METALLING OF ROADS.

Hauraki Plains Gazette, Volume XXXV, Issue 4742, 25 August 1924, Page 3

METALLING OF ROADS.

POSITION ON HAURAKI PLAINS. A LEGAL OPINION EXPRESSED. THE DEPARTMENT RESPONSIBLE. At the request of the Hauraki Plains County Council we publish herewith the text of certain correspondence in regard to the metalling of the roads on the Hauraki Plains. To the secretary, N.Z. Counties’ Association, Wellingtoh, tne county clerk wrote as follows: “I have been directed to obtain the opinion of the solicitor to the Counties’ Association upon the following mattei :

“The Hauraki Plains have been opened up for settlement by the Government under the provisions of the Hauraki Plains Act, 1908 (local), and its amendments.

“Most of the land was thrown open for selection on the optional system. The first ballot was held at Thames on or about May 18, 1910. Prior to the ballot the Lands Departmnet issued plans which described the land by map and words. On the plan there is space devoted to ‘lnstructions to Applicants,’ and one of the paragraphs under this heading is as follows :

“ * Stop-banks, roads, drains, and protective works considered necessary will be completed by the Department. “The plan also shows a map of the sections with the access roads, which are described under one or the other of the follpwing headings: Road. Road Under Construction. Formed Road. Metalled Road. “The second ballot followed in February, 1911, when the same procedure was adopted, and the corresponding paragraph to the above was as follows : “ ‘All roads, drains, and stop-banks shown on the poster are either constructed or under construction, and will be completely finished by the Department.’ “In subsequent ballots the above paragraph was omitted because in the interval between the second and third ballots the question of metalling of. the roads arose. The settlers contended that a completed or completely finished road means nothing less than a metalled road—especially so as the land was reclaimed swamp, the roads on which were impassable unless metalled. The Department denied that it was ever intended to metal the roads. The question was put to Mr Massey (then Minister for Lands) in January, 1923, before the third ballot and when he was in the district. He is reported -in the ‘Thames Star of January 18, 1923, to have said: “ ‘ln answer to Mr Buchanan, that the settlers were under the impression that they were not receiving fair treatment in regard to Government grants. The Premier, after consulting Mr Rhodes, said the settlers were mistaken : through the energy of their member the sum of £450'0 had been obtained as a grant for metalling, etc., ■out of the consolidated revenue, and not out of the additional sum voted for the Hauraki Plains improvement. He could assure them that the roads would be metalled and that the Government would go on with this important work. Already tenders had been called, and the Government would keep on assisting until the roads were metalled and made in good condition. He would see that the allocation of public moneys .the Hauraki Plains would get its fair share.’ “The Department has, in fact, metalled over 50 miles of roads, and is still doing so. The Chief Drainage Engineer says it was mot part of the scheme, and that - all metalling was and is being done out of special grants, to which the settlers reply that they are not concerned with the means of payment, but that the Department promised ae a condition of their licenses a completed road, which could mean nothing less than a metalled road.,

“The question for submission to the association’s solicitor is, what is the meaning in law of the phanse ‘a completed road’ or a ‘completely finished road.’

The reply received from Mr T. F. Martin, counsel to the Counties’ Association, is ais follows :

“The question put is : What is the meaning in law of the phrase ‘a conv pleted road’ or ‘a completely finished' road ?'

“In my opinion these expressions have/no fixed legal meaning, but are relative expressipns, their interpretation depending on locality and circumstances. For example, these expressions would have different meahjngs if used in relation to roadp in the businses part of one of the four larger cities to what they would have if used in relation to roads in the back-blocks of a county.

“It, must be pointed out, however, that : 'the above; expressions were not. used by the Lands Department. The Department said on the occasion of the first ballot that ‘the roads will be completed/-and on the occasion of the second ballot that ‘the roads will be completely finished’ by the Department. At the first ballot apparently some roads had not been begun and others were in the course of construction, and the work of road construction generally was to be ‘completed’ by the Department. It remains to be seen what kind of road was to be ‘completed’ or ‘completely finished.’

“In the present case my instructions state that the land to be opened was reclaimed swamp, and that roads made thereon would be impassable unless metalled. This statement appears to be borne out by the.remarks made by the Minister for Lands (Hon. W. F. Massey) in January, 1923. In the course of his remarks he is reported to have said: “ ‘The Government would keep on assisting until the roads were medalled and made in good condition.’ “I read this statement to mean that metalling was necessary in order that these roads should be in good condition, and certainly the Department’s undertakings meant that roads in good condition would be provided. “Although the Department claims that metalling was not part of the road-making scheme on the disposal of the Hauraki Plains lands, yet it is significant that the Department has,

in tact, metalled over 50 miles of the roads and i*s still metalling the roads, it is true that the Department claims mat the money for metalling conies out of giants from the Consolidated fund, but the fact remains that the government considers the metalling to be necessary in order to give the selectors good roads,, and 1 am of opinion that an undertaking merely to ‘road’ this swamp-reclaimed land would involve that the roads were to be metalled unless there was something in the context of the undertaking to lead to a different interpretation.

“The undertaking on the occasion -of the finst ballot was as follows: ‘Stop-hanks, roads, drains, etc., considered necessary will be completed by the Department.’ The roads wei'e described in the map under one or other of the following headings: ‘Road, Road Under Construction, Formed Road, Metalled Road.’ The last description if it applied to new access j-oads would at once disprove the Department’s claim that it was never, intended to metal the rdads. J (should read the above terms as meaning : Intended road, road under construction, road of which the formation only has been done, road already metalled.'

“The Department’s said undertaking to ‘complete’ .the access roads meant, in my opinion, that all the roads would be metalled. The several descriptions above.set out are in an ascending scale of cwnpleteness. First, a roiul line is ishown; next, work is being done on a road; then work on another road has got as far as completion of the formation, while the descriptions culminate in the metalled road.

"As regards the second ballot, the undertaking here is that the ‘roads will be completely finished by the Department.’ In other respects the procedure as to the finst ballot was adopted. An argument might be made by the Department that where a road had been ‘constructed’ as of formation only, this showed that all that was intended had been done to that road, but as metalling could at any time after formation be put on a road I do not consider that the argument would be sound. The case of a road differs from that of a drain or a stop-bank, since it can be readily seen when these workjs are ‘constructed.’ “I am of the same opinion with respect to the roads at the second ballot as with respect to those at the first ballot. Indeed, the stronger exprsesion, ‘will be completely finished,’ was used on the occasion of the second ballot. “The short effect of this opinion is that metalling was necessary in order to make good roads on this swampreclaimed land, but that in any case the terms of the Department’s undertak in gc clearly were such as to inform the selectors that all the roads would be metalled.’’