KOHE KOHE.

Pukekohe & Waiuku Times, Volume 5, Issue 184, 20 June 1916, Page 4

KOHE KOHE.

EOAD GATE CASE

JUDGMENT FOR COUNTY COUNCIL.

Judgment was delivered by Mr F. V. Era/.ar, S.M., in the Auckland Magistrate's Court on Saturday in the action recently heard before him at the Waiuku Court concerning a gate on a ioid at Kobe Kobe, the plaintiffs, Messrs William and John I. Douglas (Mr 11. 11. Ostler), Becking to compel the defendants, the Franklin County Council (Mr A Hanna), to have the gate removed. The Magistrate, iu bis judgment, stated :

" This is a c miplaint by way of appeal under section 12'J, tub-section 2, of ' The Public Woiks Act, 1908,' against the refusal of the Fianklin County Couucil to accede to the petition of William Douglas and 28 others for an order for the removal of a gate erected across the ioad known as the PehiakuntGip ro.id, at the point where the road intersects the boundary of Lot 247, parish of Waipipi. "The facts are that the road in question runs from Lot 247 through the property of Mr J. A. Ken all for a distance of 71 chains to the West Coa6t Beach, The settlers of the surrounding district make use of the road as a means of access for picnic parties to the beach. It is also used by settlers driving cattle, and by occasional horseman and pedestrians. About 25 years ago, the local authority then controlling the district granted leave uuder section 124 of 'The Public Works Art' to the iheu owner of Mr Kenall's property to place the gate in question across the road, and the present proceedings are brought in order to liave a review of a recent decision of the County Council not to order its removal.

" The law on the subject is contained in sections 124 and 12'» of " The Public Works Act The former section empowers the local authority having the control of a road in a sparsely populated district to permit a person to erect a swing-gate across such road, aud BUch permission is subject to revocation at any time without payment of compensation. The latter section provides that if live or more ratepayers petition the local authority for the removal of any such gate and show that it is or has become a public inconvenience, the local authority shall serve a notice requiring the removal of the gate. If the local authority neglects or

declines to issue such notice, an appeal lies to a fcjtipeudiary Magistrate. The function of the Magistrate is to act as a check upon tbe local authority, so as to prevent it from misusing its powers. At lliu iame time, unless it is clear that the local authority has acted on improper lines or has mistaken the law, 1 do not think that a Magistrate should disregard its considered decision so long as it lias reasonable grounds for coming to the decision. It shoul I always be borne iu mind that the local authority generally has a far wider. knowledge of the district and its requirements than a Magistiate can have, and that accordingly he should have very strong grounds for dissenting from the opiuion of the l"o.il authority before he decides to allow an appeal against its determination. "luthe present cise it appears that the issue has bseu somewhat confused'by reasm tiiat the petitioners having asked for some formation work to be undertaken on the road as well as for the removal of the gate. The former matter is solely for the County Council to decide, and it has stated tint it has no funds available for the purpose. The County chairman and County engineer inspected the locality, and the Council adopted their report declining to accede to the petition, on the ground (1) that undue hardship would be intiicted on Mr Renall, (2 that the road was little used, and (3) that it would be costly to iifca and maintain. I do not think that the Council should have weighed the hardship which Mr Renall might have suffered (in that he would have had to fence the 74 chains of road) against any considerations of the convenience of the public. Permission to erect a gate across a load is a special privilege, and the only matters which the Council should consider when a petition is presented for tho removal of a gate aro the spareaness of tho population of the locality and the inconvenience caused by the existence of the gate. Tbe second and third grounds for the Council's refusal are proper grounds, as they relate to the <[uestion of public inconvenience. 1 cannot held that the locality has ceased to be sparsely populated, and the evidence shows that beyond some slight inconvenience suffered by cattle drovers the gate does not interfere with anyone. The greatest use of the road is by picnic parties, and picuickers are tho only clats of persons mentioned in the petition. It is true that they are inconvenienced, but not by the existence of the gate. Their difficulty is that the roid is

not sufficiently formed to permit of it being used fur vehicular traffic. It wuuld not benefit them to have ttiw gate removed so loug a3 the road remained ui its present condition. It' they were prepared to pay the cost of making the road ht for vehicular traffic, they could no doubt give the Council a guarantee to that ellect, and petition once more for the removal of the gate. As the matter stands at piesent, however, the Council has no funds to expend on little used local roads, and the county engineer is not prepared to recommend the formation of a road which would cost less than £l6O to £2OO. It must be borne in mind, also, that picnic parties are seldom met with except during the summer holidays. The occasional horsemen and pedestrians who used the road are not inconvenienced by the existence of the gate, and 1 have only to consider the position oi the cattle drovers. One settler, who makes about 20 trips a year, is credited with the bulk ot the cattle trallic, and perhaps seven or eight others usa it once a year or oitener for driving cattle to or from the beach. I am not satisfied that much greater Use would be made of the road for cattle driving it the gate were removed, and the evidence as to the real inconvenience it causes to cattle drovers is very conflicting. At all event?, 1 should not be justified in concluding that the (JouLc.l ought to have been satisfied that the gate was a public inconvenience and to have ouercd its lenicval.

"It was apparent during the hearing that tee presentaton of the petition was largely due tu Mr Kenall having assumed that the existecci ot the gate gave him the right to intertere in some degree with the free user ot the road, ibis, 1 desire to make it clear, is not justified by law. ihe right to erect and maintain a gate does not iu any way prevent the public from exercising its right to use the road as Ircely as if it had no gate across it. Another matter that calls tor comment is tbe tact that Mc Kenall, who is a member of the County Council, took part in the discuEßion at the meeting of the Council at which the petition first came up for consideration. This was in my opinion most improper, but it is only fair to add that at a later meeting, when the county chairman and county engineer had luapectcd and reported upon the gate, their report was adopted w'lh ojt uisccsiion.

"I musi dismiss the complaint with £5 is counsel's fee to the County Council. The complainants will be allowed Jg costs on the preliminary legal argument, in which they were euccsßaiul. No witnesses' expenses will be allowed, as the adjournment to a second day would not have been necessary but lor the raising ol a prelimicary question."