DRAINAGE RIGHTS.

Hauraki Plains Gazette, Volume XXXIV, Issue 4586, 13 July 1923, Page 2

DRAINAGE RIGHTS.

POSITION OF COUNCILS. LEGAL INTERPRETATION GIVEN. As requested by the Hauraki Plains County Council the county solicitor submitted the following opinion concerning drainage matters to the .council meeting at Ngatea on Tuesday :— •‘I have been asked ito advise on the following points : (1) The rights and liabilities of the County Council and a drainage board with regard co drains <sn roads in a drainage district. (2) Whether a drainage board has the right to make a drain across a county road in a drainage district in such position as the board thinks fit. (3) The liability of drainage boards for damage to county roads caused by its operations. “With regard to the first question the case of Henry v. County of Piako decides that the drainage board of a drainage district has exclusive juiisdiction with respect to all watercourses within the drainage district, and the drainage board and not the county council is liable for damage caused by reason of a watercourse, becoming fouled. ‘ Witli regard to question 2, section 17 of the Land Drainage Act, 1908, provides (inter alia) that a drainage board may: (a) Construct any r drains of such materials and in such manner as it. thinks necessary or proper for carrying the purposes of this Act into execution, and break up the soil of any roads, ways, or footpaths within the district, and excavate and sink trenches for the purpose of laying down, making, and constructing drains therein, and • cause such drains to communicate with the sea or any arm thereof., or with any stream or watercourse either within or beyond the district, and. also from time to time open, cleanse, and repair such drains, or alter the position thereof, and do all such acts, matter, and things as it. deems expedient, necessary, or proper for making amending, repairing, completing, or improving any watercourse or drain or other works tc-.be made, done, and provided for the purposes of this Act. . • “Section 20 provides thati before interfering with any road or footpath the board shall give one month’s notice in writing to the local, authority having control thereof; and if such local authority objects to the proposed work the matter shall I e referred to the Minister of Public Works, whose decision shall be final. “In answer to question 3, the decision of Mr Justice Reed in the case of Hutt County v. Whiteman Bros, is in point. It was there decided that by section 102 of the Public Works Act, 1908, all roads and the soil thereof. . are vested in the Crown, and under : the powers given to a .county council by the Counties Act,. 1920, the council : has' the: care and; management of roads;' .Aiccounty.’.council,’..therefore, strictly limited purpose./of forming, ■ constructing, ■ • improving,-, repairing, ami maintaining them; iasi! public roml.s A county .jqoun.qil,, therefore, has no proprietary-right in -any rpad. and the general rule.,is.-.-that, where . the local authority has no proprietary right, and if there is a public wrong, •proceedings ..to remedy the wrong mast be taken a|t the suit of the At-torney-General.

“The Council’s remedy seems to l?e this: That a drainage board has to give the Council one month’s notice before the board interferes with a roi’.d, and it would then be. open for the Council to stipulate any reasonable conditions, and failing their being agreed to by the board, to object and have the matter referred to the Minister of Public Works. “If the board were to proceed in spite of the Council’s objection, then the aid of section 145 of the Public Works Act could be invoked. This section provides: That every person (which includes a. corporation) who, without lawful authority or-the written permission of the local authority having the control of a road ‘(c) digs up, removes, or alters in any way the soil or surface or scarping of a road’ shall be liable to a fine not exceeding £lO- for every day upon which such offence is committed or suffered to continue and to a further sum equal to the cost incurred by the local authority in repairing any injury done.”'