HEAVY TRAFFIC BY-LAW.

Shannon News, 11 July 1922, Page 3

HEAVY TRAFFIC BY-LAW.

' HUTT COUNTY'S . PROHIBITION I : INVALID. I CASES DISMISSED BY THE . MAGISTRATE. , The S.M., Mr J. L. x Stout, gave judg- j ment at Otaki this week in the cases' in which the Hutt County Council charged W. Doyle and W. J. Close with driving a motor lorry, weighing over three tons, over the Paekakariki Hill, contrary to the Council's by-laws. The Judgment was as follows: The defendants are charged with breaches of a by-law of the Hutt County made on January 18, 1922. ft is admitted that defendants drove motor lorries over the Paekakariki Hill without obtaining a permit as requested by the by-law, and that the lorries with their loads weighed upwards of three tons, hut it is contended that the bylaw in question is invalid because (l) It is ultra vires and (2) it is unreasonable. The powjer of a County Council to regulate "heavy traffic" is contained in section 139 of the P.W.

Act, 1906.; There heavy traffic is defined as meaning "The transportation of any vehicle, engine or machine which itself, or together with anything or things being transported thereon, weighs more than l£ tons avoirdupois to each pair of wheels." See sec. 139 (1) (a). Sub-sections (b) and (c) have no reference to the bylaw under review. It will be seen that the by-law does not follow the definition set out above, but seeks to prohibit the passage without permission over certain portions of the roads within the county of "any goods cart which with its load shall weigh upwards of three tons." It will be noticed that no reference is made to the number of pairs of v wheels of such goods- cart. The by-law is therefore plainly ultra vires if a goods cart had three pairs of wheels, and that being so, it must in my opinion be held to be bad altogether. Apart from this point, it is inconsistent in that no provision is made for a license fee where the load exceeds three tons. A goods cart therefore which weighed over five tons if granted permission to use the road could not be charged a fee.

This is unreasonable. The County Council has no statutory power to refuse permission if they provide that an understanding shall be given to make good any "special damage," and such an understanding is given. Counsel for the defendant stated their reasons for submitting that the by-law was invalid, but if my view is correct it is unnecessary to discuss them. here, but it does seem to me that the imposition of a fee of £3 a trip is unreasonable, as it practically amounts to a prohibition of the user of the road, and further, as the Council have already required an undertaking to makegood "any damage." Here again the Act only allows provision for such an undertaking as io "special damage." See sub-section (c) of section j 139, and the Council have in this instance again failed to follow the wording of the Act, and in my opinion have gone outside their powers. "Special damage" in s.s. (e) must mean something different from "damage" in s.s. (b). The latter no doubt means the.ordinary wear and tear likely to result from heavy traffic while "special damage" no doubt means.the destruction or damage to a bridge, etc., rendering the road unfit for traffic. The by-law is clearly not made under s. 151. In my opinion, therefore, the

by-law is apart from any question of unreasonableness ultra vires of the Council and invalid. I think also, without discussing the question in detail, that the by-law is unreasonable when tested by the principles laid down by Denniston and Edwards. U , in McCarthy v. Madden, 33 N.Z.L.H., 1251 at p.p. 1268-1270, as an undue interference with a main arterial highway. The informations must therefore be dismissed with costs to the defendants, £3 3/ on each information." .