COMMON LAW RIGHTS

Rotorua Morning Post, Volume 2, Issue 310, 25 August 1932, Page 3

COMMON LAW RIGHTS

MUST BE PROTECTED ANY INROAD BY CORPORATION MUST BE CLEARLY DEFINED. BOROUGH AT FAULT. In view of the keen interest talcen by ratepayers in the case decided on Tuesday by Mr. S. L. Paterson, S.M., coneerning the Rotorua Borough Council's rigbts to charge property owners with half the cost of footpaths . along their street frontages, some further details of the proceedings are given to-day. In yesterday's issue it was only possible to give the hare facts of the decision. Outlining the case, it may he said that Mr. W. A. Carter, who represented the defence, opposed the claim of the council upon several grounds. In the first place, he contended that while the law gave the council power to charge half the cost "of footpaths," they had to he permanent, whole footpaths, and not footpaths half-made. Secondly, the council's foreman was unable to say that the footpath' was completed in July, 1928. Thirdly, to he sufficient, a resolution of the council had to state the streets to be dealt with and the cost to the owners. The purport of the resolution should, also, he conveyed to the owners. As the charge could he recoverahle as a rate the proper procedure of the Rating Act should he followed. The hare resolution was not sufficient. Finally, J the report of the foreman on May 31, 1928, said the pei*manent footpath had heen completed out of loan money. In August, 1929, there was a report of surfacing with coldfix. If the per- , manent footpath had heen completed 1 four years ago, the half cost was irrecoverable. Mr. E. Roe, who appeared with Mr. Carter, said it was clear that if the work was done three or four years ago the amount could not be recovered. The evidence went to show that the work had been completed in 1928. There was nothing to show that one, two, or three coats of surfacing were necessary to make the work permanent. Right to Recovery. Mr. Davys held that the period did not run from the date upon which the work was completed, but from the time when the rate was demanded. He thought it might he taken that the demand should be made within a reasonable time after the completion of the work. The cost was recoverahle as a rate, and a rate was not due until demanded. With regard to the two coats of surfacing put on the footpaths, he held that the evidence went to show that they were part of the permanent work. With regard to the invalidity of the resolution, he pointed out that the adoption of a report by a council was equivalent to a resolution. Magistrate's Finding. In giving a considered judgment, Mr. Paterson said a number of defences had been raised, but the position appeared to him to he this: Defendants were owners within the meaning of the Act of certain land in Eruera St. In May and June of 1928, the council asphalted the footpaths opposite defendant's property. After August 31, in 1929, another coat was applied. The first coat was certainly a permanent improvement, hut the second put on in 1929 was maintenance. No reason was given for the lapse of time — over a year — in applying the second coat. Evidence was given to show that the other surface had deteriorated and had to be repaired. In his report, the foreman described the first coat as permanent and the second as maintenance. The next puint raised was regarding the time allowed for the legal recovery of the money. Iln the case decided by him at Matamata it was laid down that these costs could not be recovered three years after they were first recoverahle. The question had now arisen as to whether defendant was liable to pay for work done in 1928. When did the charge become payahle ? Upon the completed work? When the council decided to make the land-owner liable, or when the rate demand was first made? In the Matamata case it had

heen decided that the charge was recoverahle as a rate," and the provisions of the Rating Act therefore applied. Care Necessary. The provisions of the Act must he strictly provided for. The first step j necessary was the sending out of a ; demand hy the person duly qualified to do so. Mr. Justice Edwards had ruled that the issue of a demand under the Act was a condition precedent to recovery. A rate could not he recoverahle until it became payahle. j Therefore the money did not become I due until the demand had heen made. J In this case the demand, or resolution j proposing to charge for this impi'ove- j rnent, was not made until 1931 As . the demand was a condition preceding recovery of the rate, and as 110 time is fixed in which the demand could be made, he considered that demand must he made within a reasonable time. In this case the resolution was passed in July, 1928, and no demand was made until February, 1931. Tliat was not a reasonable time and therefore no proper demand had heen made and the money was not recoverahle Resolution Faulty A further question raised was the adequacy of the resolution passed imposing the cost. In Section 179 of the Municipal Corporations Act, power was given to impose the cost, hut no procedure had heen laid down. A corporation, such as a borough, carried out its corporate wishes by means of resolution, and so, to exeriee its pewer, it must pass proper resolutions adapted for that end, and they must he clear ajid definite. The section of the Act made an inroad into the liberty of the suhject — taking away certain of his eommon law rights— -and if it had been decided to take away any of those' rights it must be done with certainty and precision; so the resolution of the council must he interpreted as a written document, an admitted conversation or a eon-

which should he the definite meaning of the resolution. Not Clear. The resolution did not describe the subject or ohject. It did not say what footpaths, what land or what improvements it applied to. There were no means by which these facts could he ascertained from the resolution itself. It was quite silent on these facts. The whole thing had heen left in the air. The resolution was only a statement of the council's policy. Furthermore, the plaintiff council sought to recover payment for, work done before and after the passing of the resolution. The whole matter was indefinite, and the resolution void and uneertain, and the council could not succeed. In order to pass a resolution which would enahle the council to recover it would he necessary to specify the street or streets to be done, the work to he carried out and the proportion of the cost it was proposed to impose upon owners. Further, after passing such ■a resolution the council should immediately give notice and make demands on the persons coneerned. He would suggest that the clerk or some other officer of the council should prepare a statement of the cost of the work, the streets and owners affected, and the resolution of the council should incorporate that statement, and it could then he set out with particularity and. clarity. It would also be right to give the persons affected an oppvortunity to object to the proposals. It was a pity that the objections had not heen raised/vvith more particularity before, hut that had not heen done. In reply to Mr. Davys, who said the judgment was most important to the council, Mr. Paterson agreed to supply a written decision. Mr. Roe's cases were adjourned until September 12.