Regional Council's threat to clamp vehicles at park-and-rides may be illegal
Monday, 2 July 2018
Abusers of Wellington's free park-and-rides are being warned their vehicles could be clamped or towed, but it appears the council threatening the crackdown has no legal authority to do so.
Greater Wellington Regional Council (GRWC) began installing signs at various park-and-ride car parks last month, warning people they faced fines, towing or clamping if they parked illegally or did not transfer onto public transport.
But a lawyer specialising in the subject said a road controlling authority had no power to enforce any kind of parking penalties without first passing a bylaw, which the regional council had not done.
'The council seems to have flagrantly overlooked its obligations in terms of imposing lawful parking restrictions in these areas,' Alwyn O'Connor, a lawyer with Irons Legal Barristers, said.
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Under the Land Transport Act 1998, any road controlling authority first needed to consult with the public on implementing parking enforcement, then legislate a bylaw, O'Connor said.
It could then employ parking wardens and issue fines of up to $60 or tow vehicles, but could not contract out to a third party to enforce parking or clamp vehicles.
The regional council was the automatic controlling authority for the park-and-rides because it managed or controlled the car parks, which were defined as roads in the Act, he said.
A road was defined as any piece of land which a vehicle can access, be it a street, private driveway, or even a beach.
The regional council said it sought legal advice and opted to introduce 'terms and conditions' in order to enforce parking, rather than become a road controlling authority and need to pass a bylaw.
But O'Connor said it had no choice, and was the default authority.
'If the council chooses to restrict parking in the way it is purporting to, then it ought to comply with the legislative regime.
'Until the council complies, it would seem it is unable to enforce the purported restrictions.'
The council said recently it planned to start enforcing the penalties later this month.
Automobile Association parking penalties spokesman Mark Stockdale said it was ironic the council was telling drivers to obey the law when it itself was not.
'It's a bit of an own goal. Motorists will find it quite ironic the regional council is telling them they should know and obey what the parking rules are, while the council issuing these rules doesn't know and obey the rules it must comply with in order to carry out that enforcement.'
The council should 'suspend' the proposal until it had complied with the laws, Stockdale said.
'We know there's a problem that does need solving. The council just needs to do it by the book.'
On Monday, underneath a 'no parking on the grass' sign, a Honda ute next to the carpark's entrance had been given a warning ticket. A second ticket would have the ute clamped, it said.
'Your vehicle was almost clamped or towed,' a leaflet under the windscreen wiper said.
But, 20 metres away, a row of cars parked on another grass berm were without warning tickets or leaflets.
A GWRC spokesman said the council was acting on legal advice from law firm DLA Piper, which has provided similar advice to other authorities.
'Our legal advice is that a bylaw is not needed to enforce parking infringements at the park-and-ride land.'
The park-and-ride 'assets' are owned by Greater Wellington Rail Limited, which leases the land from GWRC, the spokesman said.
'The terms and conditions are a legally-binding manner of enforcement and rely on landowners' rights to control entry to their land and use of it, not statutory rights to create parking restrictions.'