Council Parking Ticket issued while parked on private property NSW

[Tim W]

...the privately owned land is a footpath by virtue it being a road related area.

Rather the opposite.
I'd be arguing that it's a road related area because it's a footpath.
I'd be arguing that it's a footpath because it's open to pedestrians.
Open? Yes, because it's unfenced/ ungated, and
there are no signs (put up by anyone) saying anything like "No walking here"
The thing it is expressly not open to to the public for, is parking.

 

[Rod]

TimW has good points in that road rules do not explicitly state they only apply to public land.

However, the other argument you make is that you are not a driver. The driver definition excludes riders of motorbikes.

 

[vadmodnar]

How did you get on with this? I had a ticket here and am contemplating taking it to court.

 

[Db7gtgrigio]

TimW has good points in that road rules do not explicitly state they only apply to public land.

However, the other argument you make is that you are not a driver. The driver definition excludes riders of motorbikes.

TimW has good points in that road rules do not explicitly state they only apply to public land.

However, the other argument you make is that you are not a driver. The driver definition excludes riders of motorbikes.

Pleaded not guilty and Court date set for November - through FOI I have discovered that there have been 3 identical matters taken to court and they were all dealt with as Section 10 ie guilty but no conviction recorded or fine issued. I also discovered by FOI that Revenue NSW wrote to Sydney City Council noting that someone had contested a ticket on the basis that the footpath was private property, and asking for Council's advice. Interestingly the council's response did not deal with the question of parking on private land it focused on the dangers that that motorcycles posed to pedestrians parked in that location.

 

[Scruff]

1. The Road Rules apply according to public access and a lands "purpose" or "usage" - not "ownership". It is therefore irrelevant that the land is private property. The application of the law here is exactly the same as it applies to a shopping centre car park. Even though the land is private property, the fact that it's open to the public and is either designed for, or mainly used for a particular purpose covered by the Road Rules means that the Road Rules apply to that land.

The land in this case is clearly open to the public, therefore the only question is whether or not the circumstances meet the criteria for section 197...

2. The land in question is a footpath as defined by the Road Rules:

NSW Road Rules 2014

Dictionary

footpath, except in rule 13(1), means an area open to the public that is designated for, or has as one of its main uses, use by pedestrians.

Note — Rule 13 defines road related area.

Note the words "is designated for, or has as one of its main uses". Like many definitions, this one is based solely on access and purpose or usage. Land ownership is not a factor and is not something that a court can even consider, because ownership has nothing to do with the law being applied in the case.

Since the land in question is open to the public and is mainly used by pedestrians (other than when motor bikes are parked there contrary to the no parking sign), it meets this definition and is therefore a footpath for the purpose of the Road Rules. Therefore...

3. Road Rule 197 applies to the land in question.

197 Stopping on a path, dividing strip, nature strip, painted island or traffic island

(1) A driver must not stop on a bicycle path, footpath, shared path or dividing strip, or a nature strip adjacent to a length of road in a built-up area, unless —

(a) the driver stops at a place on a length of road, or in an area, to which a parking control sign applies and the driver is permitted to stop at that place under these Rules, or

(b) the driver is permitted to stop under another law of this jurisdiction.

Maximum penalty — 20 penalty units.

(1A) A driver must not stop on a painted island.

Maximum penalty — 20 penalty units.

(1B) A driver must not stop on a traffic island.

Maximum penalty — 20 penalty units.

(2) Subrules (1) and (1B) do not apply to the rider of a bicycle or animal.

4. Section 197 applies to riders of motor bikes.

16 Who is a driver

(1) A driver is the person who is driving a vehicle (except a motor bike, bicycle, animal or animal-drawn vehicle).

(2) However, a driver does not include a person pushing a motorised wheelchair.


17 Who is a rider

(1) A rider is the person who is riding a motor bike, bicycle, animal or animal-drawn vehicle.

(2) A rider does not include —

(a) a passenger, or

(b) a person walking beside and pushing a bicycle.


19 References to driver includes rider etc

Unless otherwise expressly stated in these Rules, each reference in these Rules (except in this Division) to a driver includes a reference to a rider, and each reference in these Rules (except in this Division) to driving includes a reference to riding.

There is absolutely no doubt that the infringement is valid. It all comes down to two facts:

1. the land is open to the public; and
2. the land is mainly used by pedestrians.

There's no way you can successfully argue against either of those facts. Who owns the land is totally irrelevant under the law being applied in the case.

 

[Scruff]

By the way, it's also worth mentioning that the maximum penalty is 20 penalty units - that's $2,200, which is a hell of a lot more than the fine you received.

My advice - forget about going to court and pay the fine. If you go to court and the prosecutor is in any way competent, you will lose.

Always remember that unless explicitly stated otherwise, all state law applies to the state as a whole. Like any other law, for the Road Rules not to apply to a particular piece of land, that exclusion must be legislated. It's no different to the Crimes Act or any other legislation - you don't get away with murder simply because you commit the crime on private property.

Furthermore, since the law applies state wide by default, if you go to court on the basis that the Road Rules do not apply to that particular piece of land, then the onus is on you to prove the exclusion, not the prosecution to prove something that doesn't exist.

 

[Rod]

(1) A driver is the person who is driving a vehicle (except a motor bike, bicycle, animal or animal-drawn vehicle).

 

[Scruff]

@Rod Always "Click to expand" mate. As already quoted:

19 References to driver includes rider etc

Unless otherwise expressly stated in these Rules, each reference in these Rules (except in this Division) to a driver includes a reference to a rider, and each reference in these Rules (except in this Division) to driving includes a reference to riding.

 

[Db7gtgrigio]

TimW has good points in that road rules do not explicitly state they only apply to public land.

However, the other argument you make is that you are not a driver. The driver definition excludes riders of motorbikes.

1. The Road Rules apply according to public access and a lands "purpose" or "usage" - not "ownership". It is therefore irrelevant that the land is private property. The application of the law here is exactly the same as it applies to a shopping centre car park. Even though the land is private property, the fact that it's open to the public and is either designed for, or mainly used for a particular purpose covered by the Road Rules means that the Road Rules apply to that land.

The land in this case is clearly open to the public, therefore the only question is whether or not the circumstances meet the criteria for section 197...

2. The land in question is a footpath as defined by the Road Rules:



Note the words "is designated for, or has as one of its main uses". Like many definitions, this one is based solely on access and purpose or usage. Land ownership is not a factor and is not something that a court can even consider, because ownership has nothing to do with the law being applied in the case.

Since the land in question is open to the public and is mainly used by pedestrians (other than when motor bikes are parked there contrary to the no parking sign), it meets this definition and is therefore a footpath for the purpose of the Road Rules. Therefore...

3. Road Rule 197 applies to the land in question.



4. Section 197 applies to riders of motor bikes.



There is absolutely no doubt that the infringement is valid. It all comes down to two facts:

1. the land is open to the public; and
2. the land is mainly used by pedestrians.

There's no way you can successfully argue against either of those facts. Who owns the land is totally irrelevant under the law being applied in the case.

I really appreciate this commentary - its very clear and well reasoned. I Think on this basis I am going to change my plea to guilty. I assume I can do that by filing an Application to Vacate a Hearing Date? Given that I have information that suggests other tickets have been delt with at this identical location by way of a section 10 there is nothing to lose by explaining that I erroneously thought that the fact it was private property meant that it was not a footpath and asking for it to be delt with as a Section 10?

 

[Scruff]

Thanks for your kind comments - glad I was able to help.

I can't comment on section 10 as it's not something I know enough about. I'm sure that Tim and Rod will be able to help you figure out the best way to proceed from here.

And a little bonus for a bit of a giggle...

I also discovered by FOI that Revenue NSW wrote to Sydney City Council noting that someone had contested a ticket on the basis that the footpath was private property, and asking for Council's advice. Interestingly the council's response did not deal with the question of parking on private land it focused on the dangers that that motorcycles posed to pedestrians parked in that location.

Does anyone else find it hilarious that these two particular bodies don't appear to know how the Road Rules work? The decision making process when dealing with appeals or reviews or whatever must be a real hoot - I'm guessing something akin to watching monkeys trying to build a lawn mower!