LONG CONTROVERSY ENDS

Bay of Plenty Beacon, Volume 06, Issue 96, 6 August 1943, Page 5

LONG CONTROVERSY ENDS

FENCING OF ICIRKBRIDE'S ROAD

FINAL TESTING IN COURT

'COUNTY COUNCIL NEGATIVED

A five-year controversy was formally settled by arbitration in the Whakatane Court last Tuesday before Mr E. L. Walton, S.M., when the vexed question of the fencing of Kirk:bride*« Road at Waimana of •which our readers have heard •considerably more' than they probably desired was made the Subject of a successful test case by G. Kirkbride an'd others who last December forwardedi a petition to the Whakatane County 'Council on the subject, the pray•er of which was rejected. The ►case which entailed just undter four hours hearing, provided the ■•court with one of the best legal ibattles heard locally for many years, and resulted in. the petitioners being upheld in all their •contentions and the vetoing of the case for the County Council which was required to meet the * costs of the proceedings. '.The case was brought by Gilbert Kirkbride (Mr B. S. Barry) being the petitioner and the. ratepayer mainly concerned and was presented under Section 146 of the P.W.D. iAct, Wherein it is required that, ii' .at any time- si local body received a 'petition from live or more ratepayers regarding a gate or other obstruction. on the road, which has become a public nuisance, the roading authority shall order its removal within 60 days. If however such ac•tion were declined any ratepayer irnight require the authority to repair before a magistrate, whose ruling shall be final. Mr T. K. Hum* •erton represented the Whakatane •County Council and claimed that the above clause was offset by an--other provision and was also< governed by the degree of. public inconvenience, which in the present 'Case was more or less limited to a ..private individual. Counsel's Outline Presenting his caSe Mr Barry said that the present unfcnced road -which' ran through H. Wardlaw's property to Kirkbrid.e's was a continual source of trouble and annoy•ance, the stock being continually there and causing accidents. He •added that, at the initial conference. liis client claimed that the position •had been misrepresented to him and lie had later repudiated his agreement on that account. The trouble iiad been dragging on for some ..years now and the present case was* brought on to bring about finality. The road was a dedicated one and he understood the only reason the •Council refused to fence it was, because of another agreement it had made with Wardlaw not. to do so. There, was actually no reason why ..gates should be constructed across it, any more than they should be built across any other road in the -county. The council's action aniount-•-.ed to a preference for one ratepayer rights" to the detriment of another.' Petitioner's Evidence Stating that he farmed some -acres at Waimana., Gilbert Kirkbride from the box proceeded to give .lengthy evidence on matters leading up to the deviation of tile road through Mr H. Wardlaw's property. He stated he had given two acres of land when the new route was first proposed and had contributed two sums of £100 towards its formation. In 1937 the Council had been granted the sum of £120 as a subsidy towards formation costs, but to his knowledge had not utilised the .jnoney. He was proceeding to give -details of how he with two workmen had finally started, on the formation of the road when tlie magistrate interrupted. "Do we have to go into the history of it all," said Mr Walton. "It is agreed that it is a public road it is alleged that the gates con--Stitute' an inconvenience. By law if the Council does not take steps to remove the gates, the matter can . be brought before a magistrate. .That is the position." Difficulties With Stock Mr Barry agreed and witness went •on to say that in its present tinfenced state stock were continually on the road at all times of the day. JHe himself, desired very often to remove stock and was faced with the

difficulty oi" always mixing them up with tho.se of his neighbours. Drovers had met -with the same trouble. There had been several accidents as a result of this unsatisfactory state of affairs and two cows to his knowledge had been killed. Others had been struck by vehicles giving rise to many minor accidents. He mentioned also an incident when he had collided with the. rear of a truck when the latter pulled up at one of the gates. Constantly in Use Witness claimed that the road was frequently used by drovers, agents and travellers and that people ho had had working for him had com'plained to him time and again of the inconvenience in opening gates and meeting stodlc on the road. To Mr Hamerton he admitted that the main disadvantage as far as lie was concerned was the stock position, and further that none of the major accidents mentioned by him had occurred between the gates. His ground, for refusing the cattle stops when offered him by the. council was because he considered them dangerous. Truck Driver's Evidence Frederick Kelson, who had previously driven a truck for Messrs;. Brabant 8r05.,, told of an incident when endeavouring to bring stock out by lorry. "The cattle had becomc restive at the gates and one had escaped by jumping out. He had also driven stock along the. road with the result that they had become mixed with Ward law's and much time was wasted. The gates were definitely a nuisance. To Mr Hamerton he admitted that the accident occurred at the gate which had been erected by Mr Kirkbride himself. County Council's Case For the defence Mr Hamerton submitted that, there had been no, proof of public inconvenience and secondly that the council was unable to agree to the prayer of the petition on account of a prior agreement it had made with Mr Wardlaw not to fence the land. The Magistrate: But two parties cannot enter into an agreement to take away public rights and it doesn't prevent five ratepayers from petitioning if they so desire. Mr Hamerton quoted legal parallels to show that such procedure could be varied according ,to the degree of inconvenience suffered. He further claimed that the gates complained of were public property and not the type of gate referred, to in the Act. which indicated a private gate erected by a private, person. The Magistrate: You would argue then that if the council put up a gate on the main road at Taneatua, it could not be made to shift, it? Mr Hamerton: No., but the question of public inconvenience would come into it. The Magistrate: The County Council doesn't own the road. It's duty is to maintain it. Mr Hamerton: But I submit sir, that the council is given all the powers of a Road Board and can put swing gales across any road. The Magistrate: Yes, under certain circumstances, but it can't say that no one shall take them away. Two Categories Mr Hamerton then said that the council was actuated by circumstances in this instance and the question of inconvenience came under two categories—private and public. The Magistrate: I drove over the road in question this morning. Did I have to stop at the gate? Mr Hamerton: Yes! The Magistrate: Well was it a convenience or an inconvenience! Mr Hamerton: Yes sir, but I contend that. the. present case savours more of private inconvenience than of public! The Magistrate: Every member of the King's subjects with his horses or his oxen has a right over the public road. 11' you interfere with that right,, surely it is an inconvenience to the public! Mr Hamerton: I submit that the isolated, nature of the surroundings would have to be taken into account. The Magistrate: Supposing an undefined local authority decides to put a gate across a road giving access to a property owner. Has that man no redress) ? The way you are arguing, means that the council has every right to gate every no-access road in the Qwraty.

Mr Hamerton agreed, but said there Avcrc degrees of inconvenience which had to be considered. Tile Magistrate: Most, roads are fenced! Why shouldn't this be? Mr Hamerton: Probably the cost! The. Magistrate: We Jl, can you impose hardship on any one nnui simply because of cost? Mr Hamerton: There is a limit to the funds of a local body. Riding Member's Evidence Mr R. F. Wardhiw, riding member for Waimana, said that actually the trouble .started before he was elected to the council but he had been present at the meeting between the then chairman (Mr Cliff McCulloch) Mr A. H. AVardlaw, Mr Ivirkbride and the County Engineer (Mr C. H. Brebner). All parties on that occasion had agreed to the new road deviation provided, that there no fences, but. gates and cattle stops. An agreement had been prepared but Mr Kirkbride had refused to sign, though work had actually been started. A few days after Mr Kirkbride had visited the county office objecting to the gates and claiming that the position had been misrepresented to him. The council liad then come, to a separate agreement with Mr 11. Wardlaw to erect gates and to proceed with the road. When the petition was presented to the council last December,, the council considered that as the road was used so little, it did not. warrant fencing and removal of the gates. To. Mr Barry, witness agreed that the Government 'grant of £240 had been made available but denied that it had ever been represented as insufficient to do the fencing. He could not say with certainty the total expenditure on the road,, nor could he say if there had been any estimate for the fencing included in the application to the P.W.D. Weaknesses' in Agreement The magistrate then pointed out after carefully reading the terms of the agreement made with Mr Wardlaw that the council had not undertaken never to erect the fencing, but merely to indemnify him against the cost of such fencing. This, put a completely new completion on the council's contention. The. County Engineer (Mr C. H. Brcbncr) also gave evidence as to what transpired at the meeting of all parties in 1938. He maintained too that whereas Mr Kirkbride was definitely against the gates at first he had linally agreed to their erection. When however Mr Kirkbride. had refused to sign the agreement a separate one had been made with Mr AVa rdlaw. To Mr Barry, lie denied that lie had ever admitted that the position had been misrepresented to Mr AA'ardlaw but explained that lie had merely pointed out that no P.AV.D. grant included money to offset the cost of fciicing. H. A. Wardlaw's Evidence Mr H. A. AVardiaw detailed the original arrangements made with Mr Kirkbride and. stated that he had .stipulated before giving the land for the road that it should not be fenced off as it would cut uj> his paddocks into very small subdivisions. There was not a great deal of traffic on that road and those who did use it had riot comi)lained to him of the inconvenience of the gates;. To Make a Test Case The County Council chairman, Mr J/. L. Burnett, said that unon receipt of the petition,, the council had handed it over to the solicitor, being of the opinion that it could take no action until the case was tested in court. Up to that time the council had used every endeavour to satisfy Mr Kirkbride and had met him from time to time. In view of its agreement with Mr Wardlaw it was not possible' to agree to the fencing. The Magistrate: But the council has only undertaken to indemnify Mr Wardlaw against expense in the event of his being compelled to do so. Sir Hamerton: That is so. The Magistrate: AVell, then the force of compulsion was in the petition. Mr Barry (to witness): Is this the only road in the. county with gates across it? AVitness: Yes! Magistrate's Decision Giving his decision, the magistrate said that, the legal authority quoted by Mr Hamerton, had had four judges, in disagreement, with it and he contended that the arguments presented were not referable to section 142. (ContSoued in next column)

The county, he realised, was in a dilemma because it imagined that it could not l'ence because it was already bound to ail agreement not to do so. Under section 146, the only reason furnished as to why the gates should, not be removed was because of the. agreement and the question of cost. If the county had' its way, it would seem, that the complainant was to be left for all. time with the inconvenience of the gates merely because it cost the County Council some money. If Mr Wardlaw did. find it necessary to erect the fence, the question of money was not. a very convincing argument at any time, but here it seemed as though the complainant did suffer an inconvenience and his co-petitioners said they did also,, according to the> degree to which they used the road. "So I'm going to decide," concluded Mr Walton, "that notice under Section 146 shall issue, in accordance with the prayer of the petition." Costs were also granted against the council to be arranged between counscl.