judge are set out, together with the questions for the opinion of this Court, in the case stated from paragraph 3:
“3.1It was admitted (by way of an agreed statement of facts) at the hearing that:
3.1.1The vehicle (registration YW4384) was parked on the roads in question at the times and dates specified in the infringement notices and it was owned, operated and parked there by the defendant.
3.1.2The vehicle either displayed no valid pay and display receipts or was parked more than four hours in the particular area on the dates set out in the infringement notices.
3.1.3The roads in question had pay and display machines installed.
3.1.4Those pay and display machines were placed at intervals of approximately every six parking spaces.
3.1.5Each of those parking spaces were approximately six metres long.
3.1.6There were blue and white ‘P’ signs mounted on the pay and display machines approximately 300mm high by 130mm wide. These signs included details of the parking fees and the maximum time restrictions in that location.
3.1.7Signs were in place beside the road at points of entry into Wellington City which state ‘Metered Parking Begins – check tariff and time restrictions’. Those signs were white with black writing and measure 500mm by 350mm.
3.2 [The Judge] determined that:
3.2.1The offence must relate to breaching either a signed restriction that complies with Rule 12.5(c) and (2) of the Traffic Devices Rule or a meter restriction at or adjacent to each parking space (paragraph 18).
3.2.2As a matter of law, a pay and display machine is a ‘parking meter’ (paragraph 24).
3.2.3Rule 12.5(3) of the Traffic Devices Rule clearly contemplates that metering at or adjacent to each parking space will provide the motorist with the kind of detail of information contemplated by the other signage requirements of Rule 12.5 (paragraph 17).
3.2.4 Whether something is ‘adjacent to’ is a question of fact
(paragraph 29).
3.2.5Whether something is ‘adjacent to’ or not can only be assessed by consideration of the proximity of the two objects (paragraph 29). The fact finder needs to know the physical relationship of the parking space and the pay and display machine (paragraph 30).
3.2.6The agreed statement of facts and associated produced material was inadequate and the informant failed to prove that the pay and display machines were either at or adjacent to where the defendant actually parked. The informant needs to produce hard evidence as to the physical relationship between actual space and the nearest pay and display machines (paragraph 37).
3.3The question for the opinion of the Court is whether [the] decision was erroneous in point of law. In particular:
3.3.1 Whether a pay and display machine at intervals of approximately every six parking spaces is not ‘at or adjacent to each parking space’.
3.3.2Whether the meaning of ‘adjacent to’ was a question of fact, or alternatively, whether the meaning of ‘adjacent to’ is a question of mixed fact and law.
3.3.3Whether evidence that pay and display machines were placed at intervals of approximately every six parking spaces was abundantly inadequate to determine whether the parking meter is at or adjacent to each parking space.
3.3.4Whether photographic evidence before the Court was wrongly used in paragraph 34 of [the] decision to determine facts.
3.3.5 Whether the process followed was correct in law in circumstances where no evidence is called due to reliance on an agreed statement of facts to facilitate legal argument. In particular, in one circumstance a Minute was issued to the
parties because of lack of evidence as to the date of filing of the four notices of hearing. This inadequacy was identified and parties were required to provide evidence and/or submissions on this issue. The Court received a joint memorandum of counsel in response. By contrast, the same process was not applied when it was identified there was a lack of evidence in relation to location of the parking meters to the actual parking space.”
Regulatory provisions
[8] The relevant Bylaw which described the alleged offence in respect of the several notices are:
“18.6.1
No driver of a vehicle shall park that vehicle in a parking meter area controlled by a multiple parking meter without complying with the directions and requirements indicated by any multiple parking meter and relevant notices installed at the area. Compliance will include paying the prescribed fee to cover the period of parking, receiving and displaying a ticket from the multiple parking meter in respect of that payment, or activating a prepaid parking or other payment device approved by Council as the case may be.”
“18.6.2 The driver of a vehicle shall:
…
b.place the ticket authorised in the vehicle to be parked at the multiple parking meter, on the inside of the vehicle’s windscreen closest to the kerb, so that the information is visible to inspection from outside the vehicle
…” “18.13.1
The provisions of the Part 1.11 of this Bylaw notwithstanding, every person commits an offence against this Bylaw, who:
(a) Fails to comply in all respects with any prohibition or restriction or direction or requirement indicated by the lines, domes, areas, markings, parking meters, multiple parking meters, traffic signs, or other signs and notices, laid down, placed, or made, or erected, in or on any road, building, or other area controlled by the Council, pursuant to any provision of this Bylaw, or of any resolutions made thereunder.”
[9] In terms of the Bylaw:
“Multiple Parking Meter means a parking meter which functions in respect of more than one parking space and includes pay and display parking meters.”
[10] A “parking meter” includes single, multiple and pay and display meters. There is no challenge by the respondent to the Judge’s finding that a pay and display machine is a parking meter not only for the purposes of the offence provisions in the Bylaw but also for the purpose of Rule 12.5(3) of the Land Transport Rule, Traffic Control Devices 2004 which came into effect after the Traffic Regulations 1976 ceased to be in force.
[11] The Rule which was crucial to the outcome of the proceedings was Rule
12.5(3) which stated:
“12.5 General requirements for signing parking restrictions
…
12.5(3) A road controlling authority does not have to provide signs to indicate a restriction on parking, or the extent of the restriction, if parking is controlled by parking meters that are located at, or adjacent to, each parking space.”
That Rule mirrored the previous reg 123 of the Traffic Regulations 1976 which provided:
“123 Parking signs –
(1)Every controlling authority which imposes a parking or stopping restriction (other than by a broken yellow line under reg 108) hereof on any road shall provide and maintain appropriate parking signs to indicate the restriction in its extent:
Provided that no sign shall be necessary to indicate parking restrictions or their extent where parking is controlled by parking meters.”
[12] The case in the District Court turned upon the claim by Mr McBride’s counsel that the City Council had to provide signs, in the manner prescribed in the Rules, to indicate a restriction on parking, because the parking was not controlled by the parking meters located at, or adjacent to, the parking space in which the car was parked. There being no such separate sign, it was contended therefore, that the
Council’s failure has meant that any Bylaw provision relating to infringements in that area was inoperable or unenforceable.
[13] The Judge accepted in substance that submission. He based his decision upon the agreed statement of facts, which he said did not meet the requirement on the part of the City Council to provide “hard evidence as to the physical relationship between actual space and the nearest pay and display machine (a ‘parking meter’)”.
[14] The determination by this Court on the questions of law, turns upon those points.
Wellington City Council’s argument
[15] Counsel contended that the meaning of “adjacent” in Rule 12.5(3) had to be interpreted as meaning “lying near to” the relevant parking spaces. At most the distance between meters was approximately 36 metres (6 spaces). So at most they had to be approximately 18 metres (3 spaces) from the nearest meter or (at the least) zero metres. As I later illustrate, they will be 9-15 metres away from any parking space or, if placed at the boundary of two spaces, then 6-12 metres away from any such space.
[16] Counsel argued that the agreed facts met the test of “adjacent”; the requirement by the Judge that there had to be additional evidence before a conviction could be entered, despite the agreed statement of facts of both the Council and Mr McBride, was wrong; and the Judge further erred in referring to, and making use of a photograph (attached to the agreed statement of facts as “an example” of the pay and display machine) because there was no agreement that the photograph was taken on either Aurora Terrace or The Terrace. Counsel claimed that whether pay and display machines were adjacent to relevant parking spaces had to be determined from the agreed statement of facts, that being the evidence, and not from what the Judge deduced from a photograph produced for a different purpose.
[17] Earlier, the Judge raised the issue whether the required infringement notices were filed within the statutory time period. But both parties had agreed that this had been done.
[18] Counsel for the City Council contended that the Judge went behind the agreed statement of facts in finding that evidentiary matters not mentioned in it were fatal to the prosecution and was not entitled to do so. He should have given the City Council the option of re-opening the case, or referred the matter back to the parties for agreement, or alternatively, for evidence to be given that they had already agreed upon the physical location of the meters, or not. At least three alleged offences occurred at different parking spaces.
[19] In the District Court, the case was based upon agreed facts in order to clarify legal issues for the pay and display machines and signage, rather than specific factual issues and the defence tactic was opportunistic and technical. Counsel said that the factual elements were admitted by Mr McBride, it not being disputed that the machines were parking meters, and the agreed statement of facts was what had to be used to determine the essential question whether the machines “were adjacent to a relevant parking space”, within those facts.
[20] Because a Minute had been issued to the parties over the Court’s concern as to the time of filing, the parties were invited to proceed further. Counsel said that the same process should have been applied if the Judge was correct in his view that evidence as to the precise location of the meters and the actual parking spaces relevant had to be proved in respect of each infringement notice.
Mr McBride’s position
[21] Counsel generally supported the Judge’s decision. He said that the issue was not one of law, the location of a meter relative to a particular parking space being solely a factual matter. In any event, he argued that “adjacent to each parking space” was a clear statutory test and that use of the words “adjacent to each” connoted:
one on one relationship between a meter and each car park.
[22] He referred to a number of dictionary definitions of “adjacent”, submitting that the phrase must mean “next to each parking space” and not something more remote. He said that there was no real relationship between each of, approximately six parking spaces of six metres, and a pay and display machine located at every six of such parking spaces.
[23] In summary, counsel for Mr McBride said that the mandatory signage under the Rules was absent as a matter of fact, and because the Council was required, as a matter of law, to place a meter adjacent to each parking space (and not at a distance of approximately 6 parking spaces) and it had not done, then that as a matter of fact and law it had no right to levy fees under its Bylaw for parking in those circumstances.
[24] If those meters are at, or adjacent to, each parking space, signs were not required.
What is “adjacent to”
[25] In its literal meaning “adjacent” means “lying to”, “in the vicinity of”, or perhaps in some circumstances “in the neighbourhood of”. It may also mean “adjoining”. The Court of Appeal in The Mayor, Councillors, and Burgesses of the Borough of Lower Hutt v The Mayor, Councillors, and Citizens of the City of Wellington [1904] 23 NZLR 519 (CA) made certain observations about the word. The Privy Council in upholding the Court of Appeal Judges’ findings, it did so very shortly, (see [1904] AC 773), and said that “adjacent” is not a word of precise and uniform meaning, the degree of proximity required being a question of circumstances.
[26] The remarks of the Court of Appeal Judges remain pertinent and include the following. Stout CJ said at 522:
“’Adjacent’ in its primary meaning,…means ‘lying near’. It has been said that a thing ‘adjacent’ to another may be separated altogether from it by the intervention of some third object, whilst a thing ‘adjoining’ must touch in some part, and a thing ‘contingent’ must touch on one side. Even assuming that ‘adjacent’ does not mean ‘touching’, it must mean ‘close’, or ‘bordering upon’,….”
[27] It is clear, however, that “adjacent” connotes “nearness.” How near is that?
[28] Denniston J said at 525:
“In its wider and more usual meaning ‘adjacent’ has been defined as ‘near to–in the vicinity or neighbourhood of’. Within these limits the application of the word must vary with and depend upon the circumstances of the case….Dealing with a geographical question, we speak of the Channel Islands as adjacent to France, or of Tasmania as adjacent to Australia, although in each case there is a space of many miles between the respective places. It is in every case a question of degree. If it is admitted that actual contiguity is not meant, the question whether one or more local divisions intervene is immaterial. When we have to interpret the word in a statute we have to look at the subject-matter and object of the statute.”
[29] So, in the context of parking restrictions is a parking meter close or adjacent to three parking spaces on either side of it. It might vary slightly depending on where a meter is situated, i.e. opposite one space, or at the interval or dividing line between two spaces.
[30] I do not accept counsel’s argument that adjacent, in this context, means a 1:1 relationship between meter and parking space. The Rule speaks of “located at…each parking space” or “adjacent to…each parking space”. The interpretation argued by counsel for Mr McBride would make the latter words unnecessary. “Adjacent to” in this context must mean “near”, “close” or “neighbouring”, and something more than “at”.
[31] The circumstances upon which the test of “adjacent” is to be applied in this case are those facts, and only those, set out in the case stated and the agreed statement of facts. So, the question must be;
“From the agreed facts, can the conclusion be drawn that meters are adjacent to individual parking spaces as described in those facts?”
[32] While counsel have argued that whether something is “adjacent” or not is a question of fact, and that is what the Judge said, the position is rather different in this case. If the issue was a question of fact dependent upon the evidence then this Court cannot intervene on a case stated. It is well known that in a case stated on a point of law the Court is concerned with the relevant facts as found and contained in the case. The Court may only look at the case stated and the facts as found. In this case it is
the agreed statement of facts by which the parties in this Court are bound. Here the
facts were agreed.
[33] The question what is a matter of fact and what is a matter of law is often difficult but the test is where all material facts are found (or agreed upon), and the issue is whether the facts are such as to bring the case within the proper construction of the provisions of some statutory enactment, then the question is one of law only – Commissioner of Inland Revenue v Walker [1963] NZLR 339, 354 (CA). It may be difficult in determining when inferences from primary facts cease to be come inferences of fact and become inferences of law but even where an appeal is limited to matters of law, a mixed question of law and fact is assailable as a matter of law.
[34] In this case, although the question sought to be answered will depend on the facts as agreed it must ultimately be a question of law as to what the word “adjacent” means in the context of those agreed facts and the provisions of Rule 12.5(3).
What is the proper conclusion to be drawn from the agreed facts – “adjacent”
or not?
[35] With parking parallel to the kerb a parking meter may be situated either directly opposite (“at”) an individual parking space or at the common boundary (between) of any two parking spaces. In any event on the agreed facts the meters are
36 metres apart. Can it be said that any one particular meter is “adjacent to” three parking spaces on either side of it? “Adjacent to” means rather more than “at” and therefore, as a start, each meter is “at” or “adjacent to” three parking spaces, namely the one in front of it and the two on either side. What then of the three parking spaces left in the middle? On the facts as agreed in the District Court, and if Mr McBride’s argument is correct, this would lead to the situation in any group of nine parking spaces, six would not require signage but three in the middle would (or additional meters).
[36] As I earlier indicated at [15] if parking meters are at, in the sense of opposite a parallel parking space, they are also adjacent to the space on either side. The next parking space is thus nine metres from the parking meter with the next being
15 metres away from it. So the distance from the parking meter in that circumstance is 9 metres in respect of two spaces and 15 metres in respect of one space.
[37] The other alternative is where a meter is at the boundary between two spaces so clearly being “at” each of those spaces. The four parking spaces not “at” but between the two of the four would be 6 metres from the parking meter, and the other two would be 12 metres distant. That is the rationale behind what I have said in [15].
[38] The purpose of the Rules are to ensure that those who park in designated spaces are advised of limitations, whether in time or otherwise, on parking there. Notices of restrictions may be on the meters, but if the meters are not “at or adjacent to” the parking spaces then formal notices in the manner prescribed are required. A motorist will be aware if they can see a notice contained on a meter, which is “adjacent” or “lying near” the parking space. Obviously, a meter 200 metres distant would not be able to be seen. But one 6-15 metres away inevitably will be observable. The Rule for signage required to designate zone parking control (Rule 12.4) says that signs, apart from being installed at the entry and exit from the zone, must be provided at distances of not more than 100 metres between any two signs. That tends to suggest the legislation is concerned with the degree of notification that is reasonably required.
[39] That cannot determine this issue because, in terms of Rule 12.5(3), in simple terms a parking meter 100 metres distant from a particular parking space cannot be said to be “adjacent” to it. But two parking meters set at positions approximately
36 metres apart so as to “govern” the parking spaces on either side of those meters, and being only 6-15 metres away must, as a matter of proper interpretation, be “adjacent to” or “nearby”. Naturally, it is a matter of degree and it is not for the Court to say when a distance becomes too great. I am simply required to determine that whether on the agreed facts of this case and in terms of the Rule the parking meters were adjacent to the spaces on each side of it. Any motorist parking within that group of parking spaces encompassed by, or purportedly to be governed by the two parking meters, at no more than 15 metres apart, could be expected to have seen the meters. As a matter of law, based upon the agreed statement of facts the meters
were in the vicinity of (adjacent) to the parking spaces on either side so as to not require, on those facts, that signs be erected.
[40] Any other conclusion would lead to the illogical situation of two-thirds of parking spaces within any area of 54 metres (6 metres x 9) in length being governed by meters whereas one-third would not, so that the latter would require individual signs or meters to be erected at are adjacent to them. The position would be different if the meters were a long way apart but that was not the agreed statement of facts. It is not something upon which this Court needs to make any ruling for the purpose of the case stated.
[41] The first three questions said to be questions of law stated in paragraph 3.3 need some refining although, as I have said, the answer to question 3.3.2 is that the meaning has a question of mixed facts and law.
[42] The use to which the Court used the photographic evidence so as to reach conclusions of fact is not something upon which this Court will rule on a case stated. The Judge says that the photographs were far from instructive and highlighted the inadequacy of the agreed statement of facts. If he was correct then, as will be seen, the proper procedure was to seek further evidence or agreed facts from the parties. The Council say that the Judge, however, mistakenly used the photographs to reach findings of fact because they were presented as agreed examples only and not evidence of the actual sites and if that is what the Judge did then he was lulled into mistake.
[43] Lastly, the issue is raised whether the correct process was followed by the Judge simply dismissing the infringement notices on the basis that he considered there was an absence of proof of an essential fact. Where a Court is invited to determine an outcome on an agreed statement of facts – that is, on whether the proper application of the law required a finding that an offence had occurred – a party ought not to be able to take opportunistic advantage of the absence of a record of a fact, which may easily be capable of proof. If, where there is an agreed statement of facts submitted and the Court asked to rule upon them, the Court should require additional facts to determine the question asked of it, then it is proper for the
parties to be invited to submit either further agreed facts to deal with the issue, or a hearing to be convened so that that fact can be proved, if a party is able to do so.
[44] There is a distinct difference between a case where parties proceed on an agreed statement of facts seeking the Court’s legal determination from those facts, and a case where an informant is required to prove every element of the offence through the presentation of oral and other evidence. Once a party submits to an agreed statement of facts, it should not be able to take the opportunity of avoiding a Court’s ruling by contending that an additional fact had not been proven. It may not have been agreed upon, but in those circumstances it is not the proper determination of the issues to rule against a party who may well be able to prove a fact thought to be by the Court to be essential, and to which the parties had not originally turned their minds.
[45] So, just as the Court referred the question of time limitation back to the parties for further advice, if the Judge thought it necessary to have further facts before him in order to properly determine the issue, then the correct approach would have been to reconvene a hearing.
[46] But as is apparent from the Court’s conclusions that as a matter of law on the agreed statement of facts the meters were “adjacent” to the parking spaces, it was not necessary for further evidence to have been adduced.
Conclusion
[47] As I have said the questions asked in the case stated need refining because some are not appropriate for determination as phrased, and are inappropriate for determination as of points of law. Accordingly, I rephrase Question 3.3.1 as follows:
“Whether two pay and display machines at intervals of approximately
36 metres are ‘at or adjacent’ to each of the six parking spaces situated between the machines?”
The answer is: Yes. [48] Question 3.3.2:
“Is the meaning of ‘adjacent to’ where there is an agreed statement of facts a question of mixed fact and law?”
The answer to this question is therefore: Yes.
[49] Question 3.3.3 I do not propose to answer. It is imprecisely framed and dependent on an assessment of “evidence” when the case as presented in the District Court was upon agreed facts rather than “evidence” from which the facts had to be ascertained.
[50] Questions 3.3.4 and 3.3.5 I do not propose to formally answer. They have generally been discussed in the reasons above but an answer is not necessary given the essential finding on the point of law in 3.3.1.
[51] For those reasons the appeal by the City Council is allowed.
What should be the outcome?
[52] Under s112 of the Summary Proceedings Act 1957 this Court, upon determination of the questions of law in a case stated appeal may reverse, confirm or amend a determination or remit the matter back to the District Court with this Court’s opinion, or it may exercise any power conferred by s201 of the Act or make any other order as it thinks fit.
[53] In proceedings for an infringement offence the Court cannot “convict” a defendant (s78A). If the offence is found to be proved a defendant is simply ordered to pay a penalty/fee and costs. These infringements occurred almost two years ago. The parking infringement fees applicable are not recorded in the case stated but from the District Court file they appear to be $40 for three notices and $42 for one notice
– that is, a total of $162.00. The proceedings have already taken a considerable amount of time of the District Court and been the subject of a reserved decision there, as well as a reserved decision in this Court. In the earlier case stated appeal involving the City Council and Mr McBride, notwithstanding finding in favour of the City Council on the matter of law, I declined to remit the proceedings back to the District Court for a review based upon this Court’s opinion. The reason was that the
cost and inconvenience concerned in the administration of justice, as well as to the parties, did not warrant a rehearing.
[54] For the amount of the fees involved viewed as against the time and cost to the Court system, I am not prepared to direct that the infringement notices be subject of a rehearing or that the matter be remitted back to the District Court. The opinion of this Court on the primary point of law is clear and should apply to future proceedings if the agreed facts are the same.
[55] Mr McBride has now obtained a benevolent outcome twice but might reflect upon the unlikelihood of that occurring again if, as a matter of law, the infringement offences have occurred.
[56] The question of costs on this case stated is reserved and if any order is sought by the City Council the parties may submit memoranda.
………………………………..
J W Gendall J
Solicitors:
DLA Phillips Fox, Wellington for Appellant
McBride Davenport James, Wellington for Respondent
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