NO BATHS FOR DIXIELAND

Sun (Auckland), Volume I, Issue 131, 24 August 1927, Page 9

NO BATHS FOR DIXIELAND

INJUNCTION GRANTED CITY COUNCIL

QUESTION OF PROPERTY RIGHTS

BATHERS will not have the benefit of a new swimming' bath at Point Chevalier next season, as the Auckland City Council was to-day granted an injunction against Dixieland, Ltd., restraining the latter from proceeding with the erection of the proposed baths.

“DESERVED judgment in the action was delivered in the Supreme Court this morning by Mr. Justice Herdman. The claim was for an injunction brought by the City Council (Mr. J. Stanton) to restrain Dixieland, Ltd. (Mr. E. H. Northcroft) from erecting a swimming bath on the foreshore of the Waitemata Harbour at Point Chevalier, in front of certain lands being used hy the council as recreation grounds. There were about 11 acres iti this ground, which was situated on a promontory overlooking the upper part of the harbour. At one point on the property, if there were not at present easy access to a stretch of sandy beach, approaches could be made without difficulty, and at other points it was not impossible to construct convenient passage-ways to the water. It was admitted that the council, as owner and occupier of the reserve, had vested in it a free right at all times, of access to the sea from the reserve at every point along the sea frontage of its property; and that when the tide receded the landowner could pass across the exposed foreshore to get to the water. The defendant company was the proprietor of a dancing cabaret and with a view of carrying on business as a swimming bath proprietor, it obtained on May 7, 1927, an Order-in-Council which licensed it to occupy part of the foreshore immediately in front of part of the council’s reserve and erect swimming baths. PROTEST BY COUNCIL At no time had the council ever acquiesced in any proposal to erect swimming baths or In the granting of an order In council. On the contrary, It had empthatically protested against the issue of any licence in favou of Dixieland Ltd. If erected the baths would extend along the foreshore in front of the recreation reserve for a distance of 100 yards, and out to sea for a dis’. nee of about 50 yards. An inspection of the property proved beyond question that facilities for reaching the reserve and leaving the reserve by water would be of value when the reserve was properly taken in hand and developed. When the tide was in, small boats could come longside the land at some points without difficulty, unless, of course, they were impeded by such a structure as the proposed baths. The bath site had been surveyed and it was not disputed that the defendant company unless prevented by the court intended to proceed with the erection of the baths. “They show, also, that a private right of access enjoyed by the landowner is now of value and will be of greater value when the reserve is developed,” said His Honour. “I think they prove that, 'when the baths are erected, access from the sea and to the sea will be materially interfered with and at some points will be made impossible. I don’t see would be possible to manoeuvre even small craft in the restricted space which will he available at some points between the baths and the land should the structure be proceeded with.” “A PUBLIC NUISANCE” The concession which the defendant company possessed, continued his Honour, had been granted to it by the Crown under statutory authority, and the question was whether the plaintiff council could now step In and by legal process prevent the defendant company from proceeding with its scheme. The legal position of the plaintiff council was perfectly plain. It possessed the general right which the public had to navigate the waters of the Waitemata Harbour sub-

ject to any limitation imposed by Statute. The arm of the Waitemata Harbour upon the soil of which defendant company proposed to erect the baths was, to all intents and purposes, a public highway, and the council enjoyed in common with the rest of the public a right to navigate these waters. “Any interference with this public right of navigation,” said the Judge, “is, however, a public nuisance, which a private person cannot abate unless he can prove \ some injury over and above that suffered by the rest of the pubi ic.” The council has, in addition to the right of navigation, a private right which will be affected if the baths are erected. It therefore possesses, in addition to a general right to navigate these waters, a right to step off boats on to the land from the water, a right to step from the land on to boats, and a right, to pass to and fro across the foreshore, which is left bare as the tide recedes. The law is the same whether the wrong complained is by an owner whose land bounds a tidal river or bounds the sea. RIGHT OF NAVIGATION “Although the public right of navigation and the private right of a landowner to insist upon having access to and from his land are, in a sense, separate and distinct rights, what gives the private right value is the fact that it is linked up with the public right of sailing the waters. So, when a right of navigation is barred by some obstruction, and when a man’s right to get to his land from the sea or from the sea to the land is invaded, the landowner suffers an injury different from others of the public who do not own land so affected. “As matters stand now,” concluded his Honour, “an injury is threatened, and the injury done to the council’s right if the work is proceeded with will be a serious one. I cannot say that if the work proceeds the injury to the plaintiff’s rights will be small. I cannot say that the Injury will be one which could he adequately compensated by a small money payment, but I can say that to grant an injunction would be oppressive to the defendant company. "An injunction will therefore he granted with costs.” •