Hobart City Council v Spaulding [2009] TASMC 9 (17 December 2009)

Magistrates Court Tasmania (Criminal and General Division)

Hobart City Council v Spaulding [2009] TASMC 09

Traffic law- Regulation of traffic - Tasmania - Regulation of parking - Meaning of highway - Whether "car park" is a highway.

Local Government (Highways) Act 1982 ss2,3,95,97

Bailey -v-Jamieson [1876] 1 CPD 329; City of Keilor -v- O' Donohue [1971] HCA 77; [1971] 126 CLR 353; Brodie -v- Singleton Shire Council [2001] HCA 29; [2001] 206 CLR 512; Mills -V-Selby [1971] VicRp 102; [1971] VR 836, referred to

1. The defendant, Brett James Spaulding, is charged under section 97(1)(b)(ii) of the Local Government (Highways) Act 1982 ("the Act").

2. It is alleged by the complainant ("the Council") that he parked a vehicle in a parking space in Salamanca Square Car Park ("the car park") for which a voucher machine was available for longer than the maximum period authorised by a parking voucher obtained.

4. The case proceeded without sworn evidence and upon agreed facts.

1. The defendant parked his car in the car park on 21 May 2009.
2. The defendant initially obtained a 3 hour voucher to park, this being the maximum time permitted by a single voucher.
3. The defendant then purchased a further voucher during the currency of which he was given an infringement notice for breach of the provision in the Act referred to above.
4. The car park comprises a two level 0.829 ha property referred to in the title plan (Exhibit P4) as "Council Car Park", 1 Salamanca Square, Battery Point.
5. The car park is used by the public.

6. The defendant's grounds of defence are twofold:

1. That the council has no power to prosecute persons using the car park for parking infringements under s97 of the Act. This is because s95 of the Act only gives the council such power under the Act if the vehicle is parked on "part of a highway". The defendant submits that the car park in its entirety is not a highway.

1. That he was not parked for "longer than the maximum period authorised by a parking voucher or parking vouchers so obtained". This is because his parking was within the time limit specified on the second voucher, notwithstanding that his car had remained parked in the car park for longer than the maximum time permitted by a single voucher.

7. From ss95 and 97 of the Act, as set out below, I find that the council must prove the charge that the parking of the defendant's vehicle was on "a part of a highway in a city or town".

8. Section 95 of the Act states:

(1) On a part of a highway in a city or town on which vehicles without distinction of any kind may be lawfully parked, the corporation may mark out spaces and may install -

(a) a parking meter for each space so marked out; or

(b) a voucher machine for each of those spaces, or for a number of those spaces, as indicated on the machine or on a notice in the vicinity of that machine."

9. Section 97 of the Act, relevant to the charge, states:

"97. Enforcement of controlled parking

(1) During prescribed hours, a vehicle shall not remain parked -

....

(b) in a parking space for which a voucher machine is available -

(i) unless the parking of the vehicle is authorized by a parking voucher or parking vouchers obtained from the machine and displayed on the vehicle; or

(ii) longer than the maximum period authorized by a parking voucher or parking vouchers so obtained;

....

(a) a first or second offence, a fine not less than 0.5 of a penalty unit and not exceeding one penalty unit; or

(b) a third or subsequent offence, a fine not less than one penalty unit and not exceeding 2 penalty units."

10. Section 3 of the Act states:

(a) a part of a highway; and

(b) a mall;"

11. Section 2 of the Highways Act states:

12. Thus there is no statutory definition of highway. Therefore the word has its common law meaning: see Pearce v City of Hobart [1981] Tas. R 334 at p353_._

13. In Bailey v Jamieson [1876] 1 CPD 329, Lord Coleridge CJ stated at p332:

"Now, the common definition of a highway that is given in all the text-books of authority is, that it is a way leading from one market-town or inhabited place to another inhabited place, which is common to all the Queen's subjects. Although there are no cases precisely in point, there have been some which will to a certain extent assist us, where it has been argued that a road one end of which had been lawfully obstructed ceased to be a highway, as in Wood v Veal (1) and Rex v Downshire (Marquis) (2). The conclusion to which the court came in those cases was that the stoppage of one end did not make a road cease to be a common highway; for, though it thereby became a cul de sac, the public still might have a right to go over it to the end and back. These cases do not decide the point now before us: still they assist us to this extent, that, to constitute a highway, there must be some notion of a passage which begins somewhere and ends somewhere, and along which the public have a right to drive or to walk from its beginning to its end."

14. In City of Keilor v O'Donohue [1971] HCA 77; [1971] 126 CLR 353, Windeyer J stated at 363:

"But it is no longer necessary that to be a highway a road should lead from town to town, or village to village. Indeed it need not be a thoroughfare at all: it may be a cul de sac. It need not be a main road, a highway as distinct from a byway. In short, the characteristic for law of a highway is simply that it is a way over which all members of the public are entitled to pass and repass on their lawful occasions. The adjective "public" in the phrase "public highway" in the Act is thus a redundancy; but this needless emphasis does not create confusion in meaning."

15. In Brodie v Singleton Shire Council [2001] HCA 29; [2001] 206 CLR 512, Gaudron, McHugh and Gummow said:

"At common law, explained Windeyer J, ... a highway was a thoroughfare leading from town to town or village to village, but it became identified, again as Windeyer J put it, as "a way over which all members of the public are entitled to pass and repass on their lawful occasions". The tort of nuisance included unlawful interference with a right over or in connection with land, and interference with the safe enjoyment of the public right of way over a highway might constitute an actionable nuisance. In Australia, the vesting by statute in local government authorities of the fee simple in land over which there are public streets leaves the streets dedicated to the public. The authorities hold the fee simple "subject to the rights of the public to use the street for passing and re-passing, except in so far as those rights may be taken away or limited by statute."

16. From these authorities it can be seen that the essence of a highway is the public's right to use the land as a "way" or "passage". As demonstrated by Bailey v Jamieson a cul de sac may still be classified as a "way". The way is not required to be for vehicles only. A highway may be a footway as long as it is a public way for "passing and repassing".

17. In Halisbury's Laws of Australia "Highways at Common Law' (225-1) the author's state, referring to cases, that the public must have a right to pass and repass "at all time_s". In Melbourne Corporation v Barry_ [1922] HCA 56; [1922] 31 CLR 174 at 206 Higgins J said:

"as stated in Ex Parte Lewis it is a right for all her Majesty's subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance"

18. The council submits that the car park is a highway. Mr Spooner for the council submitted that the authorities allow the court to conclude that the car cark is a highway. He also tendered the Macquarie Dictionary definition of "highway" which, similar to the cases, provides "highway" as meaning "any public passage, either a road or waterway ... any main or ordinary route track or course."

19. Mr Spooner submitted that the car park is an area used by the public for parking cars. Therefore the area constitutes a public passage and is therefore a highway.

20. The essence of the defendant's submissions was as follows:

- that the Act, in all of its other provisions, is intended to deal with Local Government's powers and obligations in respect of public roads and streets in the conventional sense (closure, repair, adjoining landowners rights etc.). It would make an absurdity of the provisions if highways included enclosed areas such as car parks (that can take the form of multi-level buildings upon a separate title). He submits that the car park bears no relation to a highway and the Act is not intended to regulate such areas.

- that the controlled parking provisions in the Act are intended only to allow the council to regulate parking spaces on public roads. He submits that council can make separate by-laws for parking in other non-highway areas under its control. This might be by virtue of s20 and s145 of the Local Government Act. Indeed, the council has already passed such a by-law, (No. 2 of 2008, Exhibit P3), recognising that "off street council car parks" are not highways and thus do not fall within the Act.

21. After considering the submissions and authorities, I am not satisfied that the car park is a highway. I am of the view that for the charge to be sustained proof that the area is a highway must be upon the criminal standard. However if proof is only required on the balance of probabilities, I arrive at the same conclusion.

22. Firstly, there is no evidence that the car park was open to the public at all times. It is well known that similar undercover car parks are closed to the public, (either in vehicles or on foot) during certain hours of the day, primarily during the night. The fact that it may well be locked and inaccessible to the public for a significant portion of the day would negate the requirement of the public's right to free passage. At such times as the car park might be closed members of the public may be deemed trespassers. I note there is nothing to indicate that if the car park is regularly closed, it is closed by virtue of statutory authority under the Act.

23. Secondly, I am not able to find that the car park was used as a passage or way either for cars or for pedestrians. On the agreed facts I can find that during the times that the car park is open vehicles are permitted to enter the car park and the occupants can exit on foot to go about their business. I can also find that members of the public generally would be at liberty to enter on foot, walk around and exit onto another public area from the same or possibly another point in the car park. It would be unusual if the public sought to use the car park in this way as opposed to simply passing over part of the land as an adjunct to parking their vehicle. There is no evidence that the car park is or can be used as a thoroughfare for foot traffic or vehicles between two distinct points. The sheer size of the area on 2 levels tends, in these circumstances, towards the conclusion that it is not a "way" (see Schwinge v Dowell [1862] EngR 199; [1862] 2 F&F 845). Whilst these matters in themselves might not preclude the car park being a highway the court should look at the ordinary sense of the meaning of "highway" and determine in that sense whether an area is to be treated as such.

24. In Mills v Selby [1971] VicRp 102; [1971] VR 836, Nelson J said at p840:

"In the Shorter Oxford English Dictionary the word "road" is defined as an ordinary line of communication between different places used by horses, travellers on foot or vehicles. In Griffin v Squires, [1958] 1 WLR 1106; [1958] 3 All ER 468, the question arose as to whether a car park, maintained by a local authority for public use, adjoining a public road from which there were two openings for the passage of cars, was a road for the purposes of the English Road Traffic Act 1930.

The word "road" was defined in that Act as meaning any highway and any other road to which the public had access. Lord Parker, CJ, stated that it was a matter for the magistrates to decide as a matter of fact whether the car park in the ordinary sense could be treated as a road. Streatfield, J, who agreed with Lord Parker, said at (WLR) p.1109:

"If the definition of the word 'road' was in line with that in the Oxford Dictionary and described as a line of communication, I should have no doubt at all because, ... I have no doubt whatever that a public car park adjoining a public highway, there being two entrances from the highway on to the car park, is in fact a line of communication from either entrance to and from any point in that car park. If that was the sole test I should undoubtedly come to the conclusion myself that the magistrates were wrong; but, as it is, I have to give the proper effect to the words in the Act of Parliament where the offence consists of the act complained of performed upon 'a road' and by s121 of the Road Traffic Act, that means 'any highway or any other road to which the public has access.' Although a car park is in my opinion, a line of communication, I do not think anybody in the ordinary acceptance of the word 'road' would think of a car park as a road".

It is clear that the court in that case did not treat the fact that a certain space constituted a line of communication between one point and another as conclusive of the fact that it constituted a "road" for the purpose of a statute regulating road traffic, even although it was open to public access, and that it was a matter for the tribunal of fact to determine whether it was a road in the ordinary acceptance of that term."

25. I observe that the concepts of "highway" and "road" are often used interchangeably in the cases. In the Roads and Jetties Act "road" is defined as a "public highway".

26. In the context of the whole of the provisions of the Act, and with reference to the common law, the car park does not bear the character of a highway for the reasons given.

28. I will give brief reasons for also finding that I would also dismiss the charge on this ground.

29. The provisions of ss95 and 97 provide for the detailed operation of parking voucher machines. There is no reference to the maximum permissible stay for any car in the car park as being 3 hours. To the contrary s95(11) and (12) indicate, without references to time limits, that more than one voucher can be purchased simultaneously with others; in which case the time allowed for parking is cumulative.

30. It is specifically recognised in subs (12) that a further voucher purchased before the expiration of the first entitles a further period of parking cumulative to the original period. Again no limit upon the total time for parking is prescribed.

31. I am therefore not satisfied beyond reasonable doubt that the defendant's vehicle remained parked for longer than the maximum period authorised by parking vouchers so obtained.

32. For completeness, and referring to the defence provision of s97(6)(b)(iii) I am satisfied on the balance of probabilities that the defendant displayed a parking voucher or vouchers authorising his parking at the time of the issue of the infringement notices.