KENT TERRACE

Evening Post, Volume CXII, Issue 106, 1 November 1926, Page 10

KENT TERRACE

PROPOSED WORK AT

RESERVE

FURTHER LEGAL ARGUMENT

APPLICATION FOR ABSOLUTE

INJUNCTION.

An interim , injunction having been made about three weeks ago, restraining the City Council from continuing its street improvement works .at the Kent Terrace Reserve, further legal argument iii connection with tho matter was heard in the Supreme Court this morning upon the question whether the injunction should be made absolute. Counsel for the City Council asked that the interim injunction be set aside on the ground that it prejudiced the application of the coun- • cil for a Proclamation in regard to the work. After argument lasting1 about an hour and a half the latter application was declined and the motion for the injunction to be made absolute was adjourned sine die. His Honour Mr. Justice Eeed was on the Bench.' Mr. T. F. Martin appeared for the plaintiffs, and Mr. J. O 'Shea (City Sdlicitor) for the defendants. The plaintiffs—A. L. Hunt (company director), E. C. Jack (company secretary), and W. Jack (accountant) claim that the reserves between Kent and Cambridge terraces were conveyed to the Corporation upon trust "to be ever used and appropriated as a public recreation ground for the inhabitants"; that the Corporation has, without any authority in law, included partn of the reservo in Kent and Cambridge terraces; that it has made streets across the reserve, and is now proposing to use further portions of the reserve as streets; and that for the purposes of these works it proposes to cut down valuable native trees on the reserve. NOT INHABITANTS OF WELLINGTON. The defence denied that the plaintiffs were inhabitants of Wellington, and said that they resided in Kilbirnie, where their dwelling houses were. Kilbirnie, the defence stated, was a suburb of the city of Wellington as now constituted, and though the plaintiffs' places of business were in the city, the plaintiffs were not inhabitants of the City of Wellington, as it was constituted at the time of the vesting of the Canal Reservo in the Corporation, namely, on 20th March, 1873, as Kilbirnie was then situated in the Hutt County, and outside the City of Wellington. The defence further stated that tho deed referred to stated that the Canal Reserve was "to be for ever hereafter used and appropriated as a public recreation ground for the inhabitants of the City of Wellington in such manner as in and by rules and regulations to be from time to time made in that behalf by the Corporation shall be prescribed and directed." STEPS FOR A PROCLAMATION. The Corporation admitted that in 1925 it included without authority in Kent terrace and Cambridge terrace portions of the reserve lying to the north cf Vivian street, but that instructions wore given to the proper officers to prepare the necessary plan for the issue of a proclamation, but owing to unexpected delays and unforeseen circumstances, this matter was not completed. The instructions to prepare the plan were given in July, 1925. The City Council claimed that the whole of the roads and footpaths outside the fenced portion of the reserve as they existed prior to the alterations made last year north of Vivian street, and as they existed on 30th September, 1926 south of Vivian street, were public streets. The council never had, and had not, any intention of carrying out street works on portions of the reserve that were inside fences on 30th September, 1926 (the date of the passing of the resolution dealing with the matter) until it obtained a proclamation • from the Governor-General under section 12 of the Land Act, 1924, declaring the portions of the reserve to be affected public street or streets. Immediately on the passing of the resolution, instructions were given to prepare the necessary plan to enable a proclamation to be issued. The plan had now been prepared, and on 20th October, 1926, a memorial was forwarded to the Governor-General asking him to declare street the lands required to be street to give effect to the proposals of the council. ONE-WAY TRAFFIC DESIRED. In order to enable it to have reasonable ground for enforcing one-way traffic in these two closely-congested thoroughfares, the council desired that two openings 66 feet wide should be made, in the reserve south of Vivian street, to enable traffic to cross from Kent terrace to Cambridge terrace and vice versa. STREET WIDENING. The council also desired that Kent terrace and Cambridge terrace should be widened to the extent of about six feet from Buckle street to the proposed new intersection of the reserve, already constructed as an extension to Elizabeth street, and to widen Cambridge and Kent terraces to the same extent for a certain distance southwards from Courtenay place. It was! also proposed to widen Buckle street, and the extension connecting Vivian street and Pirie street, and also Courtenay place. REMOVAL OF TREES AND SHRUBS. In connection with the removal of trees and shrubs,' the defence stated that the Corporation desired to cut down certain native trees and shrubs and plants on the reserve, but claimed that the trees were of no commercial value. The Corporation claimed that if it so desired, it was entitled to cut down, remove, or replace any of the trees, shrubs, and plants referred to, as they were planted by the Corporation, which was advised that it had full power to deal in any way that it desired with any such trees planted by it on any recreation ground or reserve. The Corporation, for a further dofence, contended that it was entitled to obtain" authority under the Land Act, 1924, to treat any portion of the reserve as street, and if it obtained a proclamation, no injunction could be issued that would restrain it from acting pursuant to the ploclamation. For a further and affirmative defence, thj Corporation said that the only person who was entitled to claim an injunction in the matter was His Majesty's Attorney-General. ATTORNEY-GENERAL AS A PARTY. Mr. Martin asked that an order be made joining the Attorney-General as a party; Mr. O'Shea said he did not oppose the application, but he quoted numerous authorities in support of his contention that the Attorney-General should have been joined when the interim injunction was being heard. He argued that the Attorney-General was the only person who was entitled to claim an injunction in the case, and on tho grounds set out in the statement of defence he moved to set aside the interim injunction. Nothing before the joining of the Attorney-General could count. His Honour said he agreed that it was necessary to join the AttorneyGeneral as a party in order to make

the proceedings complete. An interim injunction was only part of the whole injunction. Tho Attorney-General could be joined at any time in the course of the proceedings. Counsel submitted that there was no legalJ right to proceed until tho Attor-ney-General was joined, and that nothing could be done until then. After hearing further argument, his Honour ruled that the matter was properly constituted for the joining of the Attorney-General and that it had a relation back to the granting of the ori ginal interim injunction. ISSUE OF A PROCLAMATION. Mr. Martin then moved to make the interim injunction absolute. Mr. O'Shea: "I still maintain that the plaintiffs are not untitled to an injunction preventing us from cutting down trees and carrying out improvement works." He said that a proclamation was being asked for under the Land Act for the work to be authorised. His Honour: "How are you going to get a proclamation?" Mr. O'Shea: "By applying to the Government." His Honour: "Do you suggest that the Government is going to assist you in a matter which is a breach of trust1?" Under the 1924 Act, of course, authority could be obtained to make a road through any land at all, but in the present case apparently a question of breach of trust was involved. Counsel: "That applies to the whole of the Town Belt, your Honour. We have had at last three proclamations issued." He referred specifically to the extension of Britomart street on to the Town Belt and also to the new road to Brooklyn. His Honour: "You are asking me to assume that it is only a formality for you to apply for a proclamation and you will get it." Mr. Martin suggested that the interim injunction be made absolute until the council obtained a proclamation. Reverting to the question of breach of trust, his Honour said it seemed to him that the City' Council was the custodian of the property on the reservei and no doubt it could cut down trees in the ordinary way,where it was done reason ably. He could not see how it could be contended that the council could cut down any trees it liked. PROCLAMATION PREJUDICED. Mr. Martin said there was an unprinted rule that a local body should not carry out a grossly improper exercise of its authority. Mr. O'Shea said that so long as an injunction was pending,.' the Government would not consider the issue of a proclamation. If a direct intimation was made by the Court that the Government was not restrained by the injune.' tion in any way from proceeding to exercise its discretion it would facilitate matters. His Honour: "All I can do is to deal with the matter as it stands at present. You propose to commit a breach of trust, and in those circumstances I am entitled to restrain you from doing it.'' Mr. O'Shea: "If we are, sir." > His Honour: "Well, at present it appeal's to be so." Mr. O'Shea went on to say that tho council had started the work in anticipation of the proclamation. "Are these proclamations issued as a matter of course?" asked his Honour, "just as the council pleases? You are proposing to put a road through the Botanical Gardens." Counsel: "There is such a proposal." His Honour remarked that one could not help noticing such things. Mr. O'Shea said it was not contended that the issue of a proclamation by the Government was a matter of form. His Honour: "I understand that was practically what you said." Ho added that any injunction issued by the Court would not have any effect upon any statutory power the Government might have. There would be no breach of trust if statutory power existed. ATTORNEY-GENERAL' S OPINION. Mr. O 'Shea said the Attorney-General had informed him that he could not deal with the matter so long as an injunction existed. "If your Honour could make an intimation that the **Court holds that there is nothing to prevent the Government from dealing with the proclamation," he said, "that would be satisfactory in the meantime." His Honour said he would confine himself strictly to the case as it appeared at the present. The council was doing an illegal action until it had a proclamation, and he did not see that an injunction tied the hands of the Go v - ernor-in-Couneil. Probably the matter could be met by an adjournment, in which case he was prepared to make an injunction absolute limiting the authority of the council in regard to the destruction ot shrubs and plants. As custodian of the reserves, the council was entitled to make all necessary alterations and improvements, which might possibly involve cutting down trees, but it was not entitled to do it wantonly. Mr. O'Shea: "I understand that what is wanted is that there should be some order of the Court. As long as there is an interim injunction the Government won't move.'' "I can't help that," his Honour replied. "I cannot dictate to the Government. All I can do is to deal with the matter as it stands at present. You are doing an illegal action, and the Court restrains you from doing it. If you make your action legal the Court can do nothing in the matter, and the injunction must lapse." "WHAT THE COUNCIL MIGHT DO." Counsel suggested that the injunction might be made absolute until the proclamation was obtained. The question of trees could stand over. 'Ho submitted that the council had a right to control the trees. His Honour: "The only thing that makes me fearful is what the council might do. You might say the trees aro o± no commercial value." Mr. Martin said the plaintiffs would certainly resist the cutting, down of the whole avenue of trees. They could not be grown in a night: "There is nothin| less valuable, as a tree than acabbage tree," said Mr. O Shea. "They are a perfect pest so tar as drains are concerned. In . the garden they are the same. They cause more trouble than anything else in blocking our drains. I hold they are of _o,r^7r ial, Value' Ther are a ™ry doubtful benefit to the streets." If the Court made a declaration in the meantime, he again suggested, the council Zff thT 1 . the AtorW-General and see if the declaration satisfied him. MOTION ADJOURNED SINE DIE. After further argument, his Honour said he thought the best procedure was to adjourn tho matter sine die, and in the meantime to allow the interim injunction to stand. The matter could be brought up again if necessary. Mr Martin said that in that case he would ask for the question of costs to bo reserved. He said he could show that the plaintiffs had been absolutely driven into Court. His Honour declared the matter adjourned sine die, with the right to bring it up again at ton days' notice. Brief discussion ensued concerning the period of notice, and his Honour remarked that the alternative was to make an order for the injunction to be made absolute. • "In that case," said Mr. O'Shea, "I would want to argue about the trees." His Honour: "How does that affect you?" Mr. O'Shea referred to the unemployed, and said the council wanted to put them on the work on the reserve. His Honour suggested that the worst

of the winter unemployment was now over. "There are any amount of streets that might stand a lot of work on them," he added. Counsel replied that the money for unemployment relief was not coming out ii rates, but from a special fund. His Honour said he did not think he could do anything else in the circumstances. The only alternative was an order absolute. The application to rescind the interim injunction was accordingly refused, and that for tho injunction to be made absolute was adjourned sine die.