PAEKAKARSKI HILL.

Manawatu Standard, Volume XLIII, Issue 445, 10 July 1922, Page 5

PAEKAKARSKI HILL.

BY-LAW INVALID.

Am important judgment affecting motorlorry (raffle to and froiii Wellington city via Packakarild IliU wus dolivcivd by Mr J. L. Stout, S.M., «l Child on Thursday. Mis Worship said: "The defendants, U. J. Doyle ami W. Close, sue charged with broaches ol' u special by-lav. of the Hutt Comity on 18ili Jrdii’.ftry. 1922. It is admitted that the defendants drove over the Pac-kakariki lidl without obtaining .1 ponnit tts requested by the by-law and that the, lorries with their loads weighed upwards of throe tons, but it is contended th.;t the by-law in question is invalid liecause (1) it is ultra vires and (2) it is unreasonable. ! lie by-law docs' not iollon the delinition set out in section 139 of the Public Works Act. but seeks to prohibit the passage without permission over certain iiortiou of lh( i roads within the county ol • ‘ all v goods cart winch, with its load, shall weigh upwards of three tons. It will bo noticed that uo reference is made to the number of pairs of wheels of such goods curt. The bv-htw. therefore, is ultra vires if a goods end hud three pairs of wheels, and that being so it must bo held to ho had altogether. Apart from this point, it is inconsistent in that no provision is made tor a license fee where the load e-coeds five tons. A goods cart therefore which weighed over five tons, if granted permission to use the road, could not be charged the fee of £3. This is unreasonable. The County Council has no statutory power to refuse permission if they provide that an undertaking shall be given to make good any special damage and such undertaking is given. “In my opinion therefore the by-law is, apart from any question of unreasonableness, ultra vires of the council and invalid. I think also, without discussing the question in detail, that the by-law is urireasonable when tested by the principles laid down by Mr justice Denniston and Mr Justice Edwards in McCarthy v. Madden as an undue interference with a main arterial highway. The informations therefore must be dismissed with co»ts_ to the £3 3s on each information.” At the hearing Mr Hielop appeared for the Hutt County, Mr Moynugh for Close, and Mr Grant for the defendant Doyle.