BUILDING ALLOTMENTS.

Auckland Star, Volume XLI, Issue 246, 17 October 1910, Page 2

BUILDING ALLOTMENTS.

QTJABTER ACRE IN SUBURBS.

VALIDITY Otf BY-LAW TESTED.

Legal argument was heard by Mr. Justice Sim at the Auckland Supreme Court this morning in an action involving the validity of a building by-law in operation in the Ht. Roakill lioad Board district, on the ground that the restrictions imposed constituted a grave interference with, tile rights -of property-owneis. The matter was brought by the Islington Estate Company, I<td_, by way of a summons

for a declaratory order against the Mount KoskiH Koad Board to determine the validity or otherwise of the defendants' building by-law, which declares.: "That no person ehall erect a. new house upon a site of less than a-quarter acre, nor unless such site ehall have a frontage of at least 50ft to a road." Dr. Bamford appeared for plaintiffs., and Mr. Baxter for defendants. Dr. Bamford admitted that the defendant Board had power to make by-laws under section 14 of "The Public Health Amendment Act" of 1903 to prevent overcrowding by buildings, and the question was whether the by-law in dispute could reasonably be supported under the section quoted. He contended that the by-Jaw ■was unreasonable, and, therefore, bad in law. ' It restricted the right of subdivision, and prevented the owner of less than a-quarter acre to erect a dwellinghouse of any sort. Even if n quarteracre w.as short 'by one yaid, the owner would come under the prohibition of the by-law, not being able to put up even two rooms. If an owner had slightly, less than an acres—'for instance, three-eighthe of an acre—which might be too large for one house, it could not be divided and two houses erected on it Such an interference with the rights of property-owners required the clearest statutory authority giving unmistakable power. Dr. Bamf ord argued that by-laws directed against a specific evil must be equal and must be reasonable. The Board had approached the matter from the wrong end. Any byJsw framed under the section of the "Pubno Health Act" quoted must start with the assumption that the property-owner had the right to build and then proceed to regulate the kind of building to be erected, or regulate the area according to the claes of building; but he contended that a by-law absolutely prohibiting the erection of Q building on a certain area was ultra vires. With a site of less area thun a-quarter acre a by-law could properly make provision for drainage and air space, but it had to be assumed that the owner had the right to erect something on the section. The area could not bo reasonably limited. As showing the inequalities of the by-law and its unreasonableness, Dr. Bamford pointed out that by specifying a 50ft frontage to a road an owner could not build if he had, say, a. 20ft wide avenue leading for some distance to a section several acres in extent at the back, not facing a road. A by-law eerald be framed only to prevent ! over-crowding, and not to prevent tha building of houses. There had to be a conservation of the right of propertyowners to put &'building reasonably upon his section so long as he was not endangering public health. Under the statute, the Board had no power to fix a. mTTvfmTiTn frontage to a public street, as it unreasonably restricted the subdivision of feuid. Counsel said if TTw Honor decided that the Board had power to fix a minimum area, he would rely on the affidavit of Dr. Guinness declaring that a. quarter-acre was unreasonably large. His Honor: If ihe local tody -has power the affidavits of medical men would ibe a matter for the members of the local body. Dr. Banrford: Such a grave interference of the rights of property-owners could only "be justified fey the local body showing that the interests of the puiblic were likely to suffer. His Honor: If it as a matter <of the conflicting views of medical men then the question can 'be left to the discretion of fhe local authority. Dr. Bamford: But the local foody must act in a reasonable way. The object of this by-law seems to ibe -to preserve the district as a t-mita/ble residential area, ■but 'however praiseworthy that may ibe. special legislation was necessary to carry it into effect. In the course of further argument, Dr. Bamford stated Chat the by-hew required a section to ibe at least 50 x 218 ft. ibefore a fotrildhig could <be erected. Bat the tby-law did not accomplish -what it was intended to do. There was nothing in the iy-law to prevent a man, after he erected a house on a quarter acre, to sell the house with a lesa area than a. quarter acre, and if he Jiad other land, adjoining, to go on in the same way. A by-law to be sound had to do what It was framed to do.

Mr Baxter pointed out the procedure to 'be followed before (by-laws !bccame operative in a district, stating that the proposed by-laws had not only to foe puiiished, ibtrthad to receive the approval of the district health, officer, who was a specialist in matters pertaining to puhfic' health, and to rwhose opinion some importance had to 'be attached. In consider-' ing the .reasonableness or otherwise of the iby-law in question, it could ibe - separated so-e3 to take first the qoarteracre area and then the fifty feet frontage. He argnfid, however, that the -whole by-hvw was quite reasonable. Unless some restriction iras made as to ■tie frontage of sections, it wonld be -possible in such districts to get long, narrow strips of land, on which small cottages ■would ibe feuilt dose together, each 'house emptying its slop -water in its <back yard and endangering- the fraiblic health. The by-loiw prevented such a thing happening, and certainly prevented over-crowd-ing by beeping houses a certain distance a-way from each other. [A. qaarter-ecre ■was not too large, considering the special circumstances of the district ibeing without drainage, and the modern, conveniences of a. city, and -when the circumstances altered the iby-la-w cotdd be repealed and made more suitable for the changed conditions. Mr Baxter contended that the restriction imposed by the by-law inflicted no hardships at all, because if the land -was owned, prior to the adoption of the by-law, the section had only to foe sub-divided, and if acquired subsequently, thepurehaser should have full knowledge of what the district 'by-la-ws required. tEBs Honor intimated that ho would consider ids decision.