CORNER OBSTRUCTIONS

Te Awamutu Courier, Volume 52, Issue 3771, 19 June 1936, Page 6

CORNER OBSTRUCTIONS

RESPONSIBILITY OF OCCUPIER. NO LIABILITY ON THE LOCAL AUTHORITY. Under the Public Works Act a local body lias power to order a propertyowner to cut back the hedges or trees on his property that are obstructing the visibility of a level crossing where a railway crosses the road, read a circular which was received by the Waipa County Council last Monday. The question of the County Council’s responsibility in the event of failure to enforce the provisions of the Act was set out in a legal opinion (Mr F M. Martin) attached, which read as follows:’— 1. Section 169, Public Works Act, 1928, provides that where trees or hedges overshadow any road or street so as to be detrimental to the maintenance thereof, or so as to obscure or partially obscure the view at any railway crossing, etc., or so as in any other manner to render that road dangerous to traffic, the local authority having control of the road or street may serve notice on the occupier or owner requiring him to 'remove, lower, or trim the trees or hedge to its satisfaction within two months. The section further provides that subject to review by a magistrate such owner or occupier is liable upon default to a fine up to £1 for every day upon which default continues, and that the local authority may have the work done at the expense of the owner or occupier. 2. In my opinion, the occupier or owner cannot be made liable for any accident occasioned by the view of the railway crossing being obscured by the trees. It is an offence either at common law or by statute to have growing on one’s land trees that obscure the view. The occupier is not breaking the law by the mere fact of allowing the trees to obscure the view of the level crossing, but, if the local authority serves him with a notice under section 169, then he becomes liable to a fine if he does not comply with the notice. He is not, however, responsible’ in damages to any .person who by reason of his noncompliance with the notice has met with an accident, for even if it could be proved that his failure to comply with the notice was a contributory cause of the accident, the damage incurred would be too rempte to give the injured parties a claim against him. , ... 3. Moreover, the fact that such Occupier has failed to obey the and thus caused injury to someone, would not of itself give rise to a claim for damages on the part of the injured person, apart from the foregoing consideration* of remoteness. 4. The local authority is not bound by law either to issue the notice requiring the trees to be removed or, in case of default, to cause the same to be removed. ‘The section is permissive, and not mandatory, so that the local authority, not having failed in a duty cast by law upon it, cannot be'made responsible for any accident which may be occasioned through the presence of the overhanging trees. 5. For the above reason I am of the opinion that no claim for damages on the part of any third party will be against the local authority by reason of its failure to enforce the statute, or against the occupier or owner because of his default in not complying with a notice under the Act, or because he has permitted the trees to obscure the view.