CLASSIFICATION APPEALS

Hauraki Plains Gazette, Volume XXXVIII, Issue 5167, 19 August 1927, Page 3

CLASSIFICATION APPEALS

•CONTINUATION OF HEARING. CASE FOR DEFENCE. The hearing of the appeals by settlers of the Hauraki United Drainage Board’s district against the classifications made for their land for rating purposes was continued in the Magistrate’s Court, Thames, on Wednesday last.

. In accordance with the jvish of the ■magistrate (Mr F. W. Platts, S.M.) Mr E. J. Clendon wound up the case for the ten appeals already presented, and then Mr E. L. Walt.on presented the Drainage Board’s side of the case. Mr Clendon stated that he would call Mr W. R. G. Johnston, who would refer to several incidents showing ! that the classification generally was loose and perfunctory, and hot a classification at-all. Mr Walton contended tha.t Mr Clendon should stick to the cases of the appellants; Tiiis view was endorsed by the magistrate, who pointed out that if the door was opened there would be no finality. Mr F. W. Walters, farmer, Springdale, stated that he had had many years of local body experience, and for the last 16 years had been a member, and for the past six years chairman, of the Waitoa Drainage Board. Very little trouble had been experienced by that board with classification. It classed as “A” the lands which drained direct to board drains without any other expenditure. Land which required an expenditure by the landowner on subsidiary drains to enable it to benefit from the board’s drains was classed B, and land more remote still was classed C. His land on the Rangitaiki Swamp was all classed A by the Government, despite its distance from outlet drains. He was familiar with Hauraki Plains conditions, and was of opinion that it was not land which drew well. To Mr Walton witness said he did not know the lands of the appellants. The land in the Waitoa. district was rolling, and some was high, so that it drained naturally The classification in the Waitoa ,wfls never contested from a legal aspect, as the present system was concluded to be following the law. The system gave what was considered to be a fail" deal '. to settlers. Mr W. E. Hughes, chairman of the Hungahunga Drainage Board, who had laid out that board’s drainage scheme .19 ago and had been a member for the last 17 years, stated that he had acted as drainage classifier, umpire, and assessor on several occasions. He had classified the Haiilaki Board’s land, taking a fortnight to do the work, and had visited every farm. In his opinion class A land was land which derived direct benefit from the operations of the board without the expenditure of the rate- - payer’s own money. B class land required private expenditure, and C land was further back still from the board’s works. In his opinion the soil on the Hauraki Plains did not Mkain well. Ten chains would be .the -Utmost it would draw. To Mr Walton witness stated that his- knowledge of the plains was limited to a fortnight. Mr Walton produced a receipt signed by witness for wages as classifier for the Hauraki Drainage Board showing that he was only five days- on the work. • Mr J. E. Thompson, licensed surveyor and civil engineer, formerly engineer to the Elstow Drainage Board, said that his practice in regard to classification coincided with that of the previous witnesses. To Mr Walton witness stated that he knew nothing of Hauraki Plains ’Whatever. Mr W. R. G. Johnston, Waitoa, put in a written statement showing the classifications he ha.d made of the appellants’ lands, and the reasons therefor, being a summary of the evidence already given by him. To Mr Walton witness said that he was satisfied his system was the system intended by thei Lands Drainage Act to be used by classifiers. In 1917 he had propounded a scheme for (Lthe Hauraki Drainage Board, but in evidence at the previous hearing he had said that he could not anticipate the effects of drainage works. He wished to withdraw the word “anticipate.” Witness was examined at length by Mr Walton concerning his, previous classifications. When a drainage scheme was: to be prepared it -was first necessary to prepa.re a rough classification to submit to the lenders of the loan money to be usfed. It was useless, in his opinion, to advise possible lenders of the valuation of the rating area without also stating what the classification would be. He wished to stress the point that land which would drain naturally to a board’s drain should be classed A. In higher levels it could be taken that land which sloped to drains should be classed A, but on flat Rinds, such as the Hauraki Plains, the land should be classed A if surface drains alone would take the water to the board’s drains. THE DEFENCE. Opening his.case for the board, Mr Walton said that the question was, what was the proper basis for classification ? This turned on section 33 bf the Act as amended, and if the - appellants’ classifier was right in his interpretation the board’s classifier was wrong, and there must be a recla.ssification of the district in fairness to the large body of ratepayers who had not objected. If the board’s classifier ihad adopted the proper basis, then all the appeals: went by board and should be dismissed. He submitted that was the real question at issue, and that there was no need for the Court to be troubled with a long description of the state of a number of. farms on the Plains during the wettest month of this year—for that was what the ten appellants and their classifier had really done. A similar description might be given of ' the whole district, and the real point , at issue would not be advanced in the slightest degree*. Continuing, Mr Walton contended that if he could show that the board s

classifier had proceeded on the correct basis the appeals should be dismissed. If he could not show this he would attack the appellants’ classifier. In order to show that the board’s classifier had adopted the correct basis it was necessary to review the history of the law of drainage, and also the history of the particular drainage district. INTERESTING HISTORY. “The Land Drainage Act, 1893 (No. 46), was the first attempt to codify the law relating to drainage of land,” sa.id Mr Walton. “Prior to that there were sections scattered among a number of Acts. The title of this Act is as follows : ‘An Act to provide for the drainage of agricultural and pastoral lands.’ Now the date of that Act and its title help considerably in understanding the Land Drainage Act of 1908, which re-enacted with practically no variation the Act of 1893. “In 1893 the dairy industry was beneath the notice of legislation and the reclamation of swamp lands had not been given attention. So we find that when the law as to drainage was codified it provided for the drainage of agricultural and pastoral lands. Agricultural land is tillable or cropping land, while pastoral land in 1893 was principally land used for rearing and fattening sheep. “It was not until the Hauraki Plains Act, 1908, that any attempt was made to deal on a large scale with swamp lands. The reclamation of the Hauraki Plains having proved successful, attention was turned to other swamps ip New Zealand, and in order to give the Minister of Lands authority to deal with them the Swamp Drainage Act, 1915, was passed. While the law relating to the reclamation of swamps has developed, the general law as to the drainage of other lands has been al, most stationary. I will therefoie, said Mr Walton, “proceed to a consideration 1 of the Land Drainage Act, 1908, and its amendments, and afterwards seek what light there is in the Acts relating to the reclamation of swamps.

“In section 2of the A c t the phrase ‘drainage works’ is defined as meaning ’ drainage- works of any sort, including the making of drains for receiving water in its natura.l flow on or from any hills or other sloping lands and diverting the same to prevent its overflow on to any other lands on a lower level, as well as drains for carrying off water from any lands. “When it is remembered that the drainage works, whidh the legislation had in mind, were to deal with agricultural and pa.storal lands, and that at the time the swamp lands of New Zealand were not even in contemplation, it will be seen that the definition refers to undulating open country with valleys and defined watersheds. The definition says, ‘the making of drains for receiving water in its natural flow on or from hills or other sloping lands and diverting tne same to prevent its overflow on to any other lands on a lower level.’ 1 will show-later that the land in the Hauraki United Drainage District (except Kerepeehi Hill) varies from 3ft above to 2ft below the highest spring tides. There is probably not more th,an two feet of difference in the levels over the major part of the district. So that the dominant feature of the definition can have no application to the Hauraki United Drainage District, whatever it may have in the Waikato, from whence the appellants’ experts come. “We are therefore thrown on to the ancillary feature of the definition, As well as drains for carrying off. water "from any lands.’ It is submitted that the words ‘drains for carrying off water’ refer to arterial drains- —i.e., drains which can be said to form part of a drainage system of a board—and do not refer to the private side drains which provide for the internal drainage of a fqr-m. Later on authorities will be cited for this view.” Continuing, Mr Walton summarised the powers of a drainage board as sot forth in the Act, and contended that there -was not one section which empowered a board to carry out the internal drainage of a farm, citing authorities, in support of his contention from which the following propositions were made very clear: “That the function of a drainage board is to provide arterial drains to ■receive and carry away the water from the private lands in the district.

“That It is the duty of the landowner to construct and maintain his side, branch, and internal drains, so as to enable the water from his lands to flow into the board’s arterial drains,.

“That if a drainage board provides and maintains arterial drains capable of receiving and carrying away the waters from the lands in its district, then that is the maximum duty cast upon it.

“That a land holder in a., drainage district cannot evade his liability by failing to provide and maintain his internal drains or by diverting his drainage away from bpqrd drains which are capable of receiving and carrying it away.” “Having disposed (and I hope successfully) of the respective powei s and duties of a. drainage hoard and its landholders,” continued Mr Walton, “I pass on to consider the relationship between them financially It is of course, common ground that the board can only function upon the funds received from its settlers, whom we will now call ratepayers. Sections 31 to 37 of the* Act (as amended) deal with the rating of a drainage district. Section 31 gives the board power to levy a rate of *ix farthings in the £ on the, rateable value. It mH be recognised at oncethat this power is very limited. No matter how you extend the scope *o the works—construct as many drains as would please the most obstinate lappollant—there is no getting away from the very limited financial provision for the maintenance of the drains when constructed. Rating on the basis of the unimproved value has been adopted by the ratepayers of Hauraki Plains County and the drainage boards' within, the county ate compelled to do likewise. The most that can be collected from a ratepayer owning 100 acres towards the

maintenance apd repair of the arterial drains of the district is £l2 10s That is taking the average valuation over the whole district and classing the land A.

“There are, of course, special rates for loans, but the sum required for interest is- fixed annually, and it does not enter into the argument, for if all the land is classed A, then the rate in the £ is less than it would be if the land were to be classed A, B, and C. The point to be remembered is that experience has shown that the maintenance rate is not sufficient to maintain the arterial drains. This has been the experience of the defunct Horahia and Hauraki boards. “Section 32, as amended by section 3 of the Act of 1913 (No. 31), provides the manner in which the maintenance rate is to be levied. Subsection 1 of the amendment says that the rate shall be levied on a graduated scale according to classification, but there is a very important proviso which authorises the Minister of Lands to grant permission to levy the rate on a uniform scale if he: thinks the lands will derive ‘practically equal benefit’ from the drainage works. He has, in fact, exercised this power in respect of the HorahiaOpou special drainage area, situated within the Hauraki United Drainage District. So that there is nothing very wrong with the classification by the board’s classifier. “I have now cleared the way for a true and correct interpretation of section 33. My learned friend in his opening said that the underlying principle of this section is benefit. I accept thqt statement, but where I differ from him is in the application of the term. Benefit is synonymous with advantage or profit, according to Webster. He says we speak of a thing as,a benefit when it is simply productive of good. Now, applying this to the propositions, which I have shown are clear from the authorities, and reducing it to a financial basis, which it must be, and then ask the question, ‘lf the board provides and maintains arterial drains capable of receiving and carrying away the waters from the lands of a ratepayer in its district, does that ratepayer receive 2s 6d worth of benefit advantage or profit per acre per annum ?’ “Remember before answering that question that a Commission was held after hearing evidence —the Commissioner was th© Public Works Department engineer in charge of the Auckland district —evidence unanimously given by three engineers, E. Taylor, E. F. Adams, and W. R. G. Johnson (now, strange to say, classifier for the objectors)'—that all this land would have been uninhabitable but for these drainage works. Land which some of the other side’s chief objectors valued just the other day" at from £5O to £lOO per acre. Is this, land worth preserving at the cost of a paltry 2s 6d per acre per annum ? Does it get 2s 6d worth of advantage profit or benefit ? If it does, then I submit it is class A. “If these objections were genuine, then I would seriously doubt the fitness of the appellants to be on the land. I will show presently that the. objections' were really engineered by a small committee of disgruntled and defeated candidates for office. I will show that they don’t believe in their own objections, and that they were prepared to class themselves A- In fact, one of the tail of the party told me that he was asked to object, and was induced to do so a.s everybody else was, and he didn’t want to be left behind, but now that the question was contested he was not going to waste money over it now that he, knew the position. He was, satisfied to be classed A with the rest. “One further point with regard to section 333 and I have done with it. As amended by section 11 of the Act of 1922 (No. 5), the classes speak of ‘land receiving or likeily to receive,.’ I submit that these words deal with the present and the future for these reasons : The engineers say that drainage is a progressive problem, and as the scheme of the district develops, then so more lands receive benefit. It is obviously desirable that lands likely to receive benefit should be included in the rating liability. Take a loan for construction. Before the loan is raised the works are not in existence. A rate must be pledged as security to get the money. Before the rate can be pledged there must be a classification. So that unless a classification can deal with benefits to be received In the future., their it would be impossible to raise a loan for drainage works.. A condition cannot exist and at the same time be likely. The condition in this case is one of benefit. If the condition is existing, then the ’ word ‘receiving’ covers it, and as it is, a rule of construction of statutes that words are not synonymous, then some other period of time must ba attributed to ‘likely to receive.’ As obviously it cannot mean the past there is, only -the future left, and to this it must refer by a process of exhaustion. Thisconstruction is borne out.by sub-sec-tion 4 1 of section 6 of the Land Drainage Act, 1913. “In order to emphasise .the difference between swamps and other lands I will refer shortly to the legislation as to the settlement of swamps. As I said before, the first attempt to deal with swamps- of any size wa.s in 1908, when the Hauraki Plains Act was passed. The title is, ‘An Act to provide for the settlement of Hauraki Plains.’ The empowering section is section 3, which is as follows : ‘The Minister of Lands is hereby authorised io construct and carry on such works <]s he thinks, fit for the drainage, reclamation, and reading of the said land or otherwise for the rendering of same fit for settlement.’ Now the Swamp Drainage Act. 191'5 — an Act making provision for the drainage of swamp lands' —has, a section No. 3 in exactly the same words. The essence of the legislation is to Tender fit for settlement by reclamation from the sea and from the river floods, and by a scheme: of arterial drainage when reclaimed. So that •whatever may be sufficient in the Waikato, the position is very different in the Hauraki United Drainage District, which is all reclaimed swamp, only inhabitable (>o the Commission found) after the Government works ■ (Continued on Page 4.)