Boensch v Parramatta City Council [2012] NSWSC 836 | Case summary

Part 4 Div 1 of the Road Transport Act 31Part 4 Div 1 of the Road Transport Act, as in force at the relevant time, provided in s 51 that a person had appropriate authority to install a "prescribed traffic control device" if the person was authorised in writing by the Authority (defined in the Dictionary to the Act to mean the RTA) to install the device. 32Clause 131 of the Road Transport (Safety and Traffic Management) Regulation 1999 relevantly provides that a prescribed traffic control device includes: ...any traffic control device of a kind mentioned in the Road Rules 2008 that has effect for the Rules under rule 315 of the Rules. 33Relevantly, "No Stopping" signs (Rule 167) and permissive parking signs (Rule 204) are devices that are mentioned in the Road Rules 2008. Rule 11(2)) and Rule 315 provide that a traffic control device has effect for the purposes of the Road Rules if the device is on a road and if the device complies substantially with the Rules. 34It is clear (and the plaintiff did not submit otherwise) that the parking restriction signs installed in the Laneway are "prescribed traffic control devices" within the meaning of s 50 of the Road Transport Act and that the signs comply with the Road Rules. 35Section 52 of the Road Transport Act provides: 52 Unauthorised prescribed traffic control devices (1) A person must not, without appropriate authority: (a) install or display a prescribed traffic control device on, above or near a road or road related area, or (b) interfere with, alter or remove any prescribed traffic control device installed or displayed on, above or near a road or road related area. Maximum penalty: 20 penalty units. (2) A person must not install or display on, above or near a road or road related area any sign, signal, marking, structure or other device that might reasonably be mistaken to be a prescribed traffic control device. Maximum penalty: 20 penalty units. 36Council relied upon s 51(b) of the Road Transport Act as the source of its power to install the parking restriction signs. That section provides: For the purposes of this Division, a person has appropriate authority to install or display (or to interfere with, alter or remove) a prescribed traffic control device if: (a) ... (b) the person is otherwise authorised in writing by the Authority to install or display (or to interfere with, alter or remove) the device. 37The written authorisation relied upon by the Council was the Delegation under s 50 of the Transport Administration Act on 23 February 2009. 38Schedules 1 and 3 to the Delegation, when read together, delegated to the Council the authority to exercise all of the functions of the RTA under Division 1 of Part 4 of the Road Transport Act, including, relevantly, the authority to install the parking restriction signs under s 51. (I note that s 51 also includes the authority to "display" the parking restriction signs although the power is cast disjunctively and not conjunctively with the authority to install. No submissions were directed to this issue and whether it informs the resolution of the issues in this case.) 39Since s 51(b) has the effect that a person has authority to install a prescribed traffic control device if the person is authorised in writing by the RTA to install the device, the Council submitted that it necessarily follows that one of the functions conferred on the Council by the Delegation was the provision of such written authorisation to its officers to install the signs. The Council submitted that Clause 11 of the Schedule to the Delegation provides further support for that construction. That Clause provides as follows: Before installing or displaying a prescribed traffic control device, a council and its sub-delegate must authorise installation or display (or interference with, alteration or removal) of the device in writing in accordance with section 51 of the Road Transport (Safety and Traffic Management) Act 1999. 40The Council's ultimate submission was that since the Council officers who installed the parking signs were in receipt of written authorisation from the Council pursuant to the Delegation (and as required under s 51(b) of the Road Transport Act), it follows that the plaintiff's claim that the signs were installed without appropriate legislative power must fail. 41A secondary submission advanced by the Council concerned the operation of s 115(2)(g) of the Roads Act. As noted at [9] above, s 115(1) provides for a general power in the RTA to regulate traffic on a public road by means of notices conspicuously displayed on or adjacent to the public road, while s 115(2) operates to limit that power to one of the purposes specified in s 115(2)(a)-(g) where a roads authority other than the RTA is involved in the regulation of traffic by these means. The Council submitted that the parking restriction signs were notices conspicuously displayed on the Laneway, thereby satisfying s 115(1), and that s 115(2)(g) authorised it to regulate traffic by these notices because it was for a "purpose for which the roads authority is authorised or required by law under this or any other Act or law to regulate traffic", in this case the installation of prescribed traffic devices (the parking restriction signs) under Part 4 of the Road Transport Act. The Council submitted that even if the installation of the parking signs under Part 4 of the Road Transport Act "regulated" traffic on the Laneway as the plaintiff contended, the legal authority conferred under s 115(2)(g) of the Roads Act relieved it of having to comply with the procedural obligations under s 116 before the signs were erected because s 116 only applies where the action taken to regulate traffic is for a purpose not contemplated under s 115. 42The plaintiff submitted that the functions of the RTA delegated to the Council under Schedule 3 of the Delegation simply put it in a position to authorise the installation of the parking restriction signs (as a delegate of the RTA) as distinct from it being a source of power to install the signs. The plaintiff submitted that the general power to regulate traffic is provided for exclusively in Part 8 of the Roads Act and that the Council remained subject to the obligation to comply with the procedural steps in s 116 of the Roads Act because the signs (the Council was authorised to install) nevertheless operated to regulate traffic under s 114. The Council emphasised that there was nothing in the Road Transport Act which displaced the need for the Council, as a roads authority under Part 8 of the Roads Act, to comply strictly with the procedural steps in s 116 of the Roads Act when exercising the power to regulate traffic. 43The plaintiff further submitted that the Council cannot invoke s 115(2)(g) as a source of power to regulate traffic in the Laneway as that section is confined to regulating traffic by means of "barriers or notices" and the parking restriction signs are neither. Although it was conceded that the signs are "prescribed traffic control devices" within the meaning of s 50 of the Road Transport Act, being "traffic signs...to direct or warn traffic on, entering or leaving a road", they cannot at the same time, so it was submitted, be notices for the purposes of regulating traffic under s 115 of the Roads Act. 44There is some force in that submission. Although "notices" are not defined in the Roads Act, when "notices" is read in conjunction with "barriers" (both to be "conspicuously displayed on or adjacent to the public road") as the particular means by which traffic might be regulated by a roads authority under s 115(1), and when each of the specified purposes under s 115(2) (a)-(f) are separately considered, and it is clear that they are each directed to be used for a temporary purpose as distinct from addressing a permanent set of circumstances or state of affairs only (g) is cast in general terms, namely: for a purpose for which the roads authority is authorised or required, by or under this or any other Act or law, to regulate traffic. 45If a "notice" conspicuously displayed as provided for in s 115(1) includes a parking restriction sign, as Austin J observed in Davies at [27], if the roads authority (in this case the Council) is to rely upon subparagraph (g) so as to obviate the need to comply with the procedural requirements in s 116, it must be able to point to the exercise of some legal authority to "regulate" traffic other than that in s 115 itself. This necessarily reverts to a consideration of the Council's reliance on Part 4 Div 1 of the Road Transport Act as a source of power to regulate traffic in the Laneway. It also involves a consideration of the plaintiff's submission that there is a distinction between the "function" of installing the subject parking restriction signs as prescribed traffic control devices and the "power" to install them if they are to "regulate" traffic under the Road Transport Act. So far as concerns that submission, I am satisfied that in the circumstances of this case the distinction is an arid one. If the Council had delegated to it the function of authorising the installation of the parking restriction signs such that when installed under Council's authority the installation was lawful (that is, not in breach of s 52) the signs must also be taken to be effective for their designated purpose of directing traffic on a road not to stop and directing that parking is permitted for a restricted time only. 46In my view, while the Council's reliance on s 115(2)(g) is perhaps tenuous, it is not for that reason untenable. 47The plaintiff submitted that if s 115(2)(g) was to be relied upon as a source of power to regulate traffic in the Laneway through the Council's delegated function to authorise the installation of the signs as prescribed traffic control devices (which was not conceded) the exercise of the power was conditioned by the requirement that he was entitled to be afforded procedural fairness and that he was not afforded his full rights in that regard because he was not invited to address the Traffic Committee as expressly contemplated in 5.3.4 of the Guidelines (extracted in [12] above) - (see Bryden v Minister for Lands [2011] NSWSC 945 at [28] per Pembroke J). 48Although the Guidelines contemplate that an interested stakeholder may address a committee meeting, it is abundantly clear that is entirely at the discretion of the committee since the primary responsibility of determining the merits of any proposal from the perspective of the public falls to the Council and, accordingly, that views of residents should be taken into account by the Council rather than at the committee stage. 49The plaintiff's counsel submitted that his client should have been invited to address the Traffic Committee. He also made clear in oral submissions that this was the high water mark of that aspect of the claim for relief that the plaintiff was denied procedural fairness. The expressly limited form of this submission was a frank acknowledgement of the fact that the plaintiff had been afforded and exercised the opportunity to seek to persuade the Council of the need for him to have continued and unregulated access to the Laneway as reflected in the course of correspondence tendered in evidence. I am not persuaded that the plaintiff has been denied procedural fairness and his claim for relief on that basis must fail. 50Assuming I am in error and the Council cannot invoke s 115(2)(g) of the Roads Act, the remaining question is whether the Council's reliance on Part 4 of the Road Transport Act as the source of power to install the parking restriction signs obviated the need for it to comply with the procedural steps in Part 8 of the Roads Act. Before considering that question, I pause to consider whether Clause 7 of Schedule 4 of the Delegation operated as a limit to the exercise of the delegated functions of the RTA as contended for by the plaintiff. Clause 7 of the schedule provides: A council or its sub-delegate must not exercise a function until they have notified the Commissioner of Police and the Authority of any decision taken to exercise a function except where: (1) the advice of the Local Traffic Committee is unanimous; and (2) the council or its sub-delegate propose to follow such advice. 51The plaintiff submitted that the meeting of the Traffic Committee on 31 March 2011 was the critical meeting since it was at that meeting that the proposal for the installation of the signs was finally dealt with. The Council acknowledged, and it is clear from the minutes, that the representative from the New South Wales Police was not in attendance at that meeting (and there was no apology). The plaintiff submitted that where the advice from the Committee upon which Council ultimately relied in authorising the erection of the parking restriction signs was not unanimous, and where neither the Commissioner of Police nor the RTA were consulted, the Delegation was ineffective and for this reason the signs were installed in the absence of statutory power. 52This issue was the subject of correspondence between the parties in October 2011. In a letter dated 4 October 2011 the Council conceded that no representative of the New South Wales Police was in attendance at the meeting on 31 March. It maintained, however, that the views of the Commissioner were sought and obtained after the meeting, and before the matter was considered by the Council, and that this was reflected in the endorsement of the minutes of the meeting signed under the hand of the officer representing the police on 15 April 2011. The plaintiff submitted that even if the minutes were endorsed by him as accurate (although query the validity of the endorsement given his absence at the meeting), his vote is not cast simply by adopting minutes after they have been circulated. Despite there being provision on another pro forma document for a voting member who was not in attendance at a meeting of the Traffic Committee to agree with the recommendations in the circulated minutes, no document in that form was tendered in connection with the meeting of 31 March 2011. 53The document dated 15 April 2011 that was tendered, however, made provision only for the member's agreement that the attached minutes of the meeting of 31 March 2011 were or were not an accurate record of the meeting. That document was sent under cover of a letter of 12 April 2011 which advised that the Council would be considering the minutes; that the member would be notified of any alteration to the recommendations that the Council might make; and that the member's agreement with the minutes is requested in accordance with the provisions of the RTA "Delegation to Councils for the Regulation of Traffic including the operation of Traffic Committees". Clause 7 does not require that the Committee (in this case) "vote" unanimously in support of a decision. What is required is that the "advice" is unanimous. While that advice may take the form of a vote, it need not. It cannot be doubted that the issue of whether the Committee would recommend that the parking restriction signs be installed in the Laneway had by that date been ventilated and at very considerable length or that the representative of the police had been in attendance at the successive meeting where it had been discussed and recommendations made. 54I am satisfied that his endorsement of the minutes reflects his agreement with the Committee's proposals in full acknowledgement that they would be considered by the Council with a view to signs being installed with their authority. 55I turn now to consider the remaining issue identified in [50]. For the purposes of the Roads Act "regulate traffic" is defined in the Dictionary to mean, "... restrict or prohibit the passage along a road of persons, vehicle or animals". In Davies Austin J found that a power to restrict or prohibit the passage along a public road of persons, vehicles or animals is a power to prescribe the time, place, manner and circumstances in which traffic of that kind may pass along the road. In that case his Honour found that the Council's action of installing a roundabout affected the manner and circumstance of the passage of vehicles along a nominated road and that s 114 of the Roads Act prohibited that activity otherwise than by the Council's strict adherence to the procedural requirements in s 116. In Lane Cove Council v Roads and Traffic Authority of New South Wales [2001] NSWSC 30; 50 NSWLR 714 at 725 a "Give Way" sign was found to regulate traffic by requiring traffic in one direction to yield to traffic in the other direction and in this way, and consistent with the decision in Davies, the manner and circumstances in which traffic passed along a roadway was regulated for the purposes of the Roads Act. 56The Council submitted that the installation of "No Stopping" and "15 minute parking" signs along the Laneway does not constitute "regulating traffic" as defined or interpreted in either of the authorities to which reference has been made because the signs do not restrict or prohibit the passage of vehicles along the Laneway. It submitted that to "pass along" the Laneway necessarily comprehends the movement of vehicles from one point to another along that stretch of road and that regulating passage along the Laneway necessarily comprehends something which restricts the manner in which the traffic passes from one point to another along that distance. A sign that prevents a vehicle from stopping at or on a section of road, or stopping but only staying for a restricted time does not, so it was submitted, restrict passage in any relevant sense. 57The plaintiff submitted that a "No Stopping" sign, by definition, regulates traffic because it prohibits what a driver might do in his or her intended passage along the Laneway - namely not to stop on that part of the Laneway governed by the sign. Clause 167 of the Road Rules, and the "No Stopping" sign to which it refers, provides that "a driver must not stop on a length of road or in an area to which no stopping sign applies" with a penalty provided for in the event that prohibition is breached. The permissive parking sign, while in a slightly different category, was also said by the plaintiff to operate to regulate traffic along the Laneway because it had the effect of restricting the passage of vehicles by restricting the act of the driver stopping or allowing his or her vehicle to be stationary on the length of the road continuously, or alternatively prohibiting the act of a driver stopping or allowing his or her vehicle to be stationary on the length of the road for longer than the designated period. 58While the matter is not entirely free of doubt I am not persuaded that a prohibition on a vehicle stopping in the Laneway or a time limit on it stopping and remaining, restricts or prohibits the passage along the Laneway in the relevant sense.

Boensch v Parramatta City Council

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