FOOTWAY BLOCKED

Evening Post, Volume CXIX, Issue 151, 28 June 1935, Page 7

FOOTWAY BLOCKED

ERECTION OP CONVEYEE

MAGISTRATE'S VIEW

BREACH OF BYLAWS

Charges of offences against the Wellington City Corporation's bylaws and the Motor-vehicle Regulations, brought against New Zealand Fisheries, Limited, and William McHugh, a driver employed by the company, were dealt with in a reserved judgment delivered by Mr. W. F. Stilwell, S.M., in the Magistrate's Court yesterday. The Magistrate expressed the view that the offences had been established, and the defendants were each convicted and fined £5 Is and costs. The amount of the fines was fixed in view of the fact that counsel for the defendant company and McHugh gave notice of his intention to appeal against the decision, stating that the matter was one of great importance to the company. Security for the appeal was fixed at £10 10s in the case of the offence against the Motor-vehicle Regulations, and £7 7s in the other case.

Mr. E. M. Sladden appeared for the defendants, and Messrs. J. O'Shea and M. F. Luckie were counsel for the Wellington City Corporation.

In delivering his judgment, the Magistrate said that the defendant company was charged with an offence contrary to clause 15, part 1, Wellington City bylaw No. 1, 1933, in that on December 3. 1934, at Wellington, it did without the prior authority of the Corporation, cause an obstruction in or over Cable Street by erecting a conveyer across the footway of the street.

McHugh, a driver employed by the company, was separately charged that on May 9, 1933, being the driver of a motor-lorry, he did permit part of it to be on the footpath of Cable Street contrary to Regulation 13 (6) of the Motor-vehicle Regulations, 1933.

On the date in question, the company suspended a conveyer at a height of sft from a lorry drawn alongside the curb to the ports on'the south side of the building. Boxes of fish were con* veyed on rollers by gravitation into the freezing chambers and it was alleged that'the process caused interruption- and annoyance to foot traffic and that no permit had been obtained therefor. ' The facts on which the second charge were based were briefly that the lorries of the defendant crossed the footpath and backed close to the south wall for the purpose of loading into or from the ports, that pedestrian traffic was impeded thereby, and that this was an offence under Regulation 13 (6) of the Motor-vehicle Regulations, 1933. The Magistrate said the defence con* tended that the regulation. issued in pursuance of the Motor-vehicles Act was invalid, because (a) it was. ultra vires; (b) repugnant to common law and statute law; (c) unreasonable; (d) that it was permissible to act in the way alleged, because Regulation 13 (7) authorised it where there was no other access available. If the regulations were held to be valid, then they were subordinate to the paramount-right of the company to access to its premises as an adjoining owner and the company's, use of the road was a reasonable exercise of its right. It was also stated that the methods adopted by the company were the only means available to it of handling their fish either to or from cold storage. OBSTRUCTION CAUSED. "I am satisfied that, the conveyor method causes an obstruction ini-that it. compels" pedestrians rtd"-re-sort to the carriageway or to stoop and pass under it, and that the presence of stationary vehicles across the footpath does obstruct the passage of pedestrians, forcing them to use the carriageway," stated the Magistrate,,. Referring to the contention that the regulation was ultra vires, the Magistrate said that Section 36 of the Motorvehicles Act, 1924, provided that the Governor-General might by Order in* Council make . regulations "gMejrajiyrelating.to the use of' motor-vif&iCj^s: and prescribing th§. conditions :uiideir; which they might be used,"'and '-gene--rally making provision for all matters deemed necessary for the due administration of and or giving full effect to the provisions of this Act." "In my view the particular regulation involved is authorised by and is within the purpose of the Act," said the Magistrate. "If is clear that its purport is to control the use of a motorvehicle when using any road." It was further contended that there was nothing in the Motor-vehicles Act, which purported to take away any private rights .which the defendant had. The decision of Mr. Justice -Luxmore in Vanderpant' v. the Mayfair Hotel Company was in point.. The iJudge had said, "Speaking generally, the public, have the right of. free and unbbstructed passage over the whole of a public highway. The • owners of premises abutting yield to the public rights and the Court will interfere by restraining the continuance of the obstruction." The rights of the defendant of ac.cess to his premises, and of the public in the-passage of the highway were , mutual. All that the regulation under consideration purported to do was to regulate in the interests of the public using the highway the manner in which motor-vehicles approaching the premises should be handled. A further point was made that the regulation was repugnant to section 175 of . the Municipal Corporations Act, J933, in that by that section, the feesimple of roads and the control of streets.was vested expressly in the Corporation, and that as a result the regulation could not apply. . NOT ULTRA VIRES. "In my view this proposition "is not tenable," continued Mr. Stilwell. "Section 167 Of) of that Act provides that 'the power to make bylaws regulating, controlling, or . prohibiting vehicular traffic, and licensing and controlling vehicles whether plying for hire or nqt shall be subject to the provisions of-any Act dealing specially with any particular kind of traffic, and any particular, kind or kinds of vehicles.'"

, .Section 36 (5) of the Motor-vehicles Act provided that any bylaws of a local authority inconsistent with or repugnant to any regulations under that Act in the same locality relative to motor-vehicles should be deemed to be subject to the regulations, although such regulations might have been made under some other Act. "I hold therefore that the regulations are not ultra vires to the Act," said the Magistrate. "In my view the offences have benn.established, and the defendants will be convicted."