LAW REPORTS.

Dominion, Volume 4, Issue 1199, 7 August 1911, Page 3

LAW REPORTS.

" NO RIGHT." TO DIMINISH WIDTH OF STREET. ' KING'S ROAD CASE. CIIIEF JUSTICE SPEAKS OUT. King's Hoad, Miramar, cannot bo diminished in width by the Borough Council unless different, procedure is adopted from that which the council were seeking to adopt in order to put into offcct the resolution passed some lime ago to narrow the rond from 99ft. to GCft. This was made dear by a decision of the Chief Justice (Sir Robert Stout), delivered on Saturday morning.

Back Story of the Case,

Some time ago the Borough Council deci.i. -'~to narrow the width of the street from vJt't. to GGft., and the case first came into court in the form of an application by tho .Mircmar Borough Council for an order, removing a cave it, which had been lodged by Hector Norman il'Leod, one of the property-owners affected, to prevent the registration of an order of the council diminishing King's Road to OGlt. On July 25 this phase of the question was argued, when Jir. T. l r . Martin, with him Jlr. T. Young, appeared for the Mirarnar Borough Council; Mr. Martin Chapman, K.C., for the caveator; and Mr. J. \V. Salmoud, Solicitor-Genera!, represented the Attorney-General.

When this preliminary point was being argued Mr. Chapman interposed, and asked that the Court should- decide upon the efficacy or otherwise of the caveat to restrain the council. The preliminary objection that the ca>eator had no right to lodge the caveat might prevail, and counsel thought that it would be well to have the caveat disposed of before other proceedings were brought. An adjournment was then decided oil, in order to give the parties an opportunity of conferring as to the manner in which the case should bo presented. Subsequently, it was decided to discontinue the original proceedings, the application was deemed to have been successful for the purposes of costs, and the power of the council to diiuiuisii the width of the street and dispose of the surplus, land was then tested before the Chief Justice.

Suppose it were done on Lambton Quay?

In giving decision on Saturday his Honour, after reviewing tho provisions pi the Municipal Corporations Act referring to previous decisions, said:— If;thc interpretation put on the'present Municipal Corporations Act by the Miramar Council is correct, a very serious position exists. A municipal corporation can, -where any street is more than G6 feet wide, diminish its width to GG feet, and prevent owners of laud having any frontage to the street. They may deprive landowners of all access to their land. It is true that the strip taken inav not be sold till the landowners have a first offer at a price fixed by a corporation valuer, but that may' not amount to any concession to the landowner.

An illustration may be given of what . m|ght be dofie if this interpretation of tho powers of a council is correct. The Wellington City Council could, by a special order diminish the width of Lanibton Quay to G6 feet, and then offer the owners who had been deprived of r. frontage tho right to purcnafc. Their buildings would not be ill tho street line. If they wished to bo in tho street line they would havo to build on the land acquired. The landowners might have an exorbitant prico ' demanded, and they might not liavo the means to buy. If they did not • bnv. their existing buildings would be rendered useless, and their property would be without ar.y access. Further, if thev should buy, the expenditure that they would be put to in purchasing the land and erecting buildings' ' might severely- handicap them in business. Further, the street or highway might-'be ruined for adjoining owners. It was urged that Section 118 provides fur compensation being paid. It is not necessary that I should at present determine that question. All I desire to say is that Section US is not so. clear as it should be if compensation is payable. And, if this is tho intention, the Legislature should immediately make it plain and unmistakablo. But what compensation can satisfy a man whose business premises have been mined through the narrowing of a street? And yet this great iniscliief may bo done by merely poising two resolutions iu a municipal council. If, then, tho argument ab inconvcnienti is ever to be used in the construction of a statute, this is a cose in which it should bo used. His Honour's Finale. I have not dealt with the case from a public health or town-planning point of view. It is, however, strange m this age if our statutes are meant to allow the narrowing cf public streets, for the sake of a corporation reaping a small sum of money from the sale of part of their streets. If the provisions of the seventh schedule apply, thei a municipal corporation cannot diminish the width of a street until the council, prepares plans and calls a meeting of electors. If the electors decide that the street shall not be diminished in width, it cannot be diminished. Tf.they decide it should be diminished, then the matter has ultimately to be decided by a magistrate, and lie cannot confirm the decision of the electors unless ho is satisfied "that a convenient way to the land in the vicinity of tho said street is left or provided." I must hold that the Borough Council of Miramar had no right to diminish the width of the street called King's Road by special order, unless the conditions of the seventh schedule arc complied with.