THE RIGHT TO LEVY.

Auckland Star, Volume LIII, Issue 245, 16 October 1922, Page 5

THE RIGHT TO LEVY.

MAGISTERIAL DECISION REVERSED. FURTHER APPEAL UKKI-Y. The decision of the Stipendiary Magistrate at Wbakalanc. in an action brought by the Whakatane Harbour Board against George Colebrook. farmer, of Whakatane. in respect of dues levied under a by-law made by the Board, formed the'subject of a lengthy reserved judgment delivered Ivy Mr. Justice Herdman in the Supreme Court j this morning. , The dues concerned were levied I under a by-law on goods which passed over a wharf at a place called Thorn- , ton, or through what is called the , Thornton wharf shed. In 19 IK a whan'; and shed were erected at Thornton by i ibe Land Drainage Department in on- i neetion with land drainage work, iv which the Crown was then concerned. An informal permission was given the Board to use lhe wharf and shed, tv, long as the use by the Board did not conflict with the Department's requirements. The Board then proceeded to, i construct an extension of the wharf I which had been erected by 1 be Crown, thus linking up with a (iovertimeiii. I structure and expending £1,11(111 on the j work. His Honor stated, inter alia. that the question was as to whether Llie i Board was authorised by law It. levy. | dues on goods passing over the wharf , which it erected. The fad that the! work undertaken by lhe Board was j connected with a structure erected by . the Government could not, in bis Honor's opinion. bar the Board's claim, so long as it was plain lhul the i dues Claimed were claimed in reaped j of I he user of the harbour work completed by the Board. If. in such case. dues were irrecoverable, llieu it. lr.ighi be argued successfully lhat a board could not claim dues for the use of a wharf erected with tbe consent of the Crown, il the wharf was in physical contact with Crown lands on the foreshore. If the wharf had been erected by the Harbour Board under lhe authority given by Section 117 of the Harbour* Act. llios. and il" the sanction of the <'ovemor-iu-t ouneil in such work was obtained as required, ihcn the Hoard possessed a work in reaped of which it was eiitillc-.l l» exercise all j the powers of management and control specified in the Slat mc. including j t he power In levy dues. There could be I no question as lo lhe title of the wharf. | even though i! was erected mi ih<- bed jot a lidal river. Il was true that thjst met ure was a kind uf hybrid '•.-., j lion, the Board having tucked iii<- | wharf mi lo a tiovernrnent work. Im;, las bib Honor understood i lit- >■«•-, the J dues claimed were levied m rc.pc.-i of I the work constructed by th- Boar I only. The validity of ilic by-!.-. ~ I under which the appellant Hoard ; claimed m recover tl_ dues. I:_.l i. i ■been challenged, md :'s lie hi {.•■ i '~,-- --.[union thai the grounds relied v >•, by t lie rcspondeni afforded n» iusiili j cation for the "decision of th- lenrm-d ' Vlagistrate. his Honor would allow ih- ' appeal, with costs £10 111 . 1 Mr. Davis, on behalf uf respondent, j stated thai be was instruct.;.)' •.. «-l. | for leave to appeal to llie I'.-nri • ■"" Appeal. j His Honor said leave would i.c [granted lo mov..- ihe m-ns-ar.' nun ion. I Mr. Itider represented the 'arm. Haul j Board.