“The same proceedings may be taken and the same powers may be exercised in respect of any street or road of which a part is or may be a public footpath or repairable by the inhabitants at large, as fully as if the whole of such street or road was a highway not repairable by the inhabitants at large” (38 & 39 Vic. c. 55, s. 150).
One has only to look at the number of footnotes that follow this clause both in “Glenn” and “Fitzgerald” to see that it requires some considerable interpretation. I propose in this chapter to call attention to some of its engineering discrepancies and to point out the duties of the town surveyor in connection with its enforcement.
First then, I conclude that it is the duty of the surveyor to call the attention of the urban authority to the fact that any street within his district (not being a highway repairable by the inhabitants at large) is not “sewered, levelled, paved, &c.” but there is no express order for him to do so, but with whoever this duty rests, it is no doubt the surveyor’s duty to be certain that the street in question has never been dedicated to the public or repaired at the cost of the rates, but is really a private street within the meaning of the Act.
Before proceeding to give the manner of putting the 150th section into force, it is necessary to draw attention to some of its wording.
The word “sewered” no doubt is also meant to include all drains both for house sewage and surface water falling on the street, &c., and may be used in the same comprehensive manner that the word “sewerage” is generally employed.
“Levelled” is also rather a vague term, but it has been held to refer only to the level or cross section of the street itself, there being no power to charge the adjacent owners with the expense of altering the level of the street so as to make it conform to a street with which it connects. The word “formed” would in this case have therefore been a more appropriate phrase.
“Paved, metalled, flagged, channelled and made good” are very precise directions, but why both the words “paved” and “metalled” are used is not clear. Is the paving to be placed on the top of the metalling or vice versâ? It seems ludicrous to have used both words. The word “kerbed” also ought no doubt to have been inserted, as no street either urban or suburban can be formed without this necessary adjunct.
These very precise directions, if carried out in their entirety, would cause great injustice to the adjacent owners of the property who had to bear the expense, for although “paving” and “flagging” may be necessary for streets situated in a town itself, they would be perfectly unnecessary for a suburban road, and it is to this latter class of work that the section is more frequently applied. There are generally very few badly maintained private streets in the heart and busiest parts of a town, much difference of opinion consequently exists in different localities as to what the requirements shall be.
Some urban authorities insist that the roadways shall be paved with granite setts or wood blocks, the footpaths being flagged or paved with asphalte, while others are content with ordinary macadamised roadways and gravelled paths.
There can be no doubt that the town surveyor must use considerable discretion in deciding what class of work should be demanded, and he must be greatly guided by the situation and requirements of the street in question and the description and value of the adjoining property.