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ROAD TRANSPORT LEGISLATION AMENDMENT REGULATION 2008 (NO 2) (NO 47 OF 2008)
2008
THE
LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN CAPITAL TERRITORY
ROAD TRANSPORT LEGISLATION AMENDMENT REGULATION
2008 (NO. 2)
SUBORDINATE LAW SL
2008-47
EXPLANATORY
STATEMENT
Presented by
Jon Stanhope MLA
Minister for Transport
ROAD TRANSPORT LEGISLATION AMENDMENT REGULATION 2008
(NO. 2)
This regulation makes amendments to the scheme for heavy vehicle parking
in residential areas set out in Division 3.1.3 of the Road Transport (Safety
and Traffic Management) Regulation 2000. The amendments in this regulation
are made under sections 23 and 90 of the Road Transport (General) Act
2000, section 33 of the Road Transport (Safety and Traffic Management)
Act 1999 and section 23 of the Victims of Crime Act 1994).
The
substantive amendments in the regulation are contained Schedule 1, Part 1.3.
Parts 1.1, 1.2 and 1.4 of the regulation contain consequential amendments to the
Road Transport (General) Regulation 2000, the Road Transport
(Offences) Regulation 2005 and the Victims of Crime Regulation
2000.
Schedule 1, Part 1.3 of the regulation contains amendments to
provisions in the road transport legislation that regulate the parking of heavy
vehicles on residential land. The amendments are consequential on the repeal of
the Land (Planning and Environment) Act 1991 on 31 March 2008. Before
its repeal, that legislation provided a mechanism for enforcing the scheme set
out in the Code of Practice for Parking Heavy Vehicles in Residential
Areas DI 1997-194 (the Code of Practice). The Code of Practice was made
under former section 150M of the Motor Traffic Act 1936 and continued to
have effect under transitional arrangements set out in former section 121 the
Road Transport (Safety and Traffic Management) Regulation 2000. Some of
the basic restrictions on parking heavy vehicles on residential land that were
set out in the Code of Practice were also incorporated as parking offences in
the Road Transport (Safety and Traffic Management) Regulation 2000.
However, elements of the Code with a “land use” dimension, for
example provisions to regulate the use of refrigeration units on heavy vehicles
parked on residential land, or to prevent the operation of heavy vehicles on
residential land at night, remained wholly governed by the Code of
Practice.
The Code of Practice was linked to the Land (Planning and
Environment) Act 1991 because parking a heavy vehicle on residential land in
contravention of the Code of Practice was specified to be a “controlled
activity” for the purposes of schedule 5 of the Land (Planning and
Environment) Act 1991. An order could be sought under section 256 of that
Act to stop the controlled activity, and it was an offence to contravene a
section 256 order.
This regulation also repeals the 1997 Code of
Practice, as it cannot operate effectively following the repeal of the Land
(Planning and Environment) Act 1991. Redundant provisions dealing with
exemptions from the Code of Practice are also omitted. There are new offences
to incorporate those elements of the Code of Practice that were not included
when division 3.1.3 of the Road Transport (Safety and Traffic Management)
Regulation 2000 was initially introduced. The new offences include offences
about the required distance between heavy vehicles and property boundaries, the
operation of refrigeration units and night operation of heavy vehicles. The
amendments in new division 3.1.3A will provide a new mechanism for enforcing
heavy vehicle parking restrictions to replace the enforcement mechanism
previously available for “controlled activities” under the Land
(Planning and Environment) Act 1991.
New division 3.1.3A provides
enforcement powers for authorised persons (it is anticipated that the authorised
persons will be parking operations personnel from the Office of Regulatory
Services). These powers include the power to enter premises to check whether a
vehicle is in breach of the heavy vehicle parking scheme, for example enabling
the authorised person to measure whether a vehicle complies with length, height
and weight restrictions or is parked the required distance from boundaries and
the setback line at the front of the property, or to check a vehicle’s
registration documents or the vehicle identification number.
Clause 1 Name of Regulation
This clause is a formal provision
to set out the name of the regulation.
Clause
2 Commencement
This clause is a formal provision that sets the
commencement of the regulation. The amending regulation will commence the day
after notification.
Clause 3 Legislation amended - schedule
1
This clause explains that the legislation amended by the regulation
is set out in Schedule 1.
Clause 4 Repeal
This clause
repeals the Code of Practice in DI 1997-194, which can no longer operate
effectively following the repeal of the Land (Planning and Environment) Act
1991 on 31 March 2008.
Schedule 1 Amendments
Part
1.1 Road Transport Legislation
Item [1.1] Schedule 1, part 1.9,
items 5 to 10
This item is a consequential amendment that omits from
the schedule of reviewable decisions various references to provisions in the
Road Transport (Safety and Traffic Management) Regulation 2000 that
will be omitted by item [1.12].
Part 1.2 Road Transport (Offences)
Regulation 2005
Item [1.2] Schedule 1, part 1.13, new items 56A
and 56B
This item is a consequential amendment that amends the table
of offences in Schedule 1 of the Road Transport (Offences) Regulation
2000 to insert new references to the offences in new sections 85A and 85B of
the Road Transport (Safety and Traffic Management) Regulation 2000 that
will be inserted by this regulation, and to prescribe infringement notice
penalty amounts for those offences.
Item [1.3] Schedule 1, part 1.13,
new items 58A to 58C
This item amends the table of offences in
Schedule 1 of the Road Transport (Offences) Regulation 2000 to insert new
items that refer to the offences in new sections 87B and section 87C of the
Road Transport (Safety and Traffic Management) Regulation 2000 and to
prescribe the infringement notice penalty amount for those
offences.
Part 1.3 Road Transport (Safety and Traffic Management)
Regulation 2000
Item [1.4] Section 82, definition of code of
practice
This item omits the definitions of “code of
practice” and “exemption” and is linked to the omission of
sections 89 to 97 by item [1.12]. These amendments are linked to clause 4,
which repeals the Code of Practice in DI 1997-194. This item also omits
the definitions “existing operator” and “existing
operator’s certificate”, as these concepts will be explained in new
section 87C.
Item [1.5] Section 85(3)
This item omits
section 85 (3), which sets out the circumstances that provide a defence to the
offence in section 85 (2). The defence in section 85(3) will be included as new
section 87A by clause 15. New section 87A is a defence provision that applies
to the offences in sections 85, 85A, 85B, 86 and 87. The drafting of the
regulation is simplified by including a separate defence provision in section
87A instead of reproducing the defence in each of offences to which it
applies.
Item [1.6] New sections 85A and 85B
This item
inserts new offence provisions based on the Code of Practice.
New
section 85A is based on section 3 of the Code of Practice, which restricted the
number of heavy vehicles that could be parked on block of residential land. This
section makes it an offence to park 2 or more heavy vehicles on residential
land, or to park a heavy vehicle on residential land if another heavy vehicle is
already parked there. The offence is not committed if one of the heavy vehicles
is plant or equipment that is parked on the other vehicle and their combined
height does not exceed 3.6 meters. The defence in new section 87A also applies
to section 85A.
New section 85B is based on section 4.1 of the Code of
Practice. This section makes it an offence to park any part of a heavy vehicle
on residential land so that it is in front of the setback line of the front
boundary, or less than 1.5 metres from any other boundary of that land. The
purpose of this provision is to ensure that heavy vehicles parked on residential
land do not encroach on surrounding properties or unduly affect the visual
amenity of the streetscape. The defence in new section 87A also applies to
section 85B.
Item [1.7] Section 86 (3)
This clause omits
section 86 (3), which sets out the circumstances that provide a defence to the
offence in section 86 (2). The defence in section 85(3) will be included as new
section 87A by item [1.10].
Item [1.8] Section 86 (4)
This
item is a consequential amendment. It removes the word “also”, as
this word is redundant following the omission of section 86 (3).
Item
[1.9] Section 87 (3)
This item omits section 87 (3), which sets out
the circumstances that provide a defence to the offence in section 87 (2). The
defence in section 85(3) will be included as new section 87A by item
[1.10].
Item [1.10] New sections 87A to 87C
This item
inserts new sections 87A to 87C after section 87.
New section 87A, as
mentioned previously, contains a defence to the offences in sections 85, 85A,
85B, 86 and 87. It sets out two circumstances in which a person will have a
complete defence to a charge under those provisions. The defence applies only
if the vehicle was on the land in either of those two circumstances for no
longer than was reasonable. The two circumstances are:
• it was
necessary to park the vehicle on the land to avoid contravening the Act or
another territory law; or
• the vehicle was parked there to deliver or
collect goods or passengers, or to provide services.
New section 87B is
based on section 4.1 of the Code of Practice. This clause provides that it is
an offence for a person to operate a refrigeration unit on a heavy vehicle that
is parked on residential land. The purpose of this provision is to protect the
amenity of residential neighbourhoods from noise generated by large refrigerated
trucks. Consistent with the terms of the Code of Practice, the defence in
section 87A does not apply to this offence. It should be noted that section 87B
applies only to heavy vehicles and does not prevent light commercial vehicles
with refrigeration units, such as food suppliers or florist’s vans, from
stopping on residential land.
New section 87 C is based on section 5 of
the Code of Practice. Section 87C (1) provides that is an offence for a person
who is not an existing operator to operate a heavy vehicle on residential land
between 10.00 pm and 6.00 am. Section 87C (2) provides that is an offence for
an existing operator to operate a heavy vehicle on residential land between 12
midnight and 5.30 am. These offences are intended to protect the amenity of
residential neighbourhoods from the noise associated with operating heavy
vehicles at night..
By way of background, an existing operator is a
person who was granted an existing operator certificate under the transitional
arrangements that were put in place when the heavy vehicle parking scheme first
came into operation in 1997. Section 150Q of the since-repealed Motor
Traffic Act 1936 allowed certain heavy vehicle operators to apply for an
existing operator’s certificate within 12 months after that section came
into force. A person could apply for a certificate within that 12 month period
if he or she had parked a heavy vehicle on residential land on at least 24
occasions in the previous 2 years. Existing operators could also apply to be
exempted from provisions of the Code of Practice. Existing operator
certificates were specific to particular vehicles parked at particular premises
and were not transferable. A certificate ceased to have effect if the operator
no longer operated that vehicle or resided at those premises. There are less
than 30 existing operator certificates still in force.
Item
[1.11] Section 88
This item substitutes section 88. New section 88
explains what happens when conduct that constitutes an offence under sections
85, 85A, 85B, 86, 87 or 87B continues over more than 1 day. It makes it clear
that a separate offence is committed for each day or part of a day that a
contravention of the offence provision continues. For example, if a person
leaves a vehicle parked in contravention of section 85 from 8.30 pm on a Monday
until 12.30 pm on Friday that week, the person will have committed 5 offences
under that section.
Item [1.12] Sections 89 to 97
This item
is a consequential amendment arising from the repeal of the Code of Practice.
It omits provisions that dealt with existing operator certificates and
exemptions from the Code of Practice for existing operators. These provisions
were part of a transitional scheme that “grandfathered” the
concessional arrangements for existing operators when the heavy vehicle parking
scheme was introduced in 1997. As indicated in the notes to item [1.10], there
are less than 30 existing operator certificates remaining and the number
continues to decline as the holders of the certificates move residence or change
vehicles.
If there is a need to grant an exemption to an existing
operator in the future, it would be possible to use the general exemption power
contained in section 13 of the Road Transport (General) Act 1999 to
exempt an existing operator from a requirement of division 3.1.3.
Item [1.13] New division 3.1.3A
This item inserts new
division 3.1.3A, which deals with the enforcement of offences under division
3.1.3 and replaces the enforcement mechanism that previously existed under
section 256 of the repealed Land (Planning and Environment) Act
1991.
New section 89 defines the term “occupier”.
It explains that an occupier includes a person believed on reasonable grounds to
be the occupier of premises and a person apparently in charge of premises. The
definition is included to identify the range of people who may be asked to
consent to the entry of an authorised person onto the premises for the purposes
of new division 3.1.3A.
New section 90 contains a power of
entry that explains when an authorised person is permitted by law to enter
premises for the purposes of heavy vehicle parking enforcement. In summary, the
power can be exercised with the consent of the occupier, or where an authorised
officer has reasonable grounds to believe a vehicle is parked on the premises in
breach of division 3.1.3 and entry is necessary to gather certain information
relating to the vehicle, such as measurements and registration details. For
example, it may be necessary to establish how far the vehicle is parked from a
property boundary or whether it exceeds the permitted measurements for a heavy
vehicle parked on residential land.
Section 90 (3) deals with the time of
day at which the powers of entry may be used. If the entry is sought because of
a suspected breach of the provisions dealing with the operation of refrigeration
units or the night operation of vehicles, the power may be exercised at any
time. As the purpose of those offence provisions is to stop noise and
disruption to the amenity of residential areas, it is appropriate that to enable
prompt enforcement action to be taken when problems arise. The remaining
offences are less time sensitive so it is reasonable to place reasonable
restrictions on when the entry powers can be used in relation to suspected
breaches. As heavy vehicle operators may work long hours and may not be home
during standard business hours to provide relevant information or documents, a
time span of 8 am until 8 pm has been specified for this purpose.
New
section 91 provides than an authorised person cannot remain at premises
unless the authorised person shows the occupier the person’s identity card
when requested to do so. This requirement is standard in ACT regulatory
legislation, and allows the public to be confident that persons purporting to
exercise powers on the part of the Government are properly authorised to
do.
New section 92 explains what an authorised person is required
to do when seeking consent to enter premises. In summary, the authorised person
must show his or her identity card and let the occupier know why entry is sought
and that consent to the proposed entry may be refused. Where consent is given,
it must be acknowledged in writing and a copy of the acknowledgement must be
given to the occupier. The written acknowledgement is important evidence of
consent in any subsequent court proceedings.
New section 93 sets
out the powers that an authorised person may exercise after entering premises.
The purpose of the powers is to enable the authorised person to establish
whether or not a heavy vehicle is on those premises in breach of division 3.1.3.
Accordingly, these powers include the power to inspect the vehicle, take
measurements, take photographs or make other records, or to require the occupier
of premises to provide information, documents or assistance. For example, the
authorised person might want to measure the length or height of the vehicle, to
establish its distance from boundaries, to record the operation of a
refrigeration unit, or to review registration labels and vehicle identification
numbers to determine who is the responsible person for the vehicle. It is not
anticipated that an authorised person would require entry to residential
buildings on the premises, as heavy vehicles are generally too large to be
parked within these structures.
An authorised person may also require
the occupier or someone else at the premises to provide information, produce
documents or give reasonable assistance.
Subsection 93(2) makes it an
offence for a person to fail to take all reasonable steps to comply with a
requirement made of the person under new subsection 93 (1) (d).
New
section 94 is a standard provision that imposes an obligation on an
authorised person to minimise the damage, inconvenience or detriment arising
from the exercise of the authorised person’s functions under new division
3.1.3A. If damage does occur, the authorised person must notify the owner of
the damaged item about that damage.
New section 95 is a standard
provision that confers a right to compensation for any loss or expense
arising from the exercise of an authorised person’s functions under new
division 3.1.3A.
Item [1.14] Dictionary, note 3
This clause
inserts a reference to the term “authorised person” in this note.
This consequential amendment arises from the inclusion of division 3.1.3A, which
confers certain enforcement powers on authorised persons.
Item
[1.15] Dictionary, definitions of code of practice, exemption and existing
operator’s certificate
This clause omits certain definitions
from the dictionary, as they are no longer necessary.
Item
[1.16] Dictionary, new definitions
This clause includes a
definition of ‘premises’ in the dictionary, which makes it clear
that 'premises' includes land. This consequential amendment arises from the
inclusion of powers to enter premises in new division 3.1.3A.
Part 1.4
Victims of Crime Regulation 2000
Item [1.17] Schedule 1, part
1.2
This item inserts references to the offences in new sections 85A
and 85B of the Road Transport (Safety and Traffic Management) Regulation 2000
into Schedule 1, part 1.2 of the Victims of Crime Regulation 2000.
The effect of this amendment is to exclude these offences from the application
of the victims services levy. This exclusion is consistent with the exclusion
of other parking offences from the application of the levy. The new offences in
section 87B and 87C of the Road Transport (Safety and Traffic Management)
Regulation 2000 are not excluded, as those offences deal with the operation
of heavy vehicles on residential land, not just the parking of those vehicles on
that land.