A BURNING QUESTION

New Zealand Times, Volume LII, Issue 12093, 21 March 1925, Page 5

A BURNING QUESTION

ACCESS TO ROSENEATH RECENT POLL ON LOAN AND PROPOSED EXPENDITURE. IS COUNCIL’S ACTION ULTRA ‘ VIRES? The controversy between the City Council and Roseneath over the proposal of the council to construct an inclined elevator or lift at Roseneath was brought to a head in the Full Court yesterday when the AttorneyGeneral and Robert William Burbidge, merohafit, and Robert Henry Stiokney, printer, took action against the Mayor, councillors and citizens of the City of Wellington. Mr D. S. Smith appeared for the plaintiffs. Messrs Burbidge and Stickney, and Mr Taylor watched the interests of the Attorney-General. The defendant corporation was roS resented by Mr J. O’Shea, with him Ir L. C. Hemery.

STATEMENT OF CLAIM LOAN MONEY AND INCLINED TRAMWAY. "COUNCIL’S ACTION ULTRA VIRES.” The specific claims of the plaintiff's were as follow: (a) A' declaration that the expenditure of any loan moneys raised or to he raised pursuant to':pro; posal 2 (street works) upon an inclined tramway at Roseneath as resolved by the oouncil is ultra vires; (b) a declaration that the deed of conveyance is void in that it does not comply with she provisions of the Wellington City Reserves Act, 1871, and the land comprised in the deed was. the property of the Crown; to), (d) and (e) * declaration that the defendant corporation was not lawfully entitled to use apy portion of the lands comprised in the deed of conveyance previously mentioned; and (f) that a writ of injunction be issued restraining the council from (1) expending any of the loan moneys raised under proposal 2 (street workq) upon an inclined tramway at Roseneath and (2) from proceeding to construct the inclined tramway and to carry oat the resolution of the council upon any portion of the lands comprised in-the deed of conveyance. THE DEFENCE "AN INCLINED ELEVATOR.” The defence denied thaVthe corporation friended to expend the moneys referrecy to on the .construction of an inclined to Roseneath. but it wai admitted that it proposed to expend such moneys in meeting the construction of an inclined elevator or lift to Roseneath, and claimed to be authorised so to expend such moneys. It was further denied by the defence that the corporation had resolved to construct an inclined elevator, hut it admitted, the resolution-to construct an inclined elevator or lift on the site proposed and, by so doing, had declared the manner in which toe land was to he applied foj toe use and benefit ef the inhabitants of the city. The defence emphasised that it was not toe: intention of the council to construct “an inclined tramway” hut proposed' to construct an ‘inclined lift,”

With to the question of toe proposed site being on toe town belt, the defence made . four submissions in support of its legal right to use toe land. EXPENDING OF . LOAN MONEY. .Mr Smith in opening His address’to toe jberioh submitted that toe City Gpdncil Hid no authority to expend «hy loan moneys raised for street 'works on a tramway project, and he Ago contended that the council had qd authority to construct a lift either. In 1920 the council took a poll on time proposals under the Local Bodies Loans Act, and all proposals were carried. On Maroh 15th, 1924, toe defendant corporation passed a resolution stating what it was going to do in order to give improved access to Roseneath. In reply to Mr Justice Ostler counsel submitted that *fcbo corporation oould not acquire the land under the Public Works Act as tne ground was town belt. f "I submit., to .Your Honours,” said Mr Smith, “that out of the facts presented two questions arise: (1) Is the council lawfully entitled to spend the' loan moneys raised for street works for improving the access to Roseneath in toe manner resolved upon by toe. cort ration on March 20th, 1924? (2) Is s oouncil lawfully entitled to proceed to construct the works mentioned upon this particular portion of the town belt allocated by the council for the purpose. “I am not attacking the validity of the poll, but what I am concerned with fa the interpretation of the words with reference to improved acoess to Roseneath.” Mr Justice Reed: Is there any allegation of misrepresentation concerning the loan proposals to the ratepayers? Mr Smith said he had not gone into the question. Referring to the press advertisements announcing the loan, Mr Smith stressed the fact that the advertisements emphasised the work of street paving that was contemplated. He submitted that the advertisement announcing the loan proposals and the voting papers for same were the documents for interpretation by toe court. “SIMPLY A STREET WORK.” Mr O’Shea, for the corporation, submitted that the proposal to provide an elevator or lift to give better access to Roseneath was street work, as was, in counsel’s submission, fully supported by the Act. With reference to the voting paper, Mr O’Shea said it clearly set forth the purpose of the council with regard to the works it was intended to carry out. The document was properly punctuated and coUld be read by any intelligent voter without the issues set out on the paper being confused. He repudiated the contention of plaintiff’s counsel that the council had no authority to carry out the work proposed. It was in no sense a tramway but work which definitely came under the classification of a street undertaking. Mr O’Shea quoted legislative Acts in support of his contention that the council had the power to carry on the work. Decision was reserved.