TARRING STREETS

Manawatu Times, Volume XLIX, Issue 2732, 14 July 1925, Page 5

TARRING STREETS

Palmerston North Borough Council’s Appeal SIGNIFICANT DEMANDS BY JUDGES. (Special to “Times.”) WELLINGTON, La!st Night. Has a Borough Council, in addition to its right to insist that a person who sub-divides his land for sale, shall comply with the requirements of Section 116 of the Public Works Act, 1908, as to road construction, the right also to insist that he shall deposit with the Council a sum of money sufficient to enable the Council, as and when it thinks fit, to tar and sand the roads, and the footpaths so constructed? This was the question upon which the Chief Justice (Sir Robert Stout), Mr Justice Sim, Mr Justice Herdman, Mr Justice McGregor and Mr Justice Alpers hoard argument yesterday in the Court of Appeal.

The case was an appeal by the Mayor, Councillors and Burgesses of the Borough of Palmerston North from a judgment of Mr Justice Reed in favour of James John Casey, of Palmerston North, stock dealer, The grounds of the appeal were til at the judgment delivered on July 9, 1925, was erroneous in point of law and in matter of fact. According to the statement of claim, Casey was the owner of a block of land in Palmerston North which he sub-divided for purposes of sale. The plan of the sub-division, showing the several allotments and their dimensions and the street proposed to be made, was approved of by the Council. Later, a plan of the street, as provided for by Sub-section 2, Section 116, of the Public Works Act, 190 S, was also approved by the Council. Casey formed and metalled the street and did all things necessary to entitle him to dedicate it as a public street. The Council refused a certificate of dedication until Casey had deposited with it £465, the estimated cost of tarring and sanding the street and foothpaths. The amount was deposited under protest. The Borough Council based its case on Section 181 of the Municipal Corporations Act, 1920, and the bylows of the Borough, and gave as a reason for stipulating for the deposit of the cost of tarring and sanding the footpaths and road, instead of requiring the applicant to do the work himself, that it was necessary to allow the newly formed footpaths and road thoroughly to settle before the tar was applied. It was contended also that permission was given as for a "private street” and that the by-lows included provision for tarring and .sanding. Mr Justice Reed, in the course of his judgment, expressed the opinion that the street under discussion was a “new” and therefore a public street and not a “private” street, as contended by the Borough Council. "No application,” he said, "was before the Council to grant permission to lay out a private street. A local body cannot arbitrarily refuse to accept the dedication of a road or street, nor can It impose conditions not authorised by Statute. It is manifest that the condition with regard to tarring and sending the footpaths was imposed by the Council under the mistaken impression that it was entitled to treat this as a private street and on that assumption, rthough it had unlimited powers to impose such conditions as it pleased. I think lam justified in finding, as I do find, that the footpaths are constructed when the specifications have been compiled with. I think, therefore, that the plaintiff is entitled to recover /the money deposited for tarring and sanding the footpaths.” The Chief Justice interrupted the argument of Mr Gray, K.C., yesterday, to remark; "I think it a great pity the Corporation did not keep the law strictly and say that "if you do not make the street in accordance with the by-law, we will not give permission to open the street at all.” This case has come about because the Corporation has not kept to the law.”

Mr Justice Sim characterised the position as one in which “the Borough is paid a sum of money which it may hang on to for 50 years.” The Court reserved its decision. Mr A. Gray, K.C., and with him Mr F. H. Cooke (Palmerston North) appeared for the Borough Council and Mr H. R. Cooper (Palmerston North) for the respondent, J. J. Casey.