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AKAROA BOROUGH BYLAW CASE., Akaroa Mail and Banks Peninsula Advertiser, Volume LXXII, Issue 4409, 3 July 1914
AKAROA BOROUGH BYLAW CASE.
CLAIM FOB DAMAGES AGAINST
At Wednesday's sitting of the S M. Court, before T. A. B B a j] ey , Eeq , S M_, the cases was heard in which C. W. Leete (owner) and N. Mitchell (occupier) of. a oertaiu building in the Borough, claimed from the Akaroa Borough Council the sums of £40 and £25 respectfully for the removal of a building which it was alleged was erected contrary ro the provisions of the Council by law No 2.
Me J. H. Williams appeared for plaintiff*, and Messrs Harper and Geo Harris for defendant Council.
The statements of claim w.ere as fol lows:—The plaintiff, C. W. Leete, sayg that the defendant on 28rd April, 1914, unlawfully entered upon certain
land and premises owned by tbe plafn j tiff situate in the Borough of Akaroa, being part of section 61 in the said borough, and in the occupation of Nimrod Mitchell, of Akaroa watchmaker, and holding from the plaintiff under a weekly tenancy and did un lawfully upon the said land and premises pull down and destroy n, building thereon owned by the plaintiff and in the occupation of the said Nnnrod Mitchell to the damage to plaintiff of the sum of £40, £36 for destruction of building and £4 loss of rent. The statement of claim in the case between Nirarod Mitchell and the Akaroa Borough Council was that tbe defendant on April 23rd unlawfully entered upon certain land and premises in the Borough of Akaroa occupied by plaintiff as weekly tenant from Charles Walker Leete the owner thereof and did unlawfully upon the said land pull down and destroy a building
thereon and commit a trespass upon
the goods and chattels of plainfcm particulars of damages being loss of busi ness £20, damage to chattels £5, total
££25. The case o£ 0. W. Leete v. Akaroa Eorough Council was taken first. Mr Williams said the Council bad
in pursuance of Clause 323 of their bylaw No. 2 served a notice of their action to remove the building and be admitted the service. He called atten tion to Glauses 32 and 278, in the first
of which it was stated fourteen days' notice to erect a building must be given to the Council, in one case and four days in the later clause. The plaintiff in applying for permission for the erection of the building did so un der Clause 278. This case had been decided against defendant at the April sitting of the Court. The defendant I Council then served a notice upon the plaintiff that the building should bo removed on April 20th, and in pursu ance of that notice on April 23rd the Council and their contractor, Mr R. Powrie entered on the land
and destroyed the building. The defendant Council would bold that it was entitled to do this under clause 323. The notice must be served on the occupant according to that clause, but it was served on the owner. Assuming the notice was served on the occupier, plaintiff was entitled to damages, because be had not been heard by the Council, and the Council, according to well-estab' lished English cases, could not demolish his building without first giv icg plaintiff an opportunity of showing cause why the building should not-be pulled down. He quoted the case Hopkins v. Stnethwick Local Board, in which plaintiff deposited plans, of which the Board did not approve, and he submitted two fresh plans which were not approved. Plaintiff then erected the building, and the Board passed a resolution disapproving of the plans and pulled down the building under the powers given them by the Public Health Act. In this case judgment was given plaintiff for damages. On these grounds alone plaintiff was entitled to damages. The Council bad not given any reason for withholding the plans. On April 1 plaintiff received, notice that the Council could not accept the plans, but gave no reason. Plaintiff and his solicitors had both written to the Council,' asking why the plans were not approved, but had received no reply to either letter, The solicitor's letters from bis firm we're as follows : ♦•Referring to the Council's prosecution of Mr Leete for having committed a breach of the Borough bylaws in adding to a building without having previously obtained a permit, we do not know what further action it is proposed to take, but before anything is done we should like to know whether it i 3 not possible to arrange a settlement which may he satisfactory to all concerned. With the object in view we beg to advise you that Mr Leete has instructed us to appoach the Councils and ascertain whether it is not possible to improve the appearance of the present building so as to conform to what the Council considers it
should be. If so, we should like to know whether the Council would prefer Mr Leete to submit a proposal or whether it will indicate what its requirements are. Personally we think the latter course would be the best. Mr Leete regrets very much that it should have baen necessary for the Council to take action against him and also that his action in the matter has been construed as defiance to the Council. We think a good deal of the trouble is attributable to the fact that the Council considers it has power to refuse a permit if it does not approve of the design of a building which complies with the by lawa of the Council as to building etc. We would therefore humbly suggest that a legal opinion should be taken to ascertain what tbo Council's powere in this repecfc are." The plaintiff had offered to improve the appearance of the building.
Notice was given to plaintiff to remove the building, and it was pulled down on April 23, co that the Council had not waited three days. The defendant Council would have to prove it . had the right to pull down the building because plain tiff bad not deposited his plans He submitted the by law was not a reason able one, as it did not allow plaintiff to be heard before the building was pulled down. G. W. Thomaß, town clerk, was called, who gave evidence that the Council passed a resolution on March 25th that section 823 of the by law be enforced. Acting under that resolution and the notice the Oounsil empowered Robert Powrie, contractor, tc pull down the building . The Council paid Powrie 31/6 for pulling down the b'nilding. No other resolution was passed after that resolution. He did not serve a notice on N. Mitchell, the tenant. On April 20th the notice was served on C. W. 'Leete, and on April 23rd the building was pulled down. No reply had been sent to the , letters forwarded by C. W. Leete and his solicitors. To Mr Harper: Ou March 18th the Counoil received a letter from plaintiff that he was submitting plans and specifications, but only a plan was submitted. After the Works Commit' tee bad reported unfavourably upon the plan he wrote to plaintiff on April 27th giving him formal notice that
r,he plans were nyt approved by the Council, and also requiring plaintiff to pull down the building in three days. Tbo building was not completed, but haa already been begun before the Council received the plan. On March Ist; proceedings were taken, and plaintiff was fined for not having Pubmitled plans atid specifications. The build-
ng was completed and occupied after ;he notice was received, On Wednes-
day, April Bth, Mr Leefce made a personal explanatioiTabout the plans and specifications. The Council decided to pull down the building. Mr Williams: Why did'nfc the Council proceed under clause 32 in stead of olauae 278 ? Witness: There was no particular reason.
Mr Williams : Was it because plans were not approved ? ,
Witness : No
Mr Williams : The Council did not deal with the plans within four days after receipt.
Leonard Haylock, builder and contractor, of the firm of Messrs Haylock and Newton, gave evidence that his firm was employed to erect the build ing for plaintiff. • The building was completed on April 28, and the cost of erecting same was £33. Plaintiff supplied "the three walls of the build-
To Mr Harper ; Three of the walls were together, and they came from the old post office building. There were no concrete piles under the build ing, but it had a new flooring and roof. Thore was a front shop with ft workroom behind. It immediately abutted on the street close to right of way.
Mr Harper: Were tbe side 3 put up in a good state of preservation?
Witness : Yes ," but one fide on the bottom wanted a new plate.
Charles W. Leete, plaintiff, gave evidence that the timber for the walls of the building was bought from the old post officft for £5. Mitchell rented his residence, and it was arranged that, if witness built the shop, Mitchell would pay 5a a week rental. Mitchell
took possession on the first Saturday in April. Hβ admitted getting the notice from the Council, but got no reply to his letters from the Council. He was never served with any notice, calling upon him to show reas?on3 why the building thould not be pulled down. He had only submitted a plan to the Council; but no specification, and he started the building without a permit from the Council. To Mr Harper: He started the building on March 10th or 11th, and there should have been a meeting of tb6 Council on March 11. It wae the builder's fault that specifications bad not been submitted to . the Council with the plans. Hβ considered it a proper building to put up and suitable to the locality The building was completed all but the painting when pulled down, He was present at the Council meeting on April 8, but he did not ever of his own accord approach the Mayor or Council and ask them to show why the building should not be pulled down, and remonstrated at the Council's action. In the Council he said he would alter the plans, Hβ saw the Town Clerk at 12,15 p.m. on April 23, who informed him the building would be pulled down in the afternoon. He then wrote, protesting against the Council's action and warning the Council of the consequences. He had not at any time been able to ascertain the reason forg the Council pulling down the building beyond the bare assertion that it was contrary to the provisions of the by law, and not a suitable building. • Nimrod Mitchell, sworn, said he was the tenant of Mr Leete's property and had rented the ebop at 5s per week. Hβ said the day the building wasto be pulled down the Town Clerk came to him and told him the building would be pulled down. Witness said very short time bad been given, and asked if the Council could not postpone the pulling down until next day as there was no time to get bis things together. They would not entertain bis request. Some time before that Messrs Thomas, the Mayor and Mr Harris said they were going to pull the building down, and asked him how long it would take him to get things out. Hβ had said half an hour was ample, but be had not much stock in then. The building was'quite suitable for his requirements. To Mr Harper: He was going to use the shop for watch repairs. This closed the case for plaintiff. Mr Harper, in opening the case for the defence said there was a cotfsider-
able difference in the facts quoted by bis friend and the case of the Akaroa Borough Council. The Akaroa bylaw was exactly similar in every particular with the Ohriatchurch by-law, and though it was preferable, perhaps, to have a clause which gave plaintiff an opportunity of showing cause why bis building should not be pulled down, the fact of the Council giving notice of their intention to pull the building in this case suffi cient and quite in keeping with the by law. The Council, if the bylaw had been broken, had a perfect right to act judiciously. The plan bad been submitted to the Council without any . specification, and there were no dimensions or abuttals given, He submitted the onus lay with the person who had not complied with the by law. The question was whether Mr Leete had had an opportunity of showing cause why the building should not be pulled down On March 27 the Council decided not to approve of the plans, and a notice was sent to plaintiff that unless be complied with the by law the.building would be pulled down, This notioe was perfectly in order Plaintiff, disassociating himself as a councillor, had had further opportunity when be coiamitte'd the broach, to go to the Mayor as the responsible person and show reasons why the building should not be removed, iie knew be was under threat of having the building removed, and he submitted he had abundanj.
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opportunity of showing cause why tho building should not be removed. He referred to the oase Attorney General v. Hooper re a dispute over projections in which the onus was put upon the objector, and held that plaintiff should have <?ent notice o his objection, No such notice was given The Council was not bound to give plantiff notice if it gave, him reasonable time in wbioh to object under the by law. Owner and occupier were freely used together, but: he submitted the person who owned the premises was the respon Bible person. Hβ pubrnitted that under clauses 83 and 280, that the Council had the right to take efcepa if plaintiff proceeded with the building after receiving notice that the plans were not approved to remove the building, Otherwise any rubbishing or undesir able building could be put up. But in this case plaintiff had been fined 103 and oosts for not submitting plans and specifications before proceeding with the building. Hβ sub ranted plnintiff was not entitled to damflgfis, because the Council eoviW] not de compelled to approve of- t-'ne plane. If the Council BCterl enprici ously, plaintiff bad a right to ndr-pr procedure by way of a mandamus. He submitted that plaintiff could only bring an action for damages for nomi n»I treppasp. Robert Powrie, sworn, said he was a contractor, and bad pulled flown, the building on a, Thursday for thn Council. The building w»s a terrible p!»CP, and roiebt have made a decent henhouse. Ha-was formally a mem • her of the Bpreydon Mnad Board »nr! Soreydon Boronsh-Council, a'n<? tbeir by laws He did not think *.bis & suitable building to put up with no concrete foundations. To Mr Williams : He bnd tendered for a building that did no* comply with the bylawF.. Mr Williams: Was the building n fi* place to work in? Witness: I would not go into'puob a buiWing. Hβ believed it was n outbuilding of the post officp. J. R. Newton, sworn, said be had been a member.of the Akaroa Borough Oouncil and obuirman of the works committee. He was chairman when Mr Leete's plans were submitted. ' Tber* were no specification!? He saw the building going up btibrp be saw the plan. The committee nn»nimon«>. 1y dipapproved of, the p!r.n. Be did cot think it was the class of building which sbonld have gone up. M> Leetfl bad disapproved of a building nnprißitfi his residence which bad con orpre foundations, and compared more than favourably with Mr Lite's own building. He was present at the meeting when Mr Leete'protested. To Mr Williams: The committee did not approve of tbe plan because in ; tbe first place the bylaw wag not com plipd with and the building was un nniteblfl.
Mr Williams: Why was the build ing unsuitable ? Witness: It was too low, and not a thing of beauty. They had no other reason. He thought fchafc Mr Leete should have submitted something to improve tho building. C 8. Cantrell, medical practitioner, gave evidence that he was on the works committee of the Council. He considered the plan arid saw the bui'ding going up. Hβ'disapproved of the plan beoftiipe is was unsuitable timber, being frrm an old building 50 years old, and i> wa? not suitable for tbe position. Hi-; *"p»1 objection was that it was an to that part of the town, and the plens and epecifi* oafcions i> ere'not submitted. J. J. Walker, carpenter, member of the works committee of the Akaron Borough Council, said his reasons for otyc'ion were that plans and speeifi oations were not .submitted, and b* objected on tbe ground tbat'bs piiu , and building did nod come up to exp«>c*a»iona The Council wanted io improve upon the class of buitdipg. Ik was too email, and there were no specifications, George Armstrong, Mayor of Akaroa, and ex officio membpr of the work" committe, sworn, paid be ob jpcted to the building as the timber wae condproned, and the building the most unsightly'put up in the main etreefc of Akaroft. It would make a ben bouse or pi? sty, but was unsnit able for that part of the town. To Mr Williams : He had not read tbe bylaws right fcbrougb* His reas.cn for objecting was that there were nn concrete foundations. He had caller 1 it condemned timber. Tbe Government did not condemn the timber ol their own buildings, but ifc had been standing fifty years. He produced c piece of timber which came off the building. The old bit of, timbpr was from the floor Joyce, and was filled wHb borer and rotten. That closed the case for tbe de> fence. _ , Tbe magistrate said he preferred to to give his decisisn in writing in Christcburch.
AKAROA BOROUGH BYLAW CASE., Akaroa Mail and Banks Peninsula Advertiser, Volume LXXII, Issue 4409, 3 July 1914
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