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Norman Waterhouse

Case Law Update: Supreme Court Upholds Successful Council Parking Prosecution

In the recent Supreme Court of South Australia case of Stern v Corporation of the City of Adelaide [2020] SASC 220, Justice Anne Bampton dismissed an appeal by Ms Esther Stern against her Magistrates Court conviction for stopping her vehicle within one metre of a fire hydrant. The case confirms there is a public interest in Council’s pursuing cases of this nature and contains some useful clarity regarding the definition of a fire hydrant.

Facts

In the evening of 13 June 2019, a Council officer observed a vehicle parked between two permissive parking areas and adjacent a fire hydrant. The officer found the positioning of the vehicle so peculiar that he waited for a short while for the owner of the vehicle to return. After some time, the inspector determined to issue an expiation notice.

The owner of the vehicle claimed she believed she parked her vehicle within the permissive parking area and ultimately elected to be prosecuted.

The Appeal

At trial, and subsequently on the appeal, Ms Stern challenged:

  1. the fact the fire hydrant was indeed a fire hydrant within the definition of the Australian Road Rules (the ARR);
  2. the evidence the Council relied on to prove her vehicle was parked within one metre of the fire hydrant.

Further, Ms Stern appealed on the grounds the Council failed to disprove the defence of an act of a stranger to move her vehicle and that the order for costs made by the Magistrate was manifestly excessive.

It was Ms Stern’s submission the ‘tatty’ fire hydrant was not capable of drawing water or otherwise in working order and thus could not be said to meet the definition of a fire hydrant pursuant to Rule 194(3) of the ARR. Ms Stern submitted ‘a fire hydrant has one single purpose, which is to act as the connection point between the fire brigade and water main in case of fire emergency, and without that essential ability there exists merely a pipe that serves no other discernible purpose.’

Ms Stern disputed the fact her vehicle was parked within one metre of a fire hydrant, claiming:

  1. the parking officer did not measure the distance between her vehicle and the fire hydrant; and
  2. photographs taken by the officer and tendered to the Court were taken from angles such that the distance between the fire hydrant and the vehicle could not be accurately ascertained.

She also made some suggestion that her vehicle may have been moved by a person or persons unknown.

Decision

Justice Bampton held that Rule 194 of the ARR ‘concerns itself with access to fire hydrants and seeks to prohibit road users from obstructing that access.’ Her Honour found that the ARR does not concern itself with the working quality of fire hydrants and that:

‘Ms Stern’s proposed interpretation of the meaning of “fire hydrant” … may render the rule inoperable as it would require a someone, supposedly a parking officer, to attempt to draw water from a fire hydrant every time a parking infringement were to be issued to ensure the structure is indeed a working fire hydrant per the definition at that precise point in time.’

Accordingly, Justice Bampton concluded there is no onus on a Council to establish that a fire hydrant is working at the time of issuing an expiation notice.

The evidence regarding the distance between the vehicle and the fire hydrant consisted of oral evidence of the Council officer and photographs taken by the officer. Justice Bampton found that it was open to the Magistrate to accept the oral evidence of the officer and draw inferences from the photographic evidence tendered to the Court, thus no error was demonstrated.

There was insufficient evidence to suggest any third-party interference with the vehicle.

The appeal was dismissed.

Take Home Message

The case serves as a timely reminder of the importance of Council’s taking appropriate enforcement action to ensure road safety is not compromised in their areas. This case also emphasises the need for officers to take clear photographs and notes of relevant events. Further, it clarifies any uncertainty surrounding fire hydrants, with the Supreme Court clearly finding a fire hydrant is not required to be in working order for a parking offence to be committed.

For more specific information on any of the material contained in this article please contact Paul Kelly on +61 8 8210 1248 or pkelly@normans.com.au; or Dale Mazzachi on +61 8 8210 1221 or dmazzachi@normans.com.au; or Viviana Paradiso on +61 8 8210 1292 or vparadiso@normans.com.au.

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