ROSENEATH LIFT

Evening Post, Volume CIX, Issue 92, 21 April 1925, Page 8

ROSENEATH LIFT

QUESTION OF ACCESS

PLAINTIFFS SECURE INJUNCTION

DECISION OF THE FULL COURT.

The Full Court, consisting of his Honour the Chief Justice (Sir Eobert Stout) and their Honours Mr. Justice Sim, Mr. Justice Reed, Mr. Justice Adams, and Mr. Justice Ostler, to-day gave judgment in the case in which the Attorney-General and Eobert William Burbidge and Eobert Henry Stickney moved for an injunction restraining the Wellington City Council from proceeding with the construction of an inclined lift or tramway at Roseneath. The decision declares the deed of conveyance of the land required for the work to be void, and orders an injunction restraining the City Council, until the further order of the Court, from proceeding to construct the work'upon any portion of the lands' comprised in the conveyance. The members of tha Court wero all agreed except the Chief Justice, who dissented. NAME IMMATERIAL. In the course of his judgment, Mr. Justice Heed said that the ratepayers of Wellington had authorised tho council to raise a loan of £129,150 in respect of a purpose designated on the voting papers as "Proposal 2 (Street works). . ." The council, having received the approval of the ratepayer to this "Proposal 2," was entitled to raise the loan and proceed with tho works, including "^proved access to Roseneath." It was proposed to carry out this work by means of a contrivance that would lift passengers from the Oriental Bay road to the heights of Roseneath on an inclined plane at an angle of 34 degrees. As to the namo to be applied to this contrivance, there had been much, controversy. Witnesses lor the plaintiff called it a tramway, and witnesses for the City Council said it was a lift or elevator. His Honour thought it would not be improper to describe it by either term, and, in any cast), it came within the class of vehicle described in section 172 (4) (n) of the Municipal Corporations Act, 1920, as "elevators, moving platforms, and machinery for passenger traffic." WAS IT A STREET WORK? The plaintiffs claimed, said his Honour, that any expenditure by the City Council on the proposed scheme would Be ultra vires as not having been authorised by the ratepayers. It was contended that the heading to proposal No. 2. "Street Works," and the nature of the other projected works grouped under that heading, limited the powers of the City Council in providing "improved access to Roseneath" to actual works on streets, as, for instance, a road or street to Roseneath, and that the scheme was not a street work. If there had been a separate proposal "Improved Access to Roseneath," with a specific sum of money allocated to it, there was no doubt that the council could have carried out any scheme which would provide access. His Honour thought there was no necessity to describe with particularity the means that a local body proposed to adopt to carry out the "particular purpose" required to be stated in compliance with the provisions of section 9 (a) of the Local Bodies Loans Act, 1913.

Having narrowed the question down to whether the proposed scheme was a street work, his Honour gave an affirmative opinion and supported this with legal references. "I have already stated." he said, "that I consider the contrivance adopted by the council as falling within the description in the subsection. It will be necessary to the lawful construction of the work that it starts from a street and ends at a street, and that it is erected either on a street or over land adjacent to a street. Provided those conditions are complied with I think tho carrying out of the scheme is in accordance with the mandate of the ratepayers. USE OF THE TOWN BELT. "One other question remains. The projected scheme necessitates the use of a certain part of the Town Belt. This part is vested in the City Council by virtue of a deed of conveyance, dated the 18th January, 1883, executed by Sir James Prendergast as the officer administering the Government for and on behalf of the Queen. It should have been conveyed in 1871 by the Superintendent of the Province of Wellington, in accordance with the provisions of the Wellington City Reserves Act, 1871, but was omitted from the conveyance executed m pursuance of that Act By virtue of the Abolition of Provinces Act, 1875, this land became vested in Her Majesty." His Honour dealt with the question of the deed of conveyance, and decided that the Corporation might be able to obtain from the crown a conveyance .of the lands on trusts which would enable it to carry out the proposed work on the land. Until that had been done, the plaintiffs were entitled to an injunction against using the land for that purpose. INJUNCTION GRANTED. (In conclusion, his Honour said :— "There will be a declaration that Deed of Conveyance No. 99349 is void, and that tho land comprised in that conveyance is the property of the Crown, subject to the provisions of the Wellington City Reserves Act, 1871, and further, there will be an order for an injunction restraining the defendant council, until tho further order of the Court, from proceeding to construct the work in question upon any portion of the lands comprised in that conveyance. As arranged between the parties, there will be no costs.

Mr Justice Sim, Mr. Justice Adams, and Mr Justice Ostler, concurred with the conclusions arrived at by Mr. Justice Reed. The Chief Justice, Sir Robert Stout, dissented.

At the hearing, the plaintiffs were represented by Mr. D.S. Smith, with him Mr. Taylor, and Mr. J. O'Shea, with