TEST CASE

Rotorua Morning Post, Volume 2, Issue 285, 27 July 1932, Page 5

TEST CASE

council wins PROPERTY OWNERS MUST PAY HALF FOOTPATH COSTS. IMPORTANT JUDGMENT. A decision which affects a very large number of property owners in Rotorua was given in the Rotorua Magistrate's Court yesterday afternoon by Mr. S. L. Paterson, S.M. when he delivered judgment for the Rotorua Borough Council (Mr. J. D. Davys) in a claim against Mrs. S. C. Mansfield (Mr. E. Roe). The c laim was for half the cost of laying a footpath on the Whaka Road fronting defendant's prtsp^"^ erty, and an amount of £14 with costs £4/2/ - was awarded out- of a claim for £17/19/4. The statement of claim b"y'~the borough set out that during November, 1929, the council made improvements to a footpath in Fenton Street /Whaka Road), costing 4/- per sq. yard, and that by resolution of the council on July 31st, 928. one half of the total cost of such improvements was imposed upon the owners of the land and buildings fronting the said improvements. The defendant's share amounted to £17/19/4, and fchough pr op^r demands had been made, she had failed to pay it. Counsel for defence admitted the validity of the resolution. F. C. Bunyard, borough engineer, gave evidence as to the work haviiig been carried out during October.' He had been on holiday during October, and in November meii wei'e -praying tar on the Whaka Road." An "rerage of the cost was taken' -ovei* fhe whole job, and individual sec^tions were not costed. The charge of 4s 1.3d per yard was a reasonable cost. . '• ••"• To Mr. Roe: No record of each property-owner's individual sectioh was kept. The job was completed by the end of November, 1929'. Witness did not agree that the work in this case and Falloona's. were different. Perhaps Mansfield's "Was slightly better owing to improvements in materialsj'though there was •.ractically no difference in the actual costs. \ No second coat — as charged for in the statement of claim— had been applied. but it would be done "this coming summer. Provided nothing went wrong with the base no hartti would occur if the coating was left as it was for 6 years. It was true that there were little holes appearing in the surface. These would occur any where, and they let the water in and tended to disintegrate the ' JUi'face. The holes were also liable to come in the second coat. Fal^ona's was completely watertight, md no holes had yet appeared. Witness said that the path was a oermanent improvement. Witness could not say whether it was a_fetep in a progressive- scheme of improvements. Re-examined hy Mr. Davys, witness r-eiterated his opinion that the Work done was a permanent improvement. John William Dinsdale, borough foreman, said he had supervised the work opposite Mansfield's place. The work was of a permanent nature. ' The Defence. For the defence Mr. Roe dealt with the time which had elapsed since ihe work had been done, the perman?nce of the work, and the cost of the work. He claimed that the money came due on the day the work was done. He quoted the Bench in a decision at Matamata that the charge was barred by statute. Dealing with the cost, Mr. Roe claimed that £17 19s 4d was too much since the cost of the second coat should be deducted. The borough council could not give details of the actual costs. The borough should be able to do .this to be in strict conformity with the Act. He considered that the court was being asked to give judgment on v/hat was purely guess-work. Also it was not fair to the man in town to be loaded with the extra costs of the work done out of town. Average Only. The Bench considered that it would be unreasonable to ask the borough to keep all the individual quantities for each man's frontage. The aVerage was the only sensible method. Touehing on the question of the permanency of the work Mr. Roe submitted that the Bench had found that in Falloona's case the matter ■ was a question of fact. He submitted that Mansfield's work Was'not permanent. It was purely a step in a scheme, and if the borough. was going to charge for each step it was going to he a pretty costly matter for property owners. In any case the work was not finished. therefore it could not be permanent. His Woi'ship: There' s a granife monument in Edinburgh which. is not finished, but its certainly permanent! His Worship's Judgment. The Bench, in delivering judgment, said that it was evident that the work was of a permanent nature. In connection with the figures, the averaging of the costs was the only reasonable method of computation to arrive at an equitable basis. In respect of the costs also, it would he equitable to deduct the cost of the second coat which had not been applied. He would reduce the cost per square yard to 3/4, the total amount coming to £14/19/-. Judgment would be given for the borough for £14, plus costs £4/2/-. After entering judgment the Bench asked the council's solicitor, Mr. J. D. Davys, to draw the council's attention to the woi'ding of its resolution stating that it should, frame future similar resolutions setting ou't the cost of the work, viz. "half the cost of (an area) namely (sum) or the frontage of (block) ." Mr. Davys promised to convey this to the couiicil.