GISBORNE HARBOR BOARD.

Poverty Bay Standard, Volume I, Issue 220, 27 August 1884, Page 2

GISBORNE HARBOR BOARD.

A meeting of the Board was held after the Council meeting attended by the same members as the Council. The minutes of the special committee on the Common, Shelton question were read. The report of the Committee was adopted. The minutes stated that a cheque had been forwarded by Common & Co., covering onefourth of the rent appointed by the Board for that part of the foreshore occupied by them. Also that certain questions arising out of the matter had been submitted to Mr. Rees, who had replied as follows :— Legal Opinion. (1) That the auction sale, or attempted sale by auction, of the license to occupy that portion of the foreshore occupied by Messrs. Common Shelton & Co.’s store, was not a sale of a lease of land under section 138 of the Harbor’s Act, 1878. The clauses of that Act (from 135 to 140) in my opinion contemplated only the leasing of general reserves, and endowments of land, but have no reference to a license to occupy the foreshore which must be held and used under special legislation only (see sections 147 to 151, and 143 to 157.

The only clauses of the said Act by which any dealing with the foreshore could possibly be effected is clause 153. Under the Amendment Act of 1883, however, clauses 8,9, 10 and 11, contain all the powers given to the Harbor Board, and conditions under which those powers must be exercised. In these, however, there is no mention of the manner in which any contract must be made, nor the public notice to be given.

No contract of lease can be made under these clauses, but only of license, and that under very strict conditions, and for a restricted period.

In answer, therefore, to the questions 1 and 2 in your said letter contained, I am of opinion that clause 138 of the said Act does not in any way affect the auction sale nor the operation of clauses 9 and 11 of the Amendment Act.

2. In answer to question 3 in your letter, I am of opinion that unless the Harbor Board has received and accepted the cheque referred to as the first payment of rent, the position of the Harbor Board is unaltered.

2. The fourth question as put to me in your letter contains in reality two separate and distinct interrogations. (1.) No bid having been made at the auction sale, can the Board now treat the offer of this money as if Messrs. Common & Co., had bid the upset price at the sale and now complete the transaction? and (2.) Can the Board legally give a license to occupy the foreshore under the conditions of sale.

In answer to the first of these, I am of opinion that the Board, acting under the 9th and 11th sections of the Amendment Act is not affected by the failure of the auction sale. There was I think no necessity for a sale by auction, but thefi arrangement having been made to sell by auction the Board itself must judge as to the propriety of now making a private contract.

The second sub-question I do not think was intended, but being presented to me as a matter of law, I must at least take notice of it, lest it should appear that by allowing it to pass unnoticed I tacitly advised the Board upon that question, which in this whole matter is of greatest importance. In regard to this it is sufficient for me to say that if the Board desire my opinion as to whether the Board has legal power (1) to give such exclusive possession to one firm as the conditions contemplate of and over a portion of the foreshore and (2) to pay away the money of the corporate body upon the happening of such an event as is set out in the conditions, they will be good enough to intimate the same to me.

I point out merely in self-defence that the question arises although evidently not intended.

As to the fifth question contained in your letter and enquiring as to the expediency cf certain actions on the part of the Board, the Board will see that all responsibilities for work to be done by the Board in the execution of its duty must rest with the Board itself, and my office must necessarily be restricted to the legal position of the Board, its powers and responsibilities.—l have, &c.

W. L. Rees. Cr. Lewis asked if any formal acknowledgement of the letter and cheque had been made by the Board. The Clerk replied in the negative. Mr. Kenny was of opinion that the Board was complete master of the situation, and could either go on with any old agreement that might be supposed to exist, or make fresh arrangements. The Chairman read the following letter from Common, Shelton A Co. :— Common, Shelton awl Co.'s Letter. Having received no notice from you as to the sale of our properties, and never having received any intimation from you of the result of such sale, we are somewhat surprised at the action which we understand your Board is taking in the matter. Without prejudice to any action we may hereafter take should our offer be accepted, we herewith tender you the sum of three pounds fifteen shillings sterling being amount of one fourth of the upset rental placed on the land.—Yours, Ac., Common, Shelton & Co.

Mr. Lewis moved “ That the cheque be not accepted as a quarter’s rent of the foreshore.” It was not necessary for the Board to give any notice to the firm of the sale, as Mr. Shelton was present at the meeting when the upset price was fixed, and the sale was fully advertised. The Board were not in a different position to what they were before the sale. Mr. Joyce seconded. The Board had ample grounds to go on. The Board might be very thankful that the sale had fallen through, and he hoped the next arrangement they made would be more beneficial to the ratepayers. Mr. Brown moved as an amendment “ That the cheque be received.” He was opposed to risking a lawsuit. Mr. Kenny would feel inclined to second the amendment, but saw a difficulty. If they accepted the cheque they must look what they were doing. The first part of the letter was mere bunkum and might be taken for what it was worth. It was not safe in dealing with Common A Shelton to act on inuendocs. Subject to their agreeing to the terms proposed by the Board and paying all expenses the Board had been put to—if they were inclined to eat the leek and go on with the old arrangement—he would agree with Mr. Brown. If it was a good arrangement to make six weeks ago it should be good now. He would suggest that the Clerk ask for specific terms

as to what Common & Co., intended to do. Their previous conduct had been sufficient to justify them in approaching them at the point of the bayonet. Mr. Brown withdrew his amendment. The Chairman suggested they should consider the advisability of reverting to the old arrangement and accept Common & Co., as tenants at the terms stated. Mr. Lewis rose to order. He was as much against going to law as anyone, but he thought they should not agree to the conditions of sale. The absurd valuations put on the buildings prevented any bidding at the sale, and he was utterly opposed now to giving them the land on the terms of £l5 per annum. They did not agree to the valuation but were forced to the action they took. Mr. Kenny said the point at issue was whether they should go on with the old arrangement, Mr. Joyce spoke very strongly against going on with the old arrangement. Common and Co. had been working all along on threats. He would say cither make a fresh arrangement or dispossess Common and Co. at once. The Chairman said it was all very fine to try and dismiss the matter in that way. Old agreements would be reverted to. As far as ho could see the Board was just in the position they were before the sale, Mr. Rees admitted it would be a difficult matter to eject them. If they succeeded and got the foreshore what would they gain? They should consider every point before dismissing it. It seemed to him they should decide whether to accept them as tenants or not. Mr. Joyce would have no objection to entering into fresh arrangements and on a different footing. They made the arrangement believing the buildings would be valued at a fair price.

Mr. Kenny thought it a great misfortune to press the motion in the form proposed by Mr. Lewis. He moved an an amendment “ That the cheque be held over pending the discussion of the Board as to whether they would accept Common & Co. as licensees upon the terms of the conditions of sale.” The question would then be put, which would test the feeling of the Board. Mr. Brown seconded. Mr. Lewis merely moved that the cheque should not be accepted as a quarter’s payment.

The amendment by Mr. Kenny was carried unanimously. The Chairman said the question now before the Board was whether they would accept Common & Co. as tenants under the terms proposed. Mr. Kenny moved “ That this Board is prepared to accept Messrs. Common, Shelton and Co. as licensees of the foreshore upon the terms of the conditions of sale, provided they pay Mr. Rees’ bill of costs.” He thought it was unnecessary to enlarge on the question. Mr. Brown seconded. Mr. Joyce proposed as an amendment: “ That owing to Common, Shelton and Co. having failed to comply with the conditions of sale the Board decline to accept them as tenants under those conditions. Mr. Smith made a lengthy oration. There were conditions which if the members had considered at all, would never have been introduced. He thought the fact of introducing the question of buildings in the conditions was a great mistake. The tendering of the cheque was the first evidence given by Messrs. Common and Co. of the Board’s title 'to the land. It was obvious that every opportunity had been given to Common and Co. to come to an amicable arrangement. They thought there was an object to be gained by their not attending the sale, but had received contrary advice since, which accounted for their tendering the cheque. The Board was in a stronger position than they had ever been. They had no guarantee that further negotiations with Common and Co. would end their troubles ? . None whatever. He did not see why they should accept £l5 now. It was absurd that the Board should again place themselves in the false position they held when the property was offered for sale. He thought Common and Co. should be content to sit on the property at a rental of say £45 a year with the advances proposed. He would suggest that a new contract be put to them embodying the saving clauses in the conditions already drawn out.

The Chairman thought the course to be pursued had not been shown. He believed by voting for the resolution he would be forwarding the interests of the ratepayers. (Voice —No.) The amendment by Mr. Joyce was then put, the voting being—Aye : Joyce, Moore, Smith, Lewis. No : Kenny, Brown, Townley, Hepburn. The Chairman gave his casting vote against the amendment.

For the motion the voting was nversed, and the motion was therefore carried.

Mr. Kenny moved that the matter be left to a committee, consisting of His Worship the Mayor, Messrs. Kenny, Brown, Townley, and Smith. Mr. Hepburn seconded. Mr. Brown moved “ That the matter be left in the hands of the committee who have already been dealing with the subject.” Mr. Moore seconded. Mr. Lewis as one of the original committee declined. He agreed with Mr. Kenny that the matter should be left in the hands of gentlemen favorable to a settlement. Mr. Brown withdrew his amendment. The motion was carried. Mr. Lewis moved, “ That Common & Co., be informed of the resolution come to to-night and that the cheque is not accepted, but held over in the meantime.” Mr. Moore seconded.—Carried. Mr. Rees’ claim of £8 Bs. was passed for payment. The Board then adjourned.