BOROUGH COUNCIL LOSES CASE.

Manawatu Herald, Volume XLVII, Issue 2895, 11 June 1925, Page 3

BOROUGH COUNCIL LOSES CASE.

NO POWER TO ENFORCE TARRING AND SANDING OF STREETS. An important reserved judgment has been given by Mr Justice Reed in the ease heard at last session of the Palmerston North Supreme Court, wherein James John Casey, of Palmerston North, took action against the Mayor, Councillors and Burgesses of Palmerston North, suing to recover the sum of £465, being moneys paid to the defendant Borough under protest (says the M.D. Times.) The circumstances were that plaintiff, being the owner of a block of land situated within the jurisdiction of the defendant Borough Council desired to sub-divide it into allotments for sale. He accordingly submitted, for approval by the Council, a plan of the sub-division showing an intersecting road, on which the allotments frontd. Accompanying the plan was a specification setting out the suggested work to be done in connection with the formation and construction of the road and footpaths. The letter stated that the plaintiff proposed snb-divising the land “in accordance with the plans and specifications enclosed,” and stating that he was making application to the Council for its “consent to the sub-division and the road, and asked for its approval to the proposed formation of the road.”

The full reply of the Council, said His Honour, in giving judgment was important. It was that permission had been granted in accordance with the present existing conditions relating to the construction of private streets. His Honour italicised the application for a “new” street and mention of “private” streets. In continuance of the circumstances, it was stated hat the plaintiff thereupon formed and metalled the road, but the Council refused to endorse the memorandum of dedication unless plaintiff deposited the estimated cost of tarring and sanding the footpaths and roadway, £465, the work to be performed by the Council when the condition of the road warranted.

The plaintiff objected on the ground that the Council had no power to require the road and footpaths to be tarred and sanded. Eventually, by arrangement, the money was paid under protest, and the Council endorsed the certificate. “The principal question for my determination is whether a Borough Council has a legal right to impose as a condition to the granting of the certificate referred to in Section 116 of the Public Works Act, 1908, that the owner shall tar and sand the roads and footpaths shown on the sub-divisional land,” said His Honour. “Before dealing with that question, however, tlufte are certain subsidiary points to be considered. A by-law of the Council provided for tlie conditions that should be observed -by any person desiring to lay out and construct private streets. Amongst the requirements specified were the tarring and sanding of the footpaths and roadways. Assuming that the Council had the ower to attach such conditions to its consent to the laying out of a private street, which, in the view His Honour took of the ease, it was unnecessary to decide, the question whether the street now under consideration was at any stage a private street. The Council contended that, its letter, acknowledging the application for approvel of the sub-division, made it clear that the street being consented to was a private street. His Honour did not think this was so. The letter acknowledged an application for permission to construct a “new” street and not a “private” street, and the letter provided that it should be consruc-ted in accordance with the conditions relating to “private” ' streets. No application was before the Council to grant permission to lay out a “privatet” street. In effect, the remarks of Mr. Cooke that the procedure of granting a certificate under Section 116 of the Public Works Act was only a short cut, and that no signfieance should be attached to it, were that the Council, being probably doubtful of its powers to impose the contested conditions in the case of dedicating a street to the public, had adopted the ingenious method of getting over the difficulty, of requiring the street to be constructed as a private affair, and then taking it over as a public street.

Now, throughout the Municipal Corporations Act, a distinction was made between “streets’’’ and “private streets,” and all streets and the soil thereof and all materials of which they are composed were vested in fee simple in the Corporation Act. “Private streets” were the property of the person whose lands they traversed, the public having the use of them. The law now was that an owner of land who sub-di-vided it for the purposes of sale or lease, shall make provision for public streets and cannot be compelled to provide private streets. It was clear, therefore, that the plaintiff did not contemplate the laying out of a private street, and the presumption was that the Council approved of the street as a public street. “A local body,” said His Honour, “cannot arbitarily refuse to accept the dedication of a road or a street, nor can it impose conditions not authorised by Statute.” The only provision, under which it might be claimed that the defendant Council in the present ease was

entitled to require the street to be tarred and sanded, was that in regard to metalling. His Honour thought that, a well-understood meaning attached to the words “metal a street” it signifying covering (he formation with stone or gravel. Under the provisions of the Statute, it had to be done to the satisfaction of the local body. This gave authority to prescribe, inter alia, the size of the stones and the thickness of tlie metal, but not, in His Honour’s opinion, any authority to require the metal to be tarred and- sanded. Therefore, the defendant Council had no power to impose the conditions objected to with regarxl to the street and the plaintiff Avas entitled to judgment for the money retained in respect thereof. Judgment would be for plaintiff for the sum of £465, with costs according to scale.