WHO IS THE OCCUPIER?

Stratford Evening Post, Volume XXXIX, Issue 43, 12 June 1914, Page 6

WHO IS THE OCCUPIER?

SHARE-MILKER OH OWNER? At the Court this morning the case; Inspector of Noxious Weeds v. C. Leathern, commenced at the previous sitting, was continued. Mr J. R. L. Stanford appeared for the Department, and Mr H. E. Lawrence for defendant. Mr Lawrence contended that defendant who was milking on shares, could not. he held to be the occupier of the. land for the purposes of the Noxious Weeds Act, and therefore could not be called upon by the Department to clear noxious weeds. The S.M. said the decision in the case would not govern all share-milk-ing agreements, each one of which could be made on a different basis. In some agreements the share-milker was a partner, while in the present, case the milker seemed to be very little removed from an ordinary Servant. English definitions of- oc6upancy did not necessarily apply, the Noxious Weeds Act being peculiar tp this country. Mr Lawrence quoted the section rom the Act, which laid it. down that an "occupier'' must have exclusive occupation. This provision was not fulfilled, as there were clauses in the agreement preventing the milker from grazing more than one horse on the farm and from shooting over the property. Counsel quoted a number of decisions on the question of occupancy in support of his contention. The S.M.: These decisions define occupiers under various other Acts. Counsel: But the definitions of occupany in those Acts are very similar to that in the Noxious Weeds Act.

Mr Stanford opened by drawing attention to the fact that in the agreement it was laid down that defendant should-keep down noxious weeds. He contended that the agreement in the ease must be taken as a lease, an English*** case laying it down that an agreement which expressed a determination to transfer possession was equal to a lease and could be acted upon as such equally as if it had been drawn up in the usual form of lease. The S.M.: But there is a clause in the agreement, which • states that .defendant is not to be taken as a tenant or partner of the owner. Counsel: It is ridiculous to make out a lease and then insert a clause saying: "This is not a lease."' Such a clauase would not alter the fact that the doucument was equal to a lease. Mr Stanford argued at length in the direction of establishing that the person in residence on land is primarily liable to the 'Department, no matter on whom that occupier had a right to call for -the doing of the work. In reply, Mr Lawrence contended .. r ... l i. _ r„„„«

that the agreement was not a lease and that defendant was a servant of the owner. In evidence, the Inspector (Mr A. F. Wilson) said that on December 22nd last he visited defendant's property, finding on it blackberry, ragwort and ox-eye daisy. There was nobody at home at the time, but a notice was left, and on Fern-nary 16th, when he paid another visit the ragwort was cleared, and some of the blackberry on the road. On April 28th a furthervisit was made, when he found that no more work had been done. On May 28th and June 4th lie paid further visits, finding that nothing bad been done. To Mr Lawrence: He had been all ov<-r the property on one occasion. Section 2 was not so clear generally as section 1. The bush had been down for some time, though scrub had grown up since. The work done on section 1 would certainly not satisfy witness. ' Defendant, in evidence, said that in January he cleared all the weeds on section 1. Section 2 was included in the agreement, but up till a month ago he did not know that. The owner used section 2 for dry stock, and witness did not use it. at all. Only on one .occasion had the owner allowed him to use the land, during rough weather.

To Mr "Stanford: He did not know section 2 was in the agreement. The agreement was read out and he did not know the section was included. It was only in April last that he got a copy of the agreement. Mr Lawrence said the notice from the Inspector merely specified a farm on Croydon Road. Defendant understood that he had cleared his farm. Thufc S.M. pointed out that it was not necessary for the occupier to be served with 'a notice. Personally he thought there would be some improvement if Inspectors did not consider offenders and summoned them as soon as they saw weeds. In the past the Deoartment had been rather too lenient. Decision was reserved.