THE KOHE KOHE GATE CASE.

Pukekohe & Waiuku Times, Volume 5, Issue 181, 9 June 1916, Page 2

THE KOHE KOHE GATE CASE.

Counsel's Arguments. Judgment Reserved. Legal argument in the adjournal , * Kuhe Koiie gate case w°s h;ard before Mr F. V. Fraz-r, S. M., at the Auckland Magistrate's Court on Tuesday la3t. Mr A. Hacna fcr the defendants, the Franklin County Council, quott-d section 12f from the IJjbljcl J jbljc Works rtct which authoris d iht- Council to grant permission to hnd owners 111 3pars:ly set" led localities to erect gates serosa roads, This power, he admitted, was curtailed to some extent hy section J2O. which provided tha' it five or more rcpidents petitioned the. Courcil tor the removal of a gnte en the gourd that it was a public inconvenirnce the Council could order it* removal. The same section provided tor an appeal to a maaiitrate should the Council refuse to make an or.ler. It hud b.un contended bv the petitioners, Mr William Uouj'lis, senr , and Mr J. 1. Douglas, that the Council had acted improperly in taking any r.otice of the hardship which would be inflicted on Mr Kenall if the gate were to be removed, but he submittsd that the Council was quit? justified in considering Mr Kenall's position, an stction 124 was obviously framed in the interests of owners ot land. However, the County Engineer had also given reasons against the removal of the gite in that the rond was verv little used, and would be costly to torm and maintain. Mr Hanna went on to argue that the Court, whoa: decision was final, must require wry strong and exclusive evidence before it could take, the responsibility or reversing a considered decision of the Council which had bcei arrived at after an inspection and report by the County Chairman and County Engineer. He submitted that the o-.ly evidence as to the public incorvenience caused by the presence ot the gate was that of Mr Uoiißlas aod sime relatives ot his. '1 lie County Chairman had stated in evidence tint there were many other gates in a eimihr position throughout the County. Until funds wore available for lnrming the road persons with vehicles could not be affected hy the existence of the gate. Pedestrians and horsemen sjifered no lncjnvenience. Some cattle drivers had expressed the opinion that the gate was inconvenient, but the cattle traffic was by no means large in volume and was subj ;ct to the state of the tide,

Mr Ostler, tor tne petitioner?, opened by referring to the cotnmonHw right of all persons to the free use ot the King's highway. The road in question was laid down ai a road 25 years ago, when do doubt the district was sparsely settled, but the population had since increased. Me submitted that the fa'ct that the signatures of only live ratepayers to a petition were necessary to bring fhe matter before the Council showed that the question' of numbers was not of vital impor tance in considering whether the inconvenience was a public one. The evidence showed that the residents all used the road to go to ♦ha beach. If the gate were not removed tLe road would not be formed, for cattle would tear the formation down unless it were fenced. The Court should consider the potential use of the road aa much greater use would be made of it if it were formed and fenced. One witness had stated that he made 20 trips with cattle over the road in the year, while others had said that the road n question afforded the most direct route for them. The Court must consider the cumulative effect of the evidence. He cited the decision ot Mr Justics Edwards in fly Morgan v. Loughlin and the Cambridge Koad Board, in which the learned Jud«e h;d stated that although the Magistrate was justified in taking into consideration the decision of the local authority he should remember that he was thero to prevent it from misusing its powers. He (Mr Ostler) submitted that tho Council had, doubtloss, in good faith boon unduly swayed by tho (juestion of hardship to Mr Rouall and iu conclusion remarked . that ho could not see how the existence of othor gatos iu other parts of the district could possibly affect the position in that case. The Magistrate intimated that he would givo his docision at the earliest opportunity.