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Diversion of Roads Ordinance 1857

14. The Diversion of Roads Ordinance 1857.

Whereas certain roads or parts of roads which have been or may hereafter be laid out in various parts of the Province of Canterbury, are not or may not be required as public highways: And Whereas it is necessary that new roads should from time to time be laid out and constructed, parts whereof may pass through land being the property of private individuals, and it is expedient that some general rule should be established for the closing up of such highways as may no longer be required for public use, and for the disposal of the land occupied thereby, and also for fixing the amount of compensation to which any person may become entitled in respect of any damage done to his property by the

construction of any road passing through the same:

Be it therefore enacted by the Superintendent of the said Province, with the advice and consent of the Provincial Council thereof as follows:—

1. Diversion to be by Special Ordinance.

Except as hereinafter provided, no public road shall be closed up or diverted, and no new line of road shall be laid out or constructed, passing over any private lands, except under the authority of a special Ordinance of the Superintendent and Provincial Council in that behalf.

2. All such Bills to be published in the “Government Gazette,” and to be served upon all persons interested in the lands over which the road is proposed to be carried.

Every Bill for closing up or diverting any public road, or for carrying any public road through any private lands, shall be published in the "Government Gazette " of the Province; and a copy of such " Gazette" shall, not less than thirty days

previously to the introduction of any such Bill into the Provincial Council, be served upon every person resident in the Province having any estate or interest in any lands fronting upon or crossed by any such road proposed to be diverted or closed, or in any lands over which any such new road is proposed to be carried.

3. Service of copies of “Gazette.”

Such copy of the "Government Gazette" shall be served upon such person, either personally or by leaving the same at his or her last usual place of abode, if any such can by diligent enquiry be found; and in case such person shall be absent from the Province, or cannot upon diligent enquiry be found, the Superintendent shall cause a notice to be published in all the newspapers of the Province, stating that such copy of the

" Gazette " is left at the office of the Provincial Secretary, and will be given to such person, or to any Agent or Attorney lawfully acting in his or her behalf, upon application for the same.

4. Superintendent may cause highways to be constructed over private lands on certain conditions.

It shall be lawful for the Superintendent at any time to cause a

public highway to be laid out and constructed through any private lands upon receiving from every person, having any estate or interest therein, or from his or her Attorney or Agent lawfully authorised in that behalf, a Deed, duly executed, in the form or to the effect set forth in the Schedule hereunto annexed: And every such Deed shall be published in the "Government Gazette " of the Province.

5. And thenceforth such lands to vest in her Majesty.

From and after the execution of any such Deed, or on a day to lands to be named in any special Ordinance as aforesaid, the land described in such Deed

or Ordinance shall thenceforth vest in her Majesty, her Heirs, and Successors, as demesne lands of the Crown, and there shall be a public highway through and over such land.

6. In case public roads passing through private property be closed up, such roads to become part of such property.

If any public road shall be closed up passing through any private property, the land occupied by such road shall become a part of such property, and shall become vested in the Owner or Owners thereof in the same manner and subject to the same trusts as the remaining part of such property. And if any public road shall be closed up, not passing through any private property, the land occupied by such road shall be deemed to be waste lands of the Crown, and shall be dealt with accordingly.

7. Compensation allowed for damage sustained.

Every person who shall suffer any damage in respect of any public road which shall be closed up or diverted, or in respect of any new road which shall, by virtue

of any such special Ordinance as aforesaid be carried through any private lands in which such person shall have any estate or interest, shall be entitled to receive compensation for such damage to an amount to be ascertained by two or more Justices of the Peace in the manner hereinafter provided.

8. Notices of claims for compensation.

If any such person shall at any time within one year after his claim shall have arisen by the passing of any such special Ordinance, apply to any Justice of the Peace by a notice, in writing, signed by himself or his Agent lawfully authorised in that behalf, setting forth the nature and amount of such claim, such Justice of the Peace shall thereupon issue a public notice, stating that such claim will be heard before two or more Justices of the Peace, at meeting to be held at a time and place to be set forth in such notice not sooner than fourteen days after the issue thereof, and the Claimant shall, seven days at least before such meeting, send a copy of such notice to the Superintendent.

9. Justices to determine such claims.

It shall be lawful for any two or more Justices assembled at such meeting, in case such claim shall not exceed Fifty Pounds, and for any three or more Justices, in case such claim shall exceed Fifty Pounds in amount, to hear and determine the said claim, and for that purpose to examine, upon oath, such person, and all his or her Witnesses, and also to hear and examine, upon oath, all such Witnesses who may appear to oppose the said claim: And the order of

such Justices or a majority of them shall be final and conclusive as to the amount of such compensation.

10. Claims of above £50 submitted to valuation.

If any such claim shall exceed Fifty Pounds in amount, the Justice to whom the said application shall be made shall, by writing, under his hand and seal, appoint a competent Land Surveyor or Surveyors to survey and value the land in question, and to estimate the damage sustained by reason of the proposed closing, up, diverting, or making of any road as aforesaid; and such claim shall not be determined by the Justices assembled at any such meeting unless such Surveyor or Surveyors shall appear thereat, and be examined upon oath touching such value and damage as aforesaid.

11. Surveyor’s declaration.

Every such Surveyor shall, before making such valuation and estimate as aforesaid, make and subscribe, in the presence of such Justices of the Peace, the following declaration at the foot of the said appointment, that is to say:—

I, A.B., do solemnly and sincerely declare that I will faithfully, impartially, and honestly, according to the best of my skill and ability, execute the duty of making the valuation hereby referred to me.

(Signed) A.B.

Made and subscribed in the presence of

12. Consideration in determining the amount of compensation.

In determining the amount of such cornpensation, regard shall be had by such Justlces, not only to the value of the land to be occupled by any such new road, and to the damage (if any) arising from the severance of land thereby, and to the damage (if any) arising from the closing up or alteration of any rights of way affording access thereto, but regard shall also be had to the increase (if any) in the value of such lands arising from the alteration or closing up of such road, or the laying out of such new road, and also to the value of the lands (if any) which shall be added to such property under the 6th Clause of this Ordinance.

13. Costs of enquiry.

The costs of every such enquiry shall be in the discretion of such Justices, and they shall settle the amount.

14. Compensation to be paid as the Justices direct.

All compensation and costs to be paid under the authority of this Ordinance shall be paid to such persons and in such manner as such

Order of the Justices shall direct: Provided always that if such compensation, or any part thereof, shall be found to be payable to any party other than the absolute Owner of the land in respect of which such compensation shall have been claimed, and shall exceed Forty Pounds in amount, the said Justices shall refer a case setting forth the circumstances of such claim to a Judge of the Supreme Court, and shall make an Order for the payment of such compensation in such manner, and to such persons as such Judge shall direct.

15. To be paid out of the Public Revenues.

It shall be lawful for the Superintendent, and he is hereby required to issue and pay out of the public revenues of the Province all such sums as shall be awarded by such Justices, to the person or persons and in the manner by them directed, by way of compensation or costs in respect of land taken for a public road under the authority of any such special Ordinance as aforesaid.

16. Compensation subject to trusts and charges.

All compensation paid under the authority of this Ordinance shall be subject to the same trusts and charges as the lands in respect of which such compensation shall have arisen.

17. Compensation may be paid in waste lands.

If any person entitled to compensation under this Ordinance shall accept in satisfaction thereof a Grant of waste lands of the Crown under the 42nd Clause of the Waste Lands Regulations now in force in the said Province, such Grant

shall be a complete discharge of the claim for such compensation to all intents and purposes whatsoever.

18. Interpretation clause.

The word " person " in this Ordinance shall be taken, in the case of a Corporation aggregate, to mean the principal Manager or Director of such Corporation; and,

in the case of a Lunatic or Idiot, to mean the Committee of such Lunatic or Idiot; and in the case of an Infant, to mean the Guardian of such Infant; and in the case of any cestui qui trusts, to mean the Trustees of such trusts; and the word " road

" shall be taken to include any public highway, bridle-path, or footpath; and any bridge, culvert, embankment, ditch, or other works necessary to the construction or maintenance of the line of such road.

19. Title.

This Ordinance shall be entituled and may be cited as the " Diversion of Roads

Ordinance, Session VIII., No. 14."

Schedule.

Know All Men by these Presents, that I (or we) [here insert the name of Owner or other person having an interest in the lands] of [insert place of abode] being [insert nature of interest, e.g., seized in fee simple] of that part of the rural (or town) section of land numbered on the Map of the Chief Survevor of the Province of Canterbury [here insert description of the land to be occupied by the new road] and delineated and coloured brown in the Plan drawn on the margin hereof, for valuable consideration, do hereby dedicate the said land to the public to the intent tha.t the same may for ever hereafter be used as and be a public highway (or drain) to all intents and purposes whatsoever.

In testimony whereof I have hereunto set my hand and seal this day of ,185

Signed, sealed and delivered by the above named

In presence of us— (Two witnesses)

Notes.

This Ordinance was passed by the Canterbury Provincial Council on 25th June

1857, and assented to by the Superintendent on 30th June. It was disallowed by the Governor as appears below [NZ Gazette, No. 2. 3p.]