PUBLIC CONVENIENCES.

Taranaki Daily News, 19 June 1920, Page 7

PUBLIC CONVENIENCES.

BROUGHAM STREET CONTROVERSY. JUDGMENT FOR BOROUGH COUNCIL. COSTS AGAINST PLAINTIFFS. Reserved judgment has been delivered by his Honor Mr. Justice Chapman in the' case in which the Attorney-General on the relation of Florence Mary Shaw and Claude Horace Weston as plaintiffs, sought an injunction against the New Plymouth Borough Council restraining ths^ Council from erecting a public convenience or urinal in Brougham Street, the business quarter of New Plymouth, on the grounds that it would constitutute a public nuisance and would affect the private property owned by the relators. The judgment of the Court was given for the defendant corporation, with costs against the plaintiffs. At the hearing on May 14, Mr. C. H. . Weston and Mr. Nicholson appeared for the plaintiffs, and Mr. T. F. Martin for the defendant borough. After setting forth the complaints alleged by the plaintiff, Mr. Justice Chapman gives his judgment in the following terras:-^ "The complaints to objectionable smells is premature. It could only be supported at this stage by showing that the giving off of offensive smells must necessarily ensue from the maintenance of the public convenience proposed to be erected. That is not shown. In erecting such a convenience the borough undertakes absolute responsibility to avoid creating this form of nuisance, and there is nothing to show either that it cannot or will not perform its duty. It is enough to say that even if the plaintiffs had authorised the work and the maintenance of it this same liability woul'l have arisen. I may further dispose of a question which was raised as to whether the proposed operation of the Council can be carried out without observing the formalities required by Section 153 of "The Municipal Corporations Act, 1008." Even though the operation has the physical operation of preventing traffic over the part of the street occupied by the convenience, there is no analogy between the cases cited, and in this case a physical obstruction is or may be a nuisance, but its existence does not alter w.hat for convenience may be called the legal status of the land set out as ,i street.

"The first question for consideration, therefore, is whether, having regard to the position, width and steepness of Brougham Street, the Municipal Council is committing a public nuisance in narrowing the fairway of the street in the manner proposed. A great many affidavits Hve been filed and I have had the advantage of inspecting the street. It is a very steep street running down ; nto Devon Street, which is the main street of the town. Looking at the nature of the establishments along the portion of the street in question, I should call it an important secondary business street. It is S3 feet wide. A plan annexed to the affidavit of Mr. E. W. M. Lysons, a surveyor,, shows a motor vehicle standing on each side of the proposed convenience There is available for traffic on the western side 10 feet, and on the eastern side II feet 4in. From this plan it appears thftt if a motor ear stood on either side of the convenience with one set of wheels fn the channel, that side would be blocked. That does not appear to me to decide the question, though it would afford a strong if this were a main street. All I can say is a motor owner ha 9 no right to pull up his car in such a position. His duty would be to select a position where his motor vehicle will not block the traffic against those using the fairway of the street. He must also use care that the operation of his car when combined to the operation of others will not have the effect of causing an undue obstruction .... I am satisfied that in this case those using vehicles can with the most ordinary attention to the claims of others pass this obstruction, which is a few yards in length, without obstructing the traffic. "The Steepness of the street lias been urged as an element adding to the risk. I assume that this is so, but the only result is that some extra care, perhaps a good deal of care, as to speed and management will be called for. I have seen similar structures in streets both here and in England with tlje same tendency to cause obstruction if proper precautions are disregarded, but which hav.i not been found seriously to interfere with the proper use of the street as a highway by the public. In these circumstances there is in the first instance power rented in the Municipal Council to decide upon the propriety of constructing and maintaining such an edifice. To call upon the Cburt to interfere with the exercise of its discretion by the Borough Council requires a very strong case, especially as it is always open to the burgesses to replace the Council by one more disposed to carry out the wishes of the inhabitants if these have been disregarded.

As to the private grievances of the relator plaintiffs, I can only say this: New Plymouth is a commercial town of rapidly growing importance. As it expands the inhabitants • of a town and visitors from the country having business in the town require conveniences of the sort in question. It is always possible that at least when first erected an edifice of the kind is distasteful to the property owners along the street. Hera those complaining ask that it shall be placed somewhere else. This always raises a question as to balance of convenience. If the construction and maintenance of such an institution depended entirely on the wishes of such property owners, it might never come into existence. The propriety of having conveniences of the kind in this town is not disputed by the plaintiffs, who, however, think that their business amenities will be seriously disturbed. I do not agree with this; they may be disturbed to gome extent, but that is not sufficient. ! In course of time people become accustomed to the presence of and to the resort of the population to such a convenience, and its existence comes to be treated as a matter of course. If it were something that was in itslf flagrantly offensive, the case would "be different, but I caijnot so regard this proposed convenience. "This being so and the Municipal Council being charged with certain discretionary duties with respect to health, comfort and convenience of the inhabitants, a discretion is vested in it as ta where such a convenience may be erected having regard to the maximum advantages presented by any particular locality, and having due regard for the interests and tastes of the property owners. Unless there is shown some violation of the. rules which should guide the exereisa

of this discretion, the Court would not step jn and interfere with it, Ido not find such a ground. "Taking the evidence as a whole and having regard to the value of the business establishments along the side of this piece of street, I cannot bring upon myself to overrule the decision of the Borough Council. "Many authorities were cited touching the various questions raised. Ido not think, however, that it is necessary to review these, as the matter has to be decided according to well marked principles laid down in cases decided in England and New Zealand, which both as to the public question and as to private rights throw the onus for making out a case for impeaching the action of the Borough Council upon the parties complaining. In my opinion they have failed to discharge this. "For these reasons the motion for an injunction is dismissed with, £35 costs and disbursements to be fixed by the registrar, such costs and disbursements to be paid by the plaintiffs to the defendant."