PUBLIC CONVENIENCES.

Taranaki Daily News, 15 May 1920, Page 7

PUBLIC CONVENIENCES.

QUESTION of erection in STPSETS. SIGHTS OP MUNICIPALITIES. NEW PLYMOUTH ACTION CHALLENGED. In the Supreme Court at New Plymouth yesterday, before his Honor Mr. ■Justice Chapman, what amounted to a test case was brought by certain persons who sought to secure an injunction restraining the New Plymouth Council from constructing a public convenience in Brougham Street, bemJ! eeu P ev °u and Powderiiam streets, lho objectors to the convenience were the Attorney-General in relation to Florence Mary Shaw (Auckland) and Claucl Horace Weston, and these were represented by Mr. C H. Weston, with nim Mr. J, C. Nicholson, while Mr. T. F. Martin (Wellington), legal adviser to the Municipal Corporations' Association of New Zealand, appeared for the Borough Council. All the evidence was given by way of affidavit and the case resolved itself into legal argument and citation of authorities in support of counsels' submissions.

_ Mr- Weston, in opening, said the question to be derided vas. firstly, as to whether the Borough Council had power to place such conveniences on or under the street: and if it had, whether the selection of the site was a proper and a convenient one under the Public Health

Act and;, further, if the convenience was constructed would, it become a public and a private nuisance. Mr. Weston said lie hoped the Court would approach the consideration of the matter nntramelled by any thoughts of the special privileges of municipal au- ' thoritics. Local bodies were not to be regarded as infallible and in some matters feelings often ran high and became quite partisan. Tt was therefore a safeguard to the public thai .they could refer the matter to some other authority His Honor interposed to say that as to the power to erect, he supposed it was known that such edifices had been erected in nil the cities of the DominionContinuing, Mr- Weston said there were four objections set out in the utatemeiit of claim. Firstly, whatever powers local bodies may have to erect such conveniences, they bad no power to place them on and under the street. If erected under the powers of Section "4 of the Public Health Act, then there wan no power in that to place them under the street.

Mr. Weston further submitted that the Legislature gave no power to local bodies to erect such a thing as proposed, whether a nuisance or not. and where power was given to interfere with the soil of a street that power was stated expressly. A'construction of the kind proposed would have the effect of stopping up a portion of the street and diminishing its width. If the Council did have the power to make, such an erection it was ultra vires, because such erection constituted a nuisance. The site was not a proper or convenient one within the meaning of tlie Public Health Act. Section !>4'.

It was pointed out that Brougham Street was only ">3 feet in widih, and that no street in the Dominion in which such a convenience had been erected was less than 0G feet in width. Taking away the measure of the footpaths the roachvav was "2 feet 4% inches wide, and when the convenience was taken into account there would be only 10 feet of roadway on either side of it, excluding the channelling, and this he submitted was not enough to allow two vehicles to pass. In reply to a question by the Judge, Air. Weston pointed out that the exact site for the convenience and the arrangement of the road had been altered at the last moment, also the re-arranging of the water-tables. It was proposed to do away with the water-tables as at present, and carry the roadway right un to the kcrbing. He remarked that there was no provision for such re-forming in the oritrinal specifications.

His Honor remarked that one side of the street could be regarded as the up side and the other the down side, and there would be ample room for traffic on either side of the convenience. It would be similar to streets in which t.rnmwav poles were erected in the centre of the roadway. /

Continuing, Mr Weston said Brougham Street was an exceptionally steep grade —he understood one in fourteen—and that fact made the diminishing of its width still more dangerous and unreasonable. Tt was the steepest grade of any street in town. Ho pointed out further that the junction of Devon and Brougham streets was one of the busiest points in town; the trams did not stop at the corner and in consequence the obstruction of the convenience would be more accentuated on that, account.

Mr. Weston further stressed the point regarding the doing away of the channels in Brougham Street, which he said was not: right, as in a rainy climate they were more essential in such a steep street than in others. Mr. West,on then dealt with objections to the convenience jn the place proposed from, the point, of view of tho attitude of women and girls to such things, and cjted authorities to show that in similar actionscourts had taken this aspect as to the site into account.

The Judge drew attention to the places in which conveniences had been erected in Wellington and Dunedin, where he said thev were in the most prom inen t thoroughfares. Finally it was pointed out that the decision to erect the convenience in the place proposed had never been unanimous, and he quoted the records of the Council to show that the selection of site had not been unaccompanied with dissension. Mr. Martin submitted the action of the Council was not ultra vires, as they had the power to erect such convenience either upon or under the street. He differentiated between Xew Zealand towns and the municipalities of England referred to in the cases cited for the plaintiffs, inasmuch as in the English boroughs local bodies had no rights to the ground below the stveets beyond p. pertain specified depth in Hie soil, TTe submitted that if the plaintiffs' position could lie upheld, that because something was erected upon a street which lessened the width of ft street, then objection might he made every time a lamp post was erected.

The .lndgc: "Tt mieht compel King Clinvie-- 1n dismount from his horse in Whitehall.'' Continuing. Mr. Martin said that notwithstanding the erection of the convenience the street would still be e unlihc liiolnvav. Unless the plnintifls h"d convinced the Court that the Council was ultra vires and that the convenience was an obstruction, then thev hnd no standOr.'e th° Comorotion was clothed \vith statutory power to erect mieh a

| convenience, -parties could not come awl" I' ask for an injunction. The remedy for tliem lay in compensation. In regjftis; to the site, lie sulmiitted the discretion, was with the local body and the Court' 1 would not usurp the rights of local' bodies in that respect. As to it being an obstruction, lie pointed out the height above "round would be 3ft Gin at the upper end and oft at the lower end. He said the plaintiffs had submitted no evidence by engineers or medical men as to the convenience being a nuisance, whereas in the nllidavits filed for the borough there was medical evidence and 'a body of engineering evidence thai there was no likelihood of the place being a nuisance, and further there was favorable evidence from those whose business it was to control traffic, on the question of obstruction. All the evidence bv the plaintiffs had that element of exaggeration that was always evident when anything new was proposed. The borough also tendered evidence as to complaints regarding the absence of such accommodation, and the consequent .committal of nuisances in public and private places. It was finally submitted that as the street was steep it was not greatly used by traffic, and further that its grade was a consideration matter of drainage. His Honor reserved his decision.