IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-000047 [2013] NZHC 1841

BETWEEN	MURRAY JOHN FRIAR Appellant

AND	WELLINGTON CITY COUNCIL Respondent

Hearing:	23 July 2013

Counsel:	Appellant in person
M K Booth for Respondent

Judgment:	25 July 2013

JUDGMENT OF COLLINS J

Introduction

[1]       The question I have to answer is:

Was Mr Friar wrongly found to have infringed r 6.3(2) of the Land Transport
(Road User) Rule 2004 (Road User Rule) when he parked his car within
6 metres of an intersection?

Context

[2]       On  24  January  2012  Mr  Friar  parked  his  car  on  the  south  side  of Upland Road where Plunket Street and Upland Road intersect.  The intersection is a “T-intersection”. There is no dispute Mr Friar parked his vehicle:

(1)	immediately before  a  30  minute  parking  sign.	The  parking  sign regulated parking immediately beyond where Mr Friar parked;

FRIAR v WELLINGTON CITY COUNCIL [2013] NZHC 1841 [25 July 2013]

(2)       within   6   metres   of   the   T-intersection   of   Plunket   Street   and Upland Road as measured by a parking warden using a tape measure; and

(3)       within a white line that ran parallel to the kerb approximately 2-2.5 metres from the kerb.

[3]       There is a broken yellow line on Plunket Street which prohibits parking. That broken  yellow  line  proceeds  towards  the  intersection  of  Plunket  Street  with Upland Road.   The broken yellow line then becomes an unbroken white line that starts on Plunket Street and progresses around the corner onto Upland Road and includes the area where Mr Friar parked.

Road User Rule

[4]       Rule 6.3(2) of the Road User Rule provides:

6.3	Parking close to corners, bends, etc

...

(2)        A driver must not stop, stand, or park a vehicle on any part of a road, whether attended or unattended, within an intersection or within 6 m of an intersection unless the stopping, standing, or parking is authorised by signs or markings maintained by the road controlling authority. (emphasis added)

Traffic control devices

[5]       The Land Transport Rule:   Traffic Control Devices 2004 (Traffic Control Devices) prescribes road signs and road markings.  The Council is obliged to comply with these devices.1

[6]       Rule 12.2(1) of the Traffic Control Devices says that a prohibition upon stopping may be indicated by the road controlling authority marking the road with a
broken yellow line.

1	Land Transport Rule: Traffic Control Devices 2004, r 13.1.

Traffic control signs and road marking

[7]       Mr  Friar  produced  extracts  from  the  Traffic  Control  Devices  Manual published by the New Zealand Transport Agency (the manual).   The manual is a policy document that contains recommendations for road controlling authorities such as the Council.  Part 13 of the manual relates to parking control and describes traffic signs and road markings relevant to parking.  The following portions of the manual are relevant:

(1)	Part 3.3.2 refers to intersections and says:

Parking within 6 m of an intersection can reduce visibility for other road users and is not permitted under subclause 6.3(2) of the Road User Rule ... while there is no legal requirement to provide road markings at such locations, [Road Controlling Authorities] may provide them where appropriate to help reinforce the need for vehicles to be kept clear of such locations. (emphasis added)

(The manual then refers to a photograph showing broken yellow lines running parallel to the kerb through an intersection  similar to the intersection in this case).

(2)	Table 6.5 describes signs used to delineate restricted parking times

such as     which was the type of sign placed by the
Council in front of where Mr Friar parked.2

(3)       Part 6.2 includes a section on parallel parking and says that parallel parking in areas of low demand “may be marked by a white edge line a distance 2-2.5 metres from the kerb”.  (emphasis added)

Mr Friar’s case

[8]       Mr Friar’s case is that the Council has misled those who wish to park in the

area in question.  He says that when the Council painted a white line 2-2.5 metres

2	See also Land Transport Rule: Traffic Control Devices 2004, r 12.4(10)-(12) which allows time- restricted parking to be designated by signs.

from and parallel to the kerb it created confusion because users of the road could reasonably regard the white line as designating an area that is exempted from r 6.3.2 of the Road User Rule (which I have emphasised in paragraph [4] of this judgment).

[9]       Mr Friar, who presented his case in the best traditions of Albert Haddock3 submitted that the Council’s conduct in painting the white line 2-2.5 metres from the kerb where he parked is contrary to the rule of law.  Mr Friar based this submission on the proposition that motorists in Wellington are entitled to not be misled by the Council’s indiscriminate use of road markings.

Mr Friar’s prior experiences

[10]     Mr Friar has come before the courts on two previous occasions for parking in exactly the same place as he did on 24 January 2012.

[11]     In the first case, which came before the High Court in 2009, the Council did

not contest to Mr Friar’s appeal.

[12]     Last year Mr Friar appeared before MacKenzie J and advanced an argument that the white line authorised parking in the place where Mr Friar parked.

[13]     MacKenzie J said:4

The sole issue in this appeal is whether parking in the location where the appellant’s vehicle was parked is authorised by signs or markings maintained by the respondent.  The line relied upon by the appellant does not have that effect.  The exact status of the line is not entirely clear from the evidence.  I consider that it is clear that it does not authorise parking.  The presence of that line is not an indication that the prohibition in r 6.3(2) does not apply.  It was not necessary for the Council to extend the broken yellow line around the  intersection  to  prohibit  parking,  because  parking  was  prohibited  by r 6.3(2).   There is no other signage which indicates parking is permitted. The location of the P30 sign was a further indication that parking was not authorised on the intersection.  ...

3	Sir Allan Herbert More Uncommon Law (Methuen, London, 1982).
4	Friar v Wellington City Council [2012] NZHC 1588 at [7].

Analysis

Status of the white line

[14]	The narrow issue in this case is whether the white line 2-2.5 metres from and parallel to the kerb is a road marking which authorises the parking of vehicles within
6 metres of the intersection of Plunket Street and Upland Road.

[15]     In my judgement the white line in question does not create an exception to the  prohibition  against  parking  within  6  metres  of  an  intersection  contained  in r 6.3(2) of the Road User Rule.  My reasons for reaching this conclusion are:

(1)       The white line in question is in fact an edge line that is defined in Table A of the manual to mean “a broken or continuous white line marking ... used to indicate the far left or far right side of the roadway”.5    In this case, the white line is used to define the far left margin   of   the   roadway   for   motorists   travelling   through   the intersection.  I immediately accept the white line has been positioned
in this case far further from the kerb than is normally the case for white lines that mark the left margin of the roadway.  That has been done to ensure vehicles can safely negotiate the T-intersection.

(2)       The position of the     sign clearly indicates that only restricted parking is permitted in this area, and only within the areas

designated by the restricted parking sign.

Is there a rule of law issue in this case?

[16]     The broader question raised by this appeal is whether the Council’s conduct

undermines the rule of law.

5	See also Land Transport Rule: Traffic Control Devices 2004, r 7.5.

[17]     Administrative law provides legal certainty through the concept of legitimate expectation.   Thus, individuals may in some circumstances have a legitimate expectation that those who exercise public power will do so consistently with the way they have led people to believe they will act.  The Courts will recognise this legitimate expectation because people should be able to plan their activities in the expectation that public decision-makers will exercise their powers consistently and
not indiscriminately.6

[18]     Some legal philosophers would have sympathy for Mr Friar’s position.  For example, Joseph Raz believes legal certainty is an ingredient of the rule of law.  He has said:7

[The rule of law] has two aspects:  (1) that people should be ruled by the law and obey it;  and (2) that the law should be such that people will be able to be guided by it ... A person conforms with the law to the extent that he does not break the law.   But he obeys the law only if part of his reason for conforming is his knowledge of the law.   Therefore, if the law is to be obeyed, it must be capable of guiding the behaviour of its subjects.  It must be such that they can find out what it is and act on it.

[19]     In this case it is arguable that the Council has painted the white line at the intersection in a way that is not consistent with other ways in which road markings are used to prohibit parking.

[20]     During the course of the hearing I asked Mr Booth who appeared for the

Council if there was another place in Wellington where a white line has been painted

2-2.5 metres parallel to the kerb and where parking is prohibited.  Mr Booth did not think there was another example of the Council using a white line marking in the way that it has been used in this case.  Mr Booth acknowledged that any confusion could be easily addressed by the Council painting broken yellow lines on the inside
of the white line.8

[21]     While the Council is justified in believing Mr Friar is a repeat offender, some responsibility also needs to be accepted by the Council for its failure to use road

6	Paul Craig Administrative Law (7th  ed, Sweet & Maxwell, London, 2012) at 22-003;   Harry
Woolf and others De Smith’s Judicial Review (7th ed, Sweet & Maxwell, London, 2013) at 1028-
1029.
7	Joseph Raz “The Rule of Law and its Virtue” (1977) 93 LQR 195 AT 198.
8	Land Transport Rule: Traffic Control Devices 2004, r 12.2(1).

markings that are very clear and not arguably indiscriminate.  Although in this case I have held that the continuous white line indicates an edge line, and therefore does not displace the general prohibition on parking within 6 metres of an intersection in r 6.3(2) of the Road User Rule, it is nevertheless a source of confusion.   This is especially so when the broken yellow line on Plunket Street, which clearly prohibits parking, is contiguous with the white line.

[22]     As I have found that the prohibition in r 6.3(2) applies in this case, I uphold the Justices’ finding that Mr Friar breached the Road User Rule.   However, I will quash the penalty that was imposed.   In doing so I urge the Council to avoid any further litigation of this kind by painting a broken yellow line within the white line at the intersection of Upland Road and Plunket Street.

Conclusion

[23]     The appeal is allowed in part.  The penalty imposed on Mr Friar is quashed, however, the answer to the question posed in paragraph [1] is that the Justices of the Peace were correct when they found Mr Friar infringed r 6.3.(2) of the Road User
Rule.

D B Collins J

Solicitors:
DLA Phillips Fox, Wellington for Respondent