PARK RATES.

Press, Volume LXIII, Issue 19177, 7 December 1927, Page 17

PARK RATES.

(J,AIM against lessees.

inabilities of occupancy

Questions of tenancy and the halnh of lessees were argued in the ._uCourt vesterday morning, when ST Justice Adams heard a claim by ? Chriatchurch City Council for £332 SlOdin rates from Pyne, Gould, GumLtd., in respect of their lease of Son of Hagley park as the tenants f the Ohristchurcli Domains Board. 'The statement of defence was as fallows: (1) The defendant company , got an occupier within the meaning (t he Rating Act, 1925, of the lands in l.nect of which the rates sued for are •Led, either during the period m *ect of which the said rates are jed or at any other time, and is •lltoble either as such occupier or '4? ifor payment of the said rates, ;mt o f them or any part thereof. aa id land is Crown land, and as iijV exempted froni nitin " u,ulcr i<*'<quoted. n..' 1 Loughnan appeared for the £[, and Mr A. T. Donnelly, with fojtt Wanklyn, for defendants. said it was a claim JdUjA ;. yßy agreement between eonn|l«b*' snancy was admitted. was therefore only the neat whether the limited oc-h',-yn enjoyed by the defendants ■'it their lease amounted to a liabilJor rates. ft Donnelly said the question Jsd bo raised of what defendants jajd do with the Park.

* Park's Capital Value. i Mr Loughnan said tho capital value S bf the Par' l wa3 £215,800. Tho capital ? value of the rights of the lessee was i) by £IG,OOO. ? Mr Donnelly said that if plaintiff's r contentions were right the defendants 1 fetS'liaWe for rates on the whole P:frk. i pjfejjants paid £BOO a year under their r fell® and this, capitalised at 5 per L (jit.) made the £16,000 quoted. The 9 Is* S® 76 on *' le r 'S''t to run sheep B the Park to cat tho grass. K Jbe lease was handed to his Honour. ' Donnelly said the leases wero lioty by auction. Tho conditions of sale flawed the rights as grazing rights. : Loughnan said the estate passing ► ittt# lease was in limited terms. The Judge: There is no exclusive poslij I am not going to ad- | If I did I would not be here. I •Hl;' Honour: The whole of the citiChristchurch have rights to jjjjjl and enjoy. v. Sir'Loughnan said the right to begin lay with opposing counsel, yjfr* Donnelly said lessees had had j|tatei demanded from them until two yljiree months ago. If the Council ■weeded defendants' rates would go about £3OO. By- virtue of paying ipiiey wofild bo liablo for tho rates ffie whole Park. The Council had .Ifinado a demand on the Domains IP abandoned that, and thon made ; ipwnd on die lessees. The valuation : |p15,000 was made in 1922. It seem- ,' j$«M that the defendants were being l(jd-at such a high figure. Lessees irpld:-have to bo indemnified by the [ ptin» Board, which had informed | n lMsees that no rates were payable. » i l ® • The Main Question. ®e, substantial question wns one of tji|hney. The land affected by the • |fl| jras the north aiid south parks. blatter 141 acres were included, | pepted from the lease wero the Sjed by the Canterbury Cricket a fition, Christ's College Cricket Canterbury Hockey Association, ®and land occupied by the ranger polo ground. The polo ground at cerjM|||;Ponnelly: "We can't put sheep IBlf® 16 P°'° gr° ur| tl when tho polo J * iMj.'want it. That is one/ of the } !®«f ground where we have to take . Ipctions from tho Domains Board.'' sppitlo Club's right to remove grass , llfJed over six months. Actually it 'nPferass and fenced off tho ground, ' lessees did not use it. In the 'pjpark, the land under the lease k WpM acres. The parts exempted ? W;lix acres in a reserve near the , jtoddjon bridge, five acres for the ■ WpTennis Club, three roods for the ®lP r °q u et Club, ono acre for the wtfbury Collego Tennis Club, and a ■ pMi, frontage along tho riverbank. I «l}>ark had been let before on tenI jjft a °t exceeding three years, but ' first time a claim had been f IP*- 1 on the lesseos for rates. Tho !> MM wero applied by tho Domains "foito public purposes in maintainPark and grounds. Part of the rdens,

which were not included in the lease, ine cricket grounds were fenced off, and on no occasion did the lessees use hem for grazing. The golfers shared the ground they used with the sheen, and many a good approach had. been spoiled by the presence of the latter. Thfcy were allowed to run over the golf eourse, and this was essential to keep S™ 3 ® d own. A yearly license was held by the Golf Club. The same position arose with the football clubs using both Parks. There were quite two dozen football grounds, and the sheep had a roving commission over them too. There was no part to which the lessees were entitled to exclusive, continuous possession. Rate on Whole Area. His Honour: The rate is on the whole area, but not the whole value? Mr Donnelly said the rate was on part of Hagley Park, north and south, according to the claim. His Honour saitl the total area of the Park was 497 acres 3 roods 11 poles> according to the lease. The valuation did not define the Park.

Mr Donnelly said the valuation was made without reference to the area at all.

His Honour: The lessees seem to have leased the Park subject to the public having certain rights?— That is so. Mr Donnelly said the ease turned on the document and tho rights under it. Tho actual relationship would have to be examined. His Honour: Is there any other form of demiso which the Board can grant? Mr Donnelly said tho demise had to be approved by the Governor-General. On the first page of the lease tho Board was given the right to make further enclosures. It had tho power to. enter on the land, fence part of it, and say: "You can't graze your sheep on that." Provision was made for a reduction of the rent pro rata. His Honour said the right was similar to that given to any owner to cancel a lease and make adjustments of rent.

Mr Donnelly said the Board actually did fence off small areas. Small portions of the Park wero shut off by temporary fences erected by the Board at various times. Frequently no adjustments wero made in the rent, becauso the lessees did not trouble about them. When the Board considered the grass in a certain area had been eaten down too much, it closed it. The lessees contracted to keep down the grass—it was really a cheap way for the Board to keep its grass down. Limited to Depasturing. His Honour: The grass is kept down and the land manured?—" That is so." Lessees were limited to the depasturing of sheep alone, and were prevented from allowing ewes to lamb or rams to run with ewes, breaking up the land, or taking hay or grass seed off it. Defendants' submission on the lease was was that the righs conferred on the occupiers did not make them liable under the Bating Act of 1925. It was simply a grazing right and nothing else, but still further cut down in that' it must be exercised so as not to interfere with the rights of tho various sports bodies using the Park. His Honour: Where are the public's rights defined? —"In the Canterbury Ordinances, October 17th, 1855." These provided that the land commonly known as Hagley Park should bo reserved for ever as a public park, and should be open for the recreation of the public. Mr Donnelly said tho lessees had been limited strictly to the grazing of sheep. The area varied from time to time, and might vary from day to day. Defendants had no rigfits to the soil or to the grass, but only to graze. Mr Donnelly quoted from authorities defining an occupier under the Bating Act. If thero was only a right to graze, the position of defendants must be weaker, in the oceupaincy sense, than those holding a mining or timber-cutting right. Counsel quoted a Wellington case in which tho lease was similar, but the lessee covenanted to pay rates claimed to the City Council. The main use of the Park was to keep' sheep handy to the Addington market. The matter might be tested as to whether defendants were occupiers. If a man came along and erected a tent on the Park, who would have, the right to put him off? Who would have the right to bring an action for trespass? Counsel cited English eases in support of his contention that defendants were not, in fact, occupiers. "Paring Away Their Eights." "Defendants have been paring away their rights under the lease, so that I scarcely recognise it," said Mr Loughnan. "The areas excepted from the demise wore never part of the lease." He felt these exceptions had been poured into the scale. The space occupied by the golfers was the area covered by the pavilion. . His Honour: Is it not the part included in the trajectory of the ball? Mr Loughnan said tho extent of tho incursions on the estate of lessees might be reduced to those of the goiters and footballers. "The former interfere with tho tenancy very little m the pursuit of a small golf ball," said counsel. Tho footballers interfered only a few hours per week, not sufficient to deprive defendants of exclusivo occuHonour: Do not tho footballers run round at night, when all sejf.respccting sheep should be in bed? Mr Loughnan paid the other limitations to the tenancy were in the lease itself. Other exclusions were met by an abatement in rents. The lease was very reasonably drawn. _ His Honour: These exclusions can be made at any time and affect any area. They cannot be said to be trifling. The Board has the right to order lessees to remove the sheep to "allow of some gathering being held. Mr Donnelly: That has actually beon done, your Honour. The Judge said what had to be examined was the rights of lessors to interfeCounsel said the document began by being a lease, remained a lease, and had all the provisions of a lease. It created a leasehold estate, making it impossible for tho Board to grant anyone else a lease, for instance. There were many forms of lease of Crown land under the Land Act. The Judge: The question here is not one of a restriction of use, but of an interference with occupation. Mr Loughnan said those to bring an action for trespass were the lessees. ' His Honour: Yes, if anybody could be found without the right. A procession might be organised and pass through the Park on any holiday.

Not a Place of Residence. Mr Loughnan: Supposing people choso to reside in the Park? The Judge: That would bo against the law. Mr Donnelly agreed with this. His Honour: A good many people sleep there! . Mr Loughnan: Unauthorised persons. His Honour: There is a long line of rights for people to sleep in public parka. Of course, they are often run Mr Loughnan: Run in, I think. His Honour: I don't know what is dono here. , Mr Loughnan said that if the public s rights were not paramount they were übiquitous. His Honour: Is there any part to which the lessees have exclusive right? Mr Loughnan: I'm bound to admit there is no part in respect of which there are not rights enjoyed by others. His Honour said that if he met a sheep when walking through the Park

he would not feel obliged to turn aside for it. The sheep would have to turn aside for him. Mr Loughnan quoted from Ryde's definition of occupancy. His Honour asked how long the Park had been let in the present way. Mr Wanklyn: It is provided for in the original Ordinance. His Honour said that either exclusive occupancy would have to be shown by plaintiffs or that exclusive intermittent occupancy was sufficient for their case. Mr Loughnan said the issue had been narrowed down to the question of whether the occupancy defendants enjoyed was sufficient to render them liable to rates. Mr Donnelly said there was no real dispute in the matter, and the calling of evidence was unecessary. Judgment "was reserved.