KENT TERRACE

Evening Post, Volume CXII, Issue 91, 14 October 1926, Page 8

KENT TERRACE

THE WORK CHECKED

INTERIM INJUNCTION GRANTED

APPLICATION TO TH2 SUPBKME , COURT.

Tho first shot in the battle of law between three residents of Wellington and the Wellington City Council in regard to the Kent Terrace Reserve was fired in tho Supreme Court yesterday afternoon, when an interim injunction was made restraining the Council from its present work, on the Reserve. The iriotion for injunction set out that" the Corporation proposed, without authority.of law, to appropriate parts of the Canal Reserve in making streets, and in doing so, proposed to cut down, trees, shrubs, and plants growing on tho Eeserve. The parties were Arthur Leigh Hunt (company director), Edward Collins Jack (company secretary), and William Jack (accountant), plaintiffs, and the Mayor, councillors, and citizens of Wellington, defendants. Mr. Justice Eecd was on the Bench. Mr. T. F. Martin appeared for the plaintiffs, and Mr. J. O'Shea, City Solicitor, for tho defendants. AN EARLY ACT. The statement of claim set out that the plaintiffs weer inhabitants of Wellington. By the Wellington City Eeservea Act, 1871, Section 4, the Superintendent of/the Province of Wellington was directed to convey certain [lands to tlfe.-' defendant Corporation upon trust, "and-for-purposes of public utility to the 'city of Wellington and its inhabitants..'. The lands, it was stated, were accordingly conveyed upon trust "to be ever used and appropriated as a public'- recreation ground for the inhabitants:" Among those lands, it was ■ further, stated} was a strip of land leading to'the Basin Eeserve, and jin the Act referred to as the '' Canal Eeserve." >'|V Parts of the;reserve had for many years past been; used as public streets, known as Kent? terrace and Cambridge terrace. It was further alleged that the defendant Corporation had, without any authority of la%, included parts of the reserve in Kent and Cambridge terraces; had made other streets across the reserve, arid was now proposing to include further ;parts of tho reserve in Kent and Cambridge terraces, and to appropriate a further part of tho reserve in widening Buckle street at the soilth' end o&jtlie reserve, and in mak : ing '■•■»-' new-street/across;t/across; the rcservo at a iplaco between; 'Vivian street and Buckle street ,v. „', ■■ tfoi- the purposes of these works, the Corporation proposed to cut down and iemove valuable native; trees and shrubs, arict plants growing oil the reserve, and it was also .seated that tho Corporation proposed' to,; Cut down.trees, shrubs, and plants growing on.other parts of tho reserve., j /' ■.•■■ •The plaintiffs-accordingly asked that the Court should issue an injunction restraining the"Corporation from proceeding with 4hf) work. An affidavifci-by Arthur Leigh Hunt supported the''application for injunction. The eutimg down of the 'trees on the reserve, he stated, would cause irreparable injury. At tho outset his Honour remarked that it was.really an ex parto application. •'/ .;•"=■'-•—■--■--■-•-■■•"■-••■"■>- .••■■ : ' ■ Mr. Martin agreed. He said he was. instructed yesterday that the. work had been commenced, and was'going on. As he expected to get an injunction at short notice, ho sent a letter to the City Council asking them to withhold proceedings on the work as the necessary papers were .being prepared, and that he relied on;;them not going on with it. He had received no answer. Mr. Martin quoted the reply of the Mayor as appearing in the Press, and stated that apparently no undertaking was given to stop tho work. THE CORPORATION'S ViEW.Mr. O'Shea agreed, that 'it ,was an ex parte application. . The-facts, ..he" said, were very clear 'as the council saw them, but not as' set. out in tho statement of claim. He agreed with the.first, three clauses -.of the statement 'of claim, but in regard' to the statement . thai ;jpartfiisqf;;he .t.eserve had been i"; used-'as . public Jstreetsj; :_claiinStl-t!iat-'tlxe\ Corppratidn-;;?used:-.Kent' -'torraee/• .and Cambridge terrace-as, a right. , Mr. O'Shea theniwent': on to deal with the fourth, allegation,.that the Corporation ; ha"3, without any ■authority of law, included/parta'bf the reserve in streets, and stated' that.the encroachments were in existence long,, enough for tho City Council to claim' them. Another encroachment was dono last year, and the City Council-did not get a proclamation. In regard to the present position, he said that certain of the work was being clone on what he claimed was absolutely street, and certain of the work' was being done on the reserve. 7'he City Council had been advised that it could^not proceed jyith any street works in the reserve liiitiL'it got a proclamation under section 12 of tho Land Act, 1924. The plans ware being prepared. The applicaion of the plaintiffs dealt with two matters. He took it that the application was to get an injunction against the Corporation interfering with what had been a de facto street for many years. Secondly, tho plaintiffs wanted to prevent tho council from doing street works on what was admittedly a reserve, and which tho council did not propose to do. The plaintiffs also asked for an interim injunction to prevent the Corporation cutting down trees in the reserve. . 'In connection with the latter,-he thought that it was clear law that a local body could cut down trees as' it "desired. The CityCouncil had no intention of doing street works on tho reserve till it got the land declared a street. CUTTING DO^N TREES. His Hehour referred to tho making of cross streets and so on, and Mr. O'Shea stated that the Corporation was not going to do that till it got an Order in Council. Ho. claimed that tho plaintiffs had no right to asJc for an injunction to prevent tho Corporation from cutting down trees. His Honour: "I do not know what rights you have on that." Mr. O'Shea replied that the City Council had control of the reserves. His Honour: "Do you say the City Council can go on to reserves and cut all the trees down?" Mr. O'Shea: "Yes." His Honour: "It's a dangeroua power." <• .Mr. O'Shea added that the council would use discretion,,, If tho injunction was going to deal with anything that was a de.facto street it :was going to seriously interfere with tho work of the Corporation. He went on to refer to tho fact tha t t thero was a certain amount of unemployment about, when his Honour interrupted, remarking that ho could not take that into consideration. His Honour said he could give tho Corporation quite an early date for tho hearing of the main action. Mr. O'Shea said he thought his friend could meet. him. When tho proclamation came down tho interim injunction would be removed. It was v said that the council had started on the work lief ore getting lawful authority, which was to got a proclamation under tho Land Act; tho plans were being prepared for that. If the Government

issued that proclamation, then the council had the right. The only ground ,-for tho injunction iwas that the council had not got the : proclamation.

Mr. Martin siii'd he had visited 'the reserve in tho lunch hour, and had observed the work-going on. The men woro digging up" the footpath, which was taken some, years ago out of the reserve. Ho saw blocks, and ho suggested thiit-.tho Corporation was goiiig to take sonic fresh part to make a footpath. If they were going to take any part of the ; reserve, they would have to take.lanct.on which trees were growing, and the consequences wero that tho councir proposed to cut down the trees. ... " His Honour observed that certain allegations had .been mado which entitled the plaintiffs to an. interim injunction. Mr. O'Shea said: he thought the At-torney-General should be a party. His Honour observed that he ought to be. ■;. ''■• Mr. Martin conteuded that the three inhabitants of the. city came within the terms of the trust. His Honour said he would make an interim order in the terms of the application, the parties to enter into the ordinary undertaking. The AttorneyGeneral, if he consented, could be joined later on. The of costs was reserved. ;;H