HEAVY TRAFFIC

Southland Times, Issue 18965, 12 June 1923, Page 5

HEAVY TRAFFIC

MOTOR LORRIES AND ROAD SOUTHLAND COUNTY’S BY-LAX UPHELD AN IMPORTANT JUDGMENT. Mr Justice Sim has forwarded his wri>» ten judgement in connection with the motion recently heard at the last sitting of the Supreme Court in which Mr G. Reed sought to have the amending by-laws in respect to motor lorry traffic pared by the Southland County Council at the end of last year quashed. Mr W. Macalister, on behalf of the Council opposed the motion. His Honour's judgment was ns follow®: In the month of March 1908 the Southland County Council made a byJaw dealing in Part V thereof with the subject of heavy traffic on the County roads. Clause 20 provided that Part V should apply to every vehicle or machine engaged in heavy traffic on any County road, and clause 21 enacted that on every vehicle or machine to which Part V applied there should be paid to the Council of the County a yearly license fee according to the scale therein set forth. This scale provided for license fees for traction engines carrying from £3 up to £2O, and also for license fees for portable enginers and other vehicles x “By another by-law made in 1922 the Council made certain amendments in the bylaw of March 1908 and added motor lorries to the vehicles engaged in heavy traffic in respect of which a yearly license fee should be paid to the County Council. This was done by adding the following sub-section to section 21 of the principal by-law: (9) On every motor lorry whose carry-ing-capacity weight together with the weight of such motor lorry is more than 3 tons but not more than 4 tons, £3O. (10) On every motor lorry whose carry-ing-capacity weight together with the weight of such motor lorry is more than 4 tons but not more than 5 tons, £4O. (11) On every motor lorry whose carry-ing-capacity weight together with the weight of such motor lorry is more than 5 tons but not more than 6 tons, £5O. (12) On every motor lorry wboee carry-ing-capacity weight together with the weight of such motor lorry is more than 6 tons, £75. Mr William Hayes Frew, a carrier in business in Invercargill, has moved for an order under section 12 of the By-law® Act, 1910, quashing the clauses of the amending by-law relating to motor lorries. The grounds on which the application ie made are:—(l) that clause 7 is unreasonable in that the fees thereby levied are ex* cessive and unreasonable, and, (2) that clauses 3 to 11 both inclusive are unequal and oppressive in their operation. The by-law is made under section 139 of the Public Works Act 1908 which authorises a local authority haling the care, control and management of roads to make by-laws providing for a yearly license fee on any vehicle or machine engaged in heavy traffic on such roads. The license fees made payable in respect of motor lorries certainly seem high when compared with those imposed on traction engines, but that is not of itself enough to justify the Court in saying that they are excessive. As pointed out by Williams, J. in delivering the judgment of the Full Court in Atkinson v Munt Cottrell and Co., 26 N.Z.LJR., 1153, 1160 the heavy traffic license fees is imposed in order to recoup the ratepayers to some extent for the cost of repairing roads cut up by heavy traffic. When making a bylaw on the subject the local authority has to determine what is a reasonable sum to fix as a fee so as to recoup the ratepayers in the way indicated. The estimate of the additional cost imposed on the ratepayers by the motor lorry traffic must necessarily be very rough, but so long as the Council exercises an honest judgment in the matter and does not impose a fee which is obviously out of all proportion to any possible burden imposed on the ratepayers the Court would not be justified in declaring the fee to be excessive. Now the evidence in the present case is that the Council did consider the matter very carefully. In his affidavit Mr Fraser, the chairman of the County Council, said that before making the by-law in question the Council gave the matter careful and anxious consideration in view of the additional burden cast on the ratepayers by the Council having to expend large additional sums of money in maintaining and repairing roads damaged by heavy motor lorry traffic. Mr Fraser said also that the Council was unanimously of opinion that the fees fixed by the by-law for heavy traffic motor lorries were reasonable, and that the Council was also unanimously of opinion that the revenue derived from these fees fell far short of being sufficient to compensate the Council for the extra expenditure occasioned by such traffic. This last mentioned opinion is supported by the evidence of Mr Basstian, Couney Engineer, who said in his affidavit that, he was satisfied that the annual expenditure in maintaining and repairing County roads made necessary by motor lorry traffic was many times greater than would be the total annual receipts for motor lorry license fees under the scale fixed by the by-law. This evidence has not been contradicted in any way, and I must hold that the applicant has failed to establish that the fees imposed by the by-law are excessive or unreasonable. I proceed now to deal with the other ground of the motion, namely that the by-law is unequal in its operation. It appears from the evidence that occasionally motor lorries from districts outside the Southland County make trips into the County. It has been decided that a vehicle which is used on one occasion only for the purpose of heavy traffic on a road is “engaged in heavy traffic” on such road. Wright v Hicks, 10 Gas. L.R. 518. Die result, therefore, is that a license fee for a year must be paid in respect of a motor lorry which is used on a County road on one occasion only during the whole year. This, it was contended, made the by-law unequal and oppressive in its operation. But this argument is based, I think, on a misapprehension of the legislation on the subject. The Act authorises the local authority to provide for a yearly license fee on any vehicle or machine engaged in heavy traffic. The fee, therefore, must be for a whole year, and the local authority is not authorised to provide for a license fee for any shorter period. The payment of the prescribed fee confers a right to use the ! particular motor lorry in’ respect of which it is paid for a whole year on the roads of the local authority. It rests entirely with the owners of the motor lorry to determine the extent to which this right shall be exercised during the period covered by the fee, and the mere fact that he may use the motor lorry once only during the year does not make the by-law unequal in its operation. In the case of motor lorries domiciled in the County no two motor lorries make exactly the same use of the County roads during the year. One motor lorry may use the roads twice as much as • another paying exactly the same fee, but , that circumstance does not make the bylaw unequal in its operation. The right of 1 1 user is the same in both cases, and so long as that is so the by-law, in my opinion, cannot be said to be unequal in its operation. Council for the applicant relied on the case of Watson v Grey County (1923), . N.Z.L.R. 386 as an authority in his favour, but the decision in that case does not ap- : ply to a by-law made under the special ' statutory provisions relied on in the pres- ; ent case. I think, therefore, that the applicant has , failed to establish that the by-law is in- . valid, and the motion is dismissed with > costs (£5) to the Council.