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AKAROA BOROUGH BY-LAW CASE

MR LEBTE iWABQED £25 AND COSTS MR jIIrOHELt £4 DAMAGES.

Judgment !n the by-law case was givfn by the Magistrate, T. A.. B Bailey Esq , , S.M, on Tuesday at Christohuroh. The following Jgttie wording of judgment t-'-Mr J. fl. Williams fof' plaintiff, Mr G. 'Harper and Mr G* Harris for defendant. Thie is a claim for £40, made up as follows :—Destruction of Building £3(J and loss ol tenUti* :■-■■" -')■". ■■% . , The facts are that some time about 10th or lllfr Marob; the plaintiff started theleree tlon u6l a small shop on his property in the yas£ street of Akaroa He did not, before eating the work, submit plans and speoifi6'iiion* to the Borough, as he is required to So' under the By-laws. Ou the 17th. March be wrote to the Counoil that he proposed erecting the building, and that plane and specifications would be submitted by the contreMrtbr. ' Oo the 18tb plane but no speoi ficatidris' were submitted On the 25th the Gonneil met, and the plans were not api proved, and at jbat meeting the following reeointion was passed:—"That section 323 bi tlie Bylaws, giving three days notice to pafl down and remove bpildings erected con tr«ry to ByilaWj be enforoed against Mr C. W. Leete in respect of the building by him on Beach road." Meanwhile apparently flying on the plane being approved, the plaintiff, had gone on with tbe building, which was completed. On the 27th Maroh a letter was sent by the Town Clerk to the plaintiff intimating that the Council could not approve ofjthe plan, and enolosing a notioe addressed to plaintiff in the follow , ing terms {omitting formal part):—-"You are hereby required to pull down and remove the baildins now in thef course of erection by you on Beach road within three days of service of thia notioe. And, failing your so doing, I am directed to give you notice that She Coun Oil will poll down and remove such building a- d proofed to reoover the ccsfcs of so doing J om you pursuant to section. 323 of the , Borough Bylaw No, 2." On Ist April the plaintiff wrote to the Council aeking the OouQoil to state their reason for'wiihholdiog their approval of his planß. On 7th Aprii ' Messrs Meares & Williams, eolioitors for the plaintiff, wrote the Counoil asking whether the Council proposed taking any further action, and submitting certain proposals with a view, if possible, of coming to some satisfactory settlement of tbe difficulty between their client and the Council. Both these letters werejpead at the Council meeting held on ? the Bth"April, and were "received." Nβ answer was sent to "either, On the 20th April another notioe was prepared and signed by the Mayor andjjeTved on the plaintiff. Tha notice admitting formal parts was ac follows;—

"Whereas the undermentioned building has been erected in contradiction of By-law No 32and 33 of Bydaw No. 2 of the Borough of Akaroa. Now tbe Council of the said Borough, in pursuance of the powers given to it by Bylaw No, 323 of the said Bylaw and by section 350 of "The Municipal Corporations Act, 1908," hereby gives you notice that the said Council requires you as the owner of the said building to pull down and remove the same within three days from the service upon you of this notice, and, further, take notice that unless such building shall be taken down within ; the time aforesaid oi the work of taking down the same-shall be commenced within the said time and proceeded with with all reasonable expedition then suoh proceedings will be had and taken . as are mentioued and referred to in the said

jSHjtinh and-in the said bylaw. A building or sh'jjt in putt uf seotion tfi, Beacn Had. /•!;•> *oa. ■. ■'. ■ "• "m

I'atert th.* -20,b d»v nf April, 1914 1 : ," ;: • ;(Sij?ne'd)"G. Armstrong,.MKyoi*. Signed by the Mayor (Gemga Arhistr ng), in''tb> c of H. G. Youngman, pjscniastev, Ak&roa." No noticj was eerveil on iha nc ml oo upier of th<* building, Mr Mlcholl. 'I'h'i ulaimiff claims that the defendant com if ted a trespass on the following ground*:— (1) They did not give the plaint ff any opportunity o£ being heard in defence (f their ord<-r to pull down his building. (2) That the defendant bad no power to pull down his building (3) If they bad the power to pull it down they exercised the power before the time for I doing 60 actually arrived. An to notice given, the first notice 27 March was (ft peremptory notioe to pull down a building in the course of erection. No fens-on whatever wae given for rrquiring the re , tnoval. lam nf cpinion that if a notice to remove a building is given by a local body the person to whcm it is addressed is at least entitled to know the reason whioh prompt the local body to demand the demolition of his building. It seems to ma a person would tie justified in ignoring snob, a notice. The plaintiff:), howe?er, did not ignore ths no-.ica. Ho wrote almost immedia'ely <o the defendant Council to. aacrtai > on what grounds thpy objscted'o the building and d<iys latf>r. km the plaintiff hatl been prosecuted inn fi-ted for erecting a building without h-tvinj?' first'deposited plans and specifications the plaintiff solicitors wrote to the Council suggesting either that the pla'ntiff be allowed, to submit some alteration in the design or the counoil should indicate what its re., quirment-i wore. The' deiondent Council r csived these letters and sent no rep'y. They however sent a further and more explicit notice in which they demanded the re moval of the building on the cround that tlw plaintiff had not oomplinii with section 32 and 33 of tbe Bylaw, giving tbo notice under Section 323 of the Bylaw Section 32 of the Byjaw requires that a person about to erect or alter a bui'ding shall submit plans md specifications to the Council. S'ec'ion •33 of the Bylaw -makes it an < flVnoe fnr any person to proceed with a bui ding if plans are not approved. Section 223. under, which the defendant Council chimed its light to pull down the building, provides that no per son «;hall eirct any building or put uo any struc.ure or do any work which us to dtsign, material*, or.workroanship is or are contrary to the provisions of the Bylaws, and gives the Counoil pcjwer to give notice to the p6r son in possession of the premises to piill down or remove the building witbin three days, and failing hii do ng t>o to enter on the premises and' pull do.wn the building., The only grounds on whioh the Council can exerciße its power an* that Ihe building "ns to design, material and wormanehip" is contray to the Bylaws. Ths Council in their first n'tioo gave no reason for demind-ng the demolition of the building, and in their second notice give as a reason that plaintiff has failed to comply with by law 32 - that is to deposit-plens and specifications The Counoil has dearly no powers under the bylaws to demand Ihe removal of a building solely on the grounds that plans had not been submitted for tbe approval of the Council fourteen days before the erection of the. building had oommeueed. I( such n power existed the Counoil might order the demolition of a building on tbe most approved modern .lines at great expense, simply on tbe ground that someone bad blundoied and not submitted the plans fourteen days before the work had been started. The action of the Counoil also suggests that noncompliance with the bylaw is tho only ground on which the building is to ba pulled down, for when the plaintiff and his solicitor ashed for some explanation of .the Council's attitude, and seemed to be honestly prepared to meet the Council's requirements if made known to them their letters are "received," and the Council would not. hear an explanation from the plaintiff, but expressed itself to the effect that the bylaw had not been complied with, and therefore the building must come down —no other reason for pulling down the building being suggested. As to the notices given I consider the first was invalid, and was. superseded by tbe second. Aβ to the sec- nd, I think, but with some hesitation, that the authorities show that had the Council exercised its power properly their action might have been sustained, though, personally, I consider tbe bylaw to be very drastic, and the limit of. three days too short considering the fact that tbe borough is somewhat isolated, end a person served with a notice "would hardly have time to ascertain hie legal position. Aβ to the last point raised by tbe plaintiff, I am of opinion that the Council eptered on the premises and demolished the building before time for their doing so had arrived. They gave the piaintiff three days' notice, and before the third day had expired they sent a man to pull down the building, and it was pulled down at once. On the whole it seems to me that defendants acted in a very arbitrary and high-banded manner. It is true the i plaintiff was lax in not sending in his plans on the 10th or 11th March, but that is explained by the fact that there was to be no meeting of the Council on the 11th March, owing to its having been adjourned, of which adjournment the plaintiff, being a member, was aware, and the plaintiff, thinking he would get «. permit, went on with tho werk. When, however, the plftns were not approved the plaintiff could get no 'satisfaction from the defendants as to why the plans were not approved of, or whether any alteration could be made in them wbioh would lead to them being approved, The defendants are therefore liable for trespass, but the trespass of the defendant Powrie was purely nominal, as he was a paid servant of the Council. Judgment will be for the plaint ff against the Counoil fpr £25, and costs, and against the defendant Powrie for 59, and 3s costs for ext a summons.

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Permanent link to this item

https://paperspast.natlib.govt.nz/newspapers/AMBPA19140807.2.14

Bibliographic details

AKAROA BOROUGH BY-LAW CASE, Akaroa Mail and Banks Peninsula Advertiser, Volume LXXIII, Issue 4419, 7 August 1914

Word Count
1,694

AKAROA BOROUGH BY-LAW CASE Akaroa Mail and Banks Peninsula Advertiser, Volume LXXIII, Issue 4419, 7 August 1914

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