AN APPEAL ALLOWED.

New Zealand Herald, Volume LIX, Issue 18223, 17 October 1922, Page 9

AN APPEAL ALLOWED.

f 3 J WHARF DUES AT THORNTON. I BOARD'S PLEA SUCCESSFUL. Judgment in the appeal case, the i Whakatane Harbonr Board (Mr. Chalm- - ers) v. George Colebrook, of Thornton, 1 Whakatane (Mr. Grant), was delivered in } the Supreme Court yesterday by Mr. Jus- > tice Herdman. This was an appeal from - the decision of the magistrate at Whaka- - tane, which denied the right of the appellants to charge dues on goods delivered over a wharf on the ground that the board had not obtained permission to do so by an Order in-Council, as prescribed by section 162 of the Harbours Act, 1908. His Honor allowed the appeal. In his judgment Mr. Justice Herdman stated that in 1918 a wharf and shod were erected at Thornton by the Land Drain- , acre Department in connection with the drainage work at Eangitaiki. An informal permission was given the Harbour Board to use the wharf and shed, so long as such use did not conflict with the depactt merit's requirements. The appellants then r built a wharf which was linked up with . the Government structure. As the wharf had been erected across tidal waters and the structure stood in or upon the bottom or bed of the harbour, so the sanction of ' tha Oo'-ernor-in-Council was necessary before such a work could 'be proceeded | with. As in the case stated there was no finding that the requisite consent was not ; got before the construction of the work i was taken in band. His Honor assumed . for the purpose of his judgment that the sanction of the Crown was properly ob- - tained. The question was whether the , board was authorised by law to levy dues ! on goods passing over the wharf it had [ erected? The fact that the work undertaken by the board was connected with a structure erected by the Crown coujd not bar the board's claim eo lonjj as it was plain that the dues were claimed in respect of the user of the harbour work completed by the board. If, in such circumstances dues were irrecoverable, then it be argued saccessfully that a board could not claim dues for the use of a wharf erected with the consent of the Crown which vras in physical contact with Crown lands on the foreshore. Section 162 of the Act, relied upon by the respondent, in His Honor's opinion, had no amplication to this case; it related to wharves which were in fact the property of the Crown as distinguished from wharves erected by a harbonr board in pursuance of the powers conferred upon it by the Harbours Act, 1908. It was true that the structure was'a kind of hybrid creation, but as His Honor understood the case, th© dues claimed were levied in respect of the work constructed by the appellant board only. The validity of the by-law nnder which the board claimed to repovev the dues had not been challenced, and as the grounds relied upon by the respondent afforded no justification for the decision of the magistrate the appeal woul4 be allowed. Mr. Davis, instructed by Mr. Giant, ap plied for leave to apply to the Court of Appeal. His Honor: You will have to file a motion. Mr. Davis: Very well, Your Honor.