REPORTS AND LEGAL OPINIONS

Nelson Evening Mail, Volume LXI, 8 June 1927, Page 5

REPORTS AND LEGAL OPINIONS

On 17th February last the City Engineer (Mr J. G. Littlejohn) completed a report on the whole question of the Rocks Road and, in view of its serious nature, ("it required to be dealt with at. the earliest moment," said the then Mayor, Mr W. Lock, An informal ■ meeting of the City Council was held on the Monday afternoon following to consider' the matter, when it was unanimously decided to endeavour at once to obtain .permission for the Public Works Department to allow the district engineer at'Nelson to collaborate with the City Engineer in the preparation of a report and scheme and furnishing an estimate of the cost. The Mayor also stated—

"The City Engineer ia of the opinion that the state of the cliffs at the present time is more dangerous than he has ever known it to be previously. He considers that the vibrations caused by the heavy loads and speed of motor lorries passing along the road have been a factor in loosening the material on the cjiff."

MR LITTLEIOHN'S PRELIMINARY REPORT

As directed I have interviewed Captain Moncrieff of 'The Cliffs with regard to the Rocks Road. He informs me that he will offer no objection to the putting in of a subsoil drain along the top of the cliff for the purpose of intercepting the underground soakage and stipulates only that the carriage drive, along which it would be necessary to cart materials, should be maintained in good condition during the progress of the work and properly reinstated on completion, also that sufficient protection be maintained along the trench to ensure that his cattle do not get into it and that the materials excavated be replaced and the surface made good as well as circumstances will permit. With regard to additional land for the road in order that the cliff may be cut back, he will meet the Council in any way possible, requiring only reasonable compensation for the land t'iken. The cost of the suggested drain is problematical until reliable information can be obtained as to the depth necessary to provide efficient drainage. It would certainly not bo less than £IOO plus repair of damage to the drive. In my opinion . it is not practicable to carry out any work on the face of the cliff except by benching down from the top. In order to do this a width of at least 30 feet back from the edge of the cliff would be necessary and a further 10 feet clearance for fencing. 1" places the slips have already encroached on the pro perty and elsewhere the average width from the. edge of the cliff lo the boundary (ioes not exceed 10 feet. The total land required would be about half an acre. The length to be dealt with is 12 chains, and the quantity of material to be removed would be approximately 700 cubic vards per chain or a total of 8400 cubic yards. Owiifg to the risks attached to the work a high rate, of payment would probably be demanded, and 1 do not think the Council could

oxpect to got the material quarried for less than 3/6 a yard. The present slips are being removed for 3/- ;i yard, plus the cost of breaking up the largo lumps. The cost of removing the overhang would, therefore, he approximately 7/a cubic vard or a total of £29-10. Those who advocate the use of explosives evidently do not appreciate the fact that the whole hill is already shattered and violent disturbance should be avoided as far as possible. Blasting is certainly an easy wav of removing the overhang, but it is likely to bring down large quantities of material unnecessarily, it would render the face dangerously unsafe for workmen, and the strata would bo so shaken that further slips would

not be a probability but a certainty and the raid be little safer after tho work was done than it is at present. In any estimate of the probable cost of the work allowance must be made for the reinstatement of the damago to the road, which must result from the dropping of large masses upon it from such a height and heavy traffic arising from its removal. 1 cannot gee that any appreciable, good can be done for any expenditure Jess than £3500.

MR MAY'S REPORT

Appended is the Resident Engineer's report: — "Acting under instructions from my Department, I inspected, in company with Mr Littlejohn, the cliff face on the landward side of the Rocks Road near the city boundary. The height of face is approximately 120 feet, the material in the lower half being a sandy papa and the over-lying remainder ' being mainly a loosely compacted sandstone. The existing batters on the cliff face now average three-quarters to one on the papa strata and five-eighths to one on the overlying sandstone. The sandstone strata* dip at an angle of 80 degrees away from the road, and as they are full.of joints only slight weathering is necessary in order to loosen and render liable to'fall comparatively large blocks of this material. These potential slips are a source of danger to the public using the road, and if not checked are liable to make serious inroads on the private property at the back. "In my opinion, the only economical 'method of dealing with the'danger is to cut back the sandstone strata to a resultant batter of approximately one-half to one. This batter should be obtained by benching down from the surface; the existing "heads" to be made use of and followed as far as practicable. On no account should explosives of a shattering nature be employed to further this work, as the use of such would only cause a recurrence of the trouble. As a further safeguard, it would be advisable to put in a drain on the top side of the cliff to cut off the surface waters. While the cutting down of the face is in hand, special precautions will be necessary to protect the public. I would suggest that the road be closed at least until the preliminary excavation has been completed, that is, until all the fissured material has been brought down on to the road and reasonably safe benches have been made. "The scheme outlined above practically agrees with that of Mr Littlejohn, and as he has dealt with the financial side of this work there is no need for a further estimate."

A GENEROUS OFFER

Inquiries were made from Captain Moncrieff, owner of the land on the top of the Cliffs as to what terms he would be willing to convey sufficient of his land to make a safe batter. The inquiry was met in a very generous spirit by Captain Moncrieff, who offered to convey land to the value of £2OO free of cost, subject to certain very reasonable conditions. The offer was submitted to a meeting of local bodies concerned and the position discussed all round. A resolution was passed that in the opinion of the conference it is highly necessary to carry out the work to make the cliffs safe, and that the question of finance be left to each of the local bodies concerned.

AR LITTLEJOHN'S LATER REPORT

Appended is a later report submitted to the City Council by the Engineer (Mr J. G. Littlejohn) concerning the condition of the cliffs on the Rocks road: —

"A survey of the cliffs has been made extending from the Basin Reserve to Magazine Point. "As a matter of fact there is no part of the cliff overhanging the road, but in places the foot of the sandstone lias fallen away, leaving the face overhanging its base on the papa, and it is this sandstone overburden which constitutes the main danger. Except for a short distance adjoining the town boundary and at Magazine Point the face is at a much easier batter than is generally considered necessary for safely, and no dangerous slip need be expected. On this part there is, however, a quantity of loose material whiph should be cleaned down_ and a number of trees growing on the slope should be removed. "I find the least that can be done to make any appreciable improvement, so far as what appears to be overhanging and considered dangerous, is to cut it back to'a batter of half horizontal to the perpendicular. The quantity to be removed within the town boundary is 13.200 cubic yards and in the Tahuna district (1) adjoining the town boundary 4700 cubic yards; (2) at Magazine Point 800 cubic yards; (3) between Nos. 1 and 2, 1000 cubic yards. It is obvious that the removal of quarried material from the road cannot be proceeded with underneath or past the point where quarrying is in progress, and that no traffic can be permitted to use the road While quarrying is going on, nor could it get past until the material quarried has been removed. It may be taken for granted then that the road must be cleared during the,progress of the work, and thai the expeditious carrying of it out is therefore one of the main considerations.

"I would like lo point out that the risks attached to the work are considerable, there are statutoiyreuiremenfsq to be complied with which, do not leave the person in charge to go about it in his own way, and there is the urgency of the work above mentioned, all of which must add materially to the cost. Assuming that a largo lorry could shift 100 cubic yards a day, it would require, six men to fill it and abone six months to clear the road, if there were no delays. But there are bound to be delays of one sort and another, and ii may readily be admitted that it is not a job for a few men and one or two vehicles, but for every man and vehicle that can bo procured. "It is not to be expected that suitable men find a. sufficient, number of vehicles will be available at ordinary rates lor a dangerous rush job of this description. It seems to me the only way lo keep the work moving is to alternate. the quarrying day about between the ewo ends and to dispose of the spoil half lo the town and half to Tahuna. "I estimate as follows:

"Town portion: Quarrying 13.200 vards at 3/6, £2310: cartage lo King's Acre. 9800 vards at 4/6, £2250; cartage to Sands, 3400 vards al 3/-, £510; total, £5070.

Tahuna portion: Quarrying 4700 yard: at 3/6, £825 10s: 800 vards at 2/-,'£Bo 1000 yards at 2'6, £125: cartage to Tn buna,' 6500 yards at 3/-, £975; total £2005 10s.

"As an offset against the acrting a proportion of the cost might be recovered for any filling in done." In reply to the Mayor, the Engfneer said his estimate was perhaps on the high side, and it might be found that the cost of quarrying and carting could he materially reduced.

A LEGAL OPINION

The Council instructed the Town Clerk (Mr G. A. Edmonds) to submit a case for Mr Martin (counsel .to the Municipal Association) for his opinion as to what would be the Council's legal position f-s regards liabi'tily in the event of a claim for damages being made against it as a result of a fall i»f the cliffs. The case us put by Mr Edmonds was as follows: "A road which is known as tho Rocks Road runs through part of the City of Nelson and connects with the main road running through tho Tahunanui Town District, which is a continuation of it. The portion of tho road running through tho Town District is a declared Main Highway under tho Main Highways Act."

"The road runs parallel with tho sea-shore, and was constructed in or about the year 1894 so as to give a main road out of the city into the surrounding country. It was paid for proportionately by the Nelson City Council, the Waimea County Council, and the Richmond Borough Council, the Government contributing £IOOO and

free prison labour. The Tahunanui Town District did not then exist, and from the time of its completion until the formation of the Town District a few years ago tlfe road was maintained, as to tho portion within the city boundary, at the cost of the City Council, and as to the portion outside the boundary at a cost 'of the Waimea County Council. Since tho formation of the Town District until the passing of the Main Highways Act, it has been maintained in the same manner by the City Council and the Town Board respectively. The City Council continues to maintain the portion within the city boundary which extends for a length of about 27 chains. "In order to construct the road it was necessary to blast away tho rocks. No batter was formed, the face of the rocks being left practically perpendicular. The rocks are composed of soft, sandstone and papa, which is of a very porous nature. The action of the weather and surface water' upon this material has caused a good deal of serious erosion from the face of the cliffs, causing them, to dangerously overhang in places, and the soakage getting in behind has at different times been the cause of many serious and dangerous slips, bringing tons of debris down on to the road."

"The road carries the bulk of tho traffic into the country in that direction, and quite recently a very heavy fall came down, and only just missed falling on some passing motorists." "The cliffs form part of the freehold of the road. At the top there is private property, which by reason of the slips is encroached upon in places by the edge of the cliffs and there is not now sufficient land at the top to allow for a. batter to be made, and to do this it would be necessary to acquire some of this private land from the owner either amicably or by means of the provisions of the Public Works Act." "The City Council h»s obtained reports from its Engineer, and also from the Government Engineer, that the present condition of tho cliffs is highly more so than at any other timo previously. It is estimated that the cost of making the Nelson City portion of the cliffs (about 12 chains) reasonably safe and of purchasing the necessary* land, would amount to several thousands of pounds, which it would be impossible for the Council to find except by raising a special loan. The proceedings for acquiring the land and raising a loan " would necessarily take same time, and meanwhile the danger exists of a serious accident tubing place, possibly resulting in loss of life." "Counsel is requested to advise: — (1) Would the Council be liable in the event of a fall of rock injuring or killing passengers along its portion of the road?

Answer. —If evidence of engineers is clear, and can stand cross-examination that the Nelson portion of the road was properly and safely constructed in 1894 as regards safety of the cliffs and that it was not from an engineer's point of view dangerous or negligent to leave the cliffs cut perpendicularly, then I am of opinion that the Council would not be liable for accidents aris ing from slips in the cliffs, and in that case I answer Question I in the negative. But if the above described engineering evidenco cannot be given or supported, then 1 am of opinion that the Council would probably be held liable by a jury, and that the verdict would not be set aside by the Court if there was engineering evidence both ways.

(2) Would the erection of notice boards (to be lighted at night time) warning passengers of the danger and stating that if they use the road they will do so at their own risk—

(a) Be an admission of liability on the part of the Council or . (b) Be sufficient to protect the Council against any'claim?

Answer.—The notice should be set up and advertised. It would, however, be neither an admission of liability nor a protection against claims. (3) Assuming there would 'be liability, who would be liable for the Town District portion of the road, the Town Board or the Main Highways Council?

Answer.—lf there is any liability in respect of the independent Town District's portion of the road that liability would fall on the Main Highways Board unless it has delegated control of the road to the Town Board, in which case the liability would be on the Town Board. See Main Highways Act, 1922, 5.9. (4) Could the Council be held to be liable for misfeasance in the original construction of the road, or for nonfeasance with regard to its condition subsequently? Answer.-—The City Council, if held

liable, would he so held as for mis

feasance, in the original construction of the road. If originally safely constructed the Council would not be liable for its nonfeasance in not subsequently protecting the cliffs, but if not originally safely constructed the Council would be liable for the proper protection of the cliffs in the way of maintenance.

(5) In the event of it being neces

sary to temporarily close the road, what would be (he process to be observed. Would it be necessary to pass a by-law? Answer.—The Council could by resolution publicly notified and by notices al, the barricades stop traffic on its portion of the road whilst it. is being repaired. Sec M. C, Act, 1920, 5.172 (4), (i).

The queslion of finance is one which will exercise the. minds of all local bodies and with (his in view the. Town Clerk obtained a further opinion from Mr Martin as to several questions which he. considered likely to arise. The questions ami answers arc as follows:

(Q.l) if the Council decides lo carry cut and jiay for out of its ordinary revenue this year any work that may be

necessary in order lo make the cliffs safe, could it raise, a. special loan to repay to the general account any monies that have, been so expended from that account ? (A.) No. A loan must be for a future work. Altr.rncv-General v. Napier Borough (1917) X'.Z.L.R. 292 C.A. (Q2.) In the alternative, having commenced to pay for the work from General Account could the Council at the end of the year raise a, loan to pay for any further expenditure that might be necessary ?

(A.) Yes. (Q. 3) 1 he work being an urgent one rendered necessary by the action of the elements, would it. be a work of emer-

gency coming within the scope of 5.7, Local Bodies Finance Act, 1921-22, for which a. loan could be raised without a poll?

(A.) No. Section 7 applies only in rases of _ "Hood, earthquake, lire or other accident." Jn the. present caw the danger lias, I understand, arisen from the action of the elements over a considerable number of years.

The important, quest Ton is the lastone. This, as will have been seen above, is specially referred to by the Mayor. If a big slip occui's it will come under the category of "other accident." The expert' advice is that it may occur at any moment. Therefore, Mr Moffatt is seeking the Government's permission to do the work before serious trouble occurs—in oilier words to shut the stable, door before the horse is stolen. The Mayor trusts there, will be a large attendance at the public meeting in order that any points in doubt may be thoroughly explained.