Main Roads Act Amendment Act 1938 (WA)

No. 29.] Main Roads. [1938.

MAIN ROADS.

2° and 3° GEO. VI., No. XXIX.

No. 29 of 1938.

AN ACT to make provision in the Main Roads Act, 1930-1937, authorising the construction of motor traffic passes and gates in and across main roads and developmental roads.

[Assented to 31st January, 1939.]

BE it enacted by the King's Most Excellent Majesty,by and with the advice and consent of the Legis- lative Council and Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows:—

Short title. 1.

This Act may be cited as the Main Roads Act Amendment Act, 1938, and shall be read as one with the Main Roads Act, 1930-1937 (No. 5 of 1930 as amended by the Acts No. 2 of 1932 and No. 3 of 1937), hereinafter re- ferred to as the principal Act.

NOW section. 2.

A new section is inserted in the principal Act after section twenty-seven as follows :-

Authority to

construct	27A. (1) For the purposes of this section the
motor traffic

posses and	term "motor traffic pass" means a contrivance con-
gates in and
across main	structed in a gap in a fence crossing or near a road,
roads and de-
velopmental	which is designed to permit the passage of motor
toads.

1938.] Hain Roads. [No. 29.

vehicles but to prevent the passage of livestock over

or through such a contrivance.

(2)

Where before the commencement of this sec- tion a main road or a developmental road has been constructed under the authority of this Act through land enclosed with a fence, and a gate has been con- structed in such fence at the place where such road passes through such fence to permit the passage of traffic along the road through the enclosed land aforesaid, it shall be lawful for the Commissioner, in the case of a main road, and for the local author- ity in the case of a developmental road at any time after the commencement of this section, subject as in this section hereinafter provided, to construct in such road for the use of motor vehicles passing along such road a motor traffic pass near or next to or in the place of the gate aforesaid. Provided that if a motor traffic pass is constructed in the place of such gate, the gate shall be re-erected in the fence near or next to such motor traffic pass.

(3)

Where, after the commencement of this section, the Commissioner, or a local authority when acting as the agent of the Commissioner, acting under the authority of this Act constructs any main road or any developmental road through any land (whether freehold or leasehold) which is enclosed with a fence, it shall be lawful for the Commissioner or the local authority, as the case may be, subject as in this sec- tion hereinafter provided, to construct a motor traf- fic pass in such road at the place where the road passes through the fence aforesaid and also to con- struct a gate in such fence near or next to such motor traffic pass, with intent that the motor traffic pass may be used by motor vehicles and the gate by motor vehicles and other traffic.

(4) Every motor traffic pass constructed under the authority of this section shall be of such nature, design and material as shall be approved by the Com- missioner.

(5) Every motor traffic pass constructed under the authority of this section shall for all purposes in law and equity be deemed to be incorporated in and be part of the road in which it is so constructed

No. 29.] Main, Roads. [1938.

save and except that neither the Commissioner nor the local authority shall be liable in the event of livestock being injured or killed in such motor traf- fic pass or if any person lawfully using such motor traffic pass sustains damage, whether personal or otherwise, unless due to the fact that the motor traf- fic pass has fallen into disrepair through neglect of a statutory duty by the Commissioner or the local authority, as the case may be.

(6) Provided that, and notwithstanding anything to the contrary contained in this section

(1) except where the road constructed as afore- said passes through enclosed land held on pastoral lease, or for pastoral or grazing purposes only, no gate or motor traffic pass shall be constructed in any fence on such enclosed land, if in accordance with the next following paragraph hereof the registered owner or registered lessee of the enclosed land objects to the construction of such gate or motor traffic pass;

(ii)    where it is proposed under the authority of this section to construct a motor traffic pass in any road or a gate in any fence enclosing land, other than land held on pastoral lease or for pastoral or grazing purposes only, such motor traffic pass or such gate shall not be constructed until after the expira- tion of one month's notice in writing of such proposal served upon the registered owner or registered lessee of the said land, and then only if such registered owner or registered lessee has not by notice in writ- ing to the Commissioner or the local author- ity, as the case may require, objected to the construction of the proposed motor traffic pass or gate;

(iii)    any registered owner or registered lessee who has received from the Commissioner or the local authority the notice provided for in the next preceding paragraph hereof may within the period of such notice, by a notice in -writing under his hand served on

the Commissioner or local authority, as the

1938.] Main Roads. [No. 29.

case may require, object to the construction of the motor traffic pass or to the gate mentioned in the notice received by him as aforesaid; and when such notice of objec- tion is received by the Commissioner or local authority, and thereafter until such notice of objection is withdrawn by the ob- jector, the motor traffic pass or the gate objected to shall not be constructed.

(iv)    Before any notice as required by paragraph (ii) of this subsection is given, or at any time during the currency of any such notice which has been given, the registered owner or registered lessee affected may consent in writing to the construction of the pro- posed motor traffic pass or gate, and such consent shall constitute a waiver by such owner or lessee of every objection by him to the construction of such motor traffic pass or gate.

(v) Where any motor traffic pass is constructed under the authority of this section in a road which passes through a fence which is a rabbit-proof fence constructed by the Government under the authority of the Rabbit Act, 1902, or is a rabbit-proof fence within th.e meaning of the Vermin Act, 1918, the motor traffic pass shall be of such na- ture, design and material approved by the Commissioner as will prevent the passage of rabbits over or through such motor traf- fic pass.

(7) The expense of constructing under the autho- rity of this section any motor traffic pass or gate

shall be borne by the Commissioner ; th.e expense of

keeping any such gate in thorough repair shall be

borne by the owner of the fence in which such gate

is constructed; the expense of keeping in thorough

repair a motor traffic pass constructed in a main

road shall be borne by the Commissioner ; and the

expense of keeping in thorough repair a motor traffic

pass constructed in a developmental road shall be

borne by the local authority charged by the Act

with the maintenance of such developmental road.

No. 29.] Alain Roads. [1938.

In ease of default by the owner hi keeping a gate in thorough repair the Commissioner, where the gate is across a main road, and the local autho- rity where me gate is across a developmental rold. may affect all necessary repairs and recover the expense thereof from the owner in default as a debt owing by him in any court of competent jurisdiction.

(8)

Where a gate or a motor traffic pass and a gate have been constructed under the authority of this section and the road in which or across which such motor traffic pass or such gate has been con- structed passes through enclosed land from which. a portion has been resumed for the purposes of such road

(9)

(a) neither the Commissioner nor any local authority concerned shall be liable to fence or to bear the cost of fencing along the sides of the road where it passes through such enclosed land; and

(b) if the owner of such land or ztlly person claim ing under him makes a claim for com- pensation in respect of such resumption under the provisions of the Public Works Act, 1902-1933, then, notwithstanding any- thing to the contrary contained in the said last-mentioned Act, such claim shall not include any amount of compensation in respect of the cost of fencing along the sides of the said road as being damage suffered by the claimant by reason of the construc- tion of the said road through such enclosed land.

Citation of 3. The principal Act as amended by this Act may be

principal Act

as amended. cited as the Math Roads Act, 1930-1938.