KIRKBRIDE'S ROAD

Bay of Plenty Beacon, Volume 7, Issue 44, 28 January 1944, Page 5

KIRKBRIDE'S ROAD

NO NEED TO FENCE FURTHER

COUNTY'S LEGAL OPINION

The sequel to the latest letter from Mr G. Kirkbride to the Whakatane County Council, requesting the fencing of the now famous roadway be completed, was the receipt of a legal opinion from the N.Z. Coumties Association stating that the council was not in' any way bound to carry out such fencing. The opinion results :— The Council is not, in my opinion, bound by any contract that has not been executed by it in accordance'with Section 14.6, Counties Act 1920. Any such contract, as it is related to the alienation of $nd , is 0116 which, if made between private persons, would require to be made in writing, and thus under Section 1.4(i (2) it should have been made either under seal, or signed, by two members of the Council on behalf of and by direction of the Council. As in the present case there is no evidence of any such written contract the Council is not bound to erect the fence. Apart from contract, the Council is not bound to crcct fences to separate property from the road. Section 33 of the Public Works Act, 1928, has no application, as the land was not taken under the Public Works Act. If the land had been ; taken under that Act, instead of the road being proclaimed under Section 12 of the Land Act, 1924, then the Council would have been bound to provide fences: so as to render the owner's land as immune from trespass as before the land was so taken, and this; provision would have had to be made at the time of the taking of the land or the execution of the work. In my opinion, the owner has a right to remove any fence separating his land from the road, there being no legal obligation upon a landowner to fence his road I'ronttage. As a local authority in respect of roads under its: control is not subject to the provisions of the Fencing Act 1922, road boundary fences belong to the landowners, and the local authority has no rights, in respect of the same. As far as swing-gates across roads are concerned, Section 145 of the Public Works Act, 1928, provides that every gate and fence so erected is to be the property of the; person who erected the same, or at whose cost it was. agreed that the same should be. erected and maintained. If, therefore, sucli a swing-gate is replaced by a road boundary fence, the person whose property it is may remove it; see Section 142-44 of the

same Act. The council thereupon resolved iliat a copy of the Counties Association's opinion be furnished Mr Kirkbride and, that he be advised that the council has declined his fencing application—that the two gates? on his road at the time, the 1 deviation fences were erected were tlie pro-, perty of the County Council. Cr McC ready commented, that it now appeared in the. light of the above that Mr Kirk bride had been prosecuted some time ago for shifting gates that were not the county's property. '