FRONTAGE OWNERS' LIABILITIES.

Pukekohe & Waiuku Times, Volume 7, Issue 398, 6 August 1918, Page 1

FRONTAGE OWNERS' LIABILITIES.

MAGISTERIAL DECISION. Judgment was given by Mr. F. K. Hunt, S.M., at the Auckland Court* house on Saturday in the test cue by which the Pukekohe Borough Council, the plaintiffs, sought to determine their powers to charge frontage owners under Section 167 of the Municipal Corporations Act with half cost of kerbing and channelling footpaths on which their respective properties abutted, the defendant being Mr. B. F. Webster, settler, of Pukekohe, who was sued for £8 Is in respect of his proportion of half the expenditure incurred on works executed on the footpath on the road known as Prospect Terrace. Evidence was taken at the last sitting of the Pukekohe Court, and the case was then adjourned for legal arguments to be heard in Auckland, as was done last Saturday. Mr. J. G. Haddow, who represented the defendant, stated that the defence rested on the history of the road, namely, that all the requirements of the then governing local authoority, viz., the Pukekohe Town Board, were fulfilled before the road was taken over, and that accordingly frontage owners could not be charged with subsequent expenditure on it. In support of his contention he quoted a decision given in 1904 by Mr. Justice Cooper in the case of the Mayor and Corporation of Wellington v. Trickett, in which the Corporation sought to recover' half cost of asphalting a footpath that had been made some years previously, the Judge's ruling being that original construction could only be made the subject of a charge, whereas the asphalting was not a new work but only an improvement of the footpath, judgment being given for the defendant Trickett. He (Mr. Haddow) contended that the facts in Mr. Webster's case were identical with those of the Wellington case. Prospect Terrace, he said, was formed some ten years ago, and was formed to the satisfaction of the Town Board, and he argued that kerbing and channelling as recently executed on it constituted an act of maintenance and not of original construction. Mr. Haddow also cited a judgment given in 1903 in the Queen's Bench Division of the English Courts (Vestry of St. Giles, Camberwell v. Hunt), wherein the Court held that if a footway was once adequately constructed a local authority could not levy a charge on the adjoining owners for altering its character to a more permanent nature in the way of paving it. Maintenance, he added, had been defined by Judge Jessel in the English Court in 1879 as covering alterations, repairs, and improvements.

On behalf of the Council, Mr. E. W. Inder stated that His Worship's ruling would be of great importance to all new boroughs, and he submitted that the Section of the Act under which the claim was made was expressly inserted to assist rising districts. The cases quoted by Mr. Haddow, he urged, were not applicable to that one, as they, concerned footpaths that had been constructed prior to later works being carried out on them. His point was that when the Prospect Terrace road was formed no actual footpath was made. The road was simply scooped out and was thus distinguished from the footpath, the original surface of which was left untouched except that a little gravel was laid on it. Mr. Haddow, in reply, contended that if a footpath could be distinguishd from a road it was to be regarded as a footpath. In giving judgment, the Magistrate pointed out that when the road was formed the land for it was given by the then two owners of the adjoining property, one of whom was the defendant, whose desire was to cut up his property, the defendant also being at that time the Chairman of the Town Board, which authority accepted the dedication of the road. The evidence given was to the effect that the road was formed by running a scoop over it and throwing scoria in the centre, a little gravel being deposited on the footpath, which otherwise was of grass. Periodically a little repair work had since been done on the road. On receipt in November last of a petition, the signatories of which included the defendant, setting forth that the road and footpath were almost impassable, the Council executed what he (the Magistrate) considered was very necessary work, and work of a permanent character. The case had been very well argued by both the counsel engaged. Mr. Haddow had contended that the Town Board had required a certain standard of construction, which had been complied with. He (His Worship), however, held that no footpath at all was originally constructed, and that therefore no footpath actually existed prior to.the institution of the recent works. He therefore gave judgment for the Borough Council with costs, remarking, however, that if the footpath had even been kerbed with wood or had really been defined his decision would have been different. Leave to appeal, if desired, was granted on Mr. Haddow's request. For Chronic Chest Complaints, W oode' Great Peppermint Cure. 1/6,2/6