"CANNOT REFUSE."

Press, Volume LXIV, Issue 19466, 13 November 1928, Page 5

"CANNOT REFUSE."

PERMIT FOR A SHOP. LANDOWNER V. COUNTY COUNCIL. I The Waimairi County Council is not , empowered to refuse a permit for the s erection of a shop in Fendalton under \ Section 34 of the Town Planning Act, t according to a reserved judgment, de- [• livered by his Honour Mr Justice > Adams in the Supreme Court yesterday i morning. 1 The ease was heard recently, when i William Arthur James proceeded against the Waimairi County Council 3 on an originating summons under the Declaratory Judgments Act, 1908, to i determine certain questions upon the construction of Section 34 of the Town Planning Act, 1926. The plaintiff, being the owner of a parcel of land at the corner of Holmwood road and itossall street, within the Waimairi County, applied to the ueienuant Council Jtor a permit to erect a saop tneieon. ihe Council, intending 10 ace under the powers conierred upoii local authorities oy bection 34 of mo Act, and being satisfied that the , projected building would not conlorm to recognised ana approved principles of town planning, and would interfere with the amenities of the neighbourhood, refused to grant the permit. The questions submitted in the summons were: (1) Whether the County Council was empowered to refuse a permit to James to build a shop on the land upon any of the grounds set out in Section 34; (2) if the answer to question 1 was in the affirmative, did the provision of Section 29 (2) (b), dealing with the character of buildings, James from claiming compensation under the Section for the refusal of the County Council to.issue a building permit for the erection of a shop. The County of Waimairi, ran the judgment, was a rural area exclusive of any town, district, or borough. The defendant Council had not been required,' under Section 25 (1),.t0 prepare and submit a regional scheme, nor had it taken any step towards the preparation of such a scheme for its own district under the power in that behalf conferred by Section 25 (-4). The Council had, however, taken an active part with the Councils of the City, the boroughs of Riccarton, Sumner, New Brighton, and Lyttelton, and the counties of Halswell, Heathcote, and Paparua in the promotion of a scheme under Section 28 for the purpose ot uniting all these local authorities, including the Waimairi County Council, in one combined scheme. This movement had been approved by the Director of Town Planning It appeared also, that, at the request of the _ Director, each of the local authorities interested in the proposed combined scheme, with the exception of the County Councils of Halswell and Heathcote, have passed resolutions to unite for the purpose of preparing that scheme, and s have also pstssed resolutions approving.of a !proposal for an aerial survey of the whole area occupied by the City, boroughs, and counties concerned. All those steps were taken before the plaintiff made his application for the building permit. It was clear, however, on the plain meaning of Section 28 that the activities of these local authorities had so far been preliminary, only to the formation of a combined committee. But until a committee had been duly appointed and approved by the Town Planning Board there was no merger under SubSection '■" (4) and each local authority retained its individuality, powers, and responsibility. There could .be no doubt that unless and until a combined committee was duly constituted the Waimairi County Council might at any time resolve under Section 25 (4) to prepare a regional planning scheme for the whole or any defined portion of the county. Further, such a resolution would not stand in the way of the proposed combined scheme or any other scheme of united action. If a County Council of its own volition proceeded with the preparation of a regional plan under Section 25 (4) it would come within the definition of a "responsible authority" m Section 2, atlhough by Section 25 (4) the preparation of the scheme would be optional. When a Council had duly resolved to prepare a scheme it thereupon became the Council "responsible for the preparation of that schme" (see Section 2). "I see no reason why it should not in such case also come within the words 'County Council or other responsible authority' in Section 29.(2) (c). But no such\ action has been taken in the present case and these questions do not arise.". The answer to the first question depended upon the construction of Section 34 (1), which is as follows: "Where at any time after the commencement of this Act and pending the preparation and approval of a town planning scheme it appears to any local authority that any projected building or other work intended to be erected or undertaken within its district would not conform to recognised principles of town planning, or would interfere with the amenities of the neighbourhood, the local authority may abso- ' lutely or conditionally refuse its con- • sent to the erection of such building, or the carrying out of such work, or s may definitelv orohibit the same." _ i "On first impression I was "inclined \ to the view that the words 'at any \ time after the commencement _ of this ( Act and pending the preparation and j approval of a town planning scheme covered the whole period between the ' day when the Act came into operation and the approval of a scheme. # Counsel ' for the plaintiff contended in effect < that the phrase postulates the concur- • rence of both (1) the. coming into ( operation of the statute, and (2) the commencement of the preparation of a j scheme as conditions precedent to the j exercise of the powers conferred by the J | section, but on consideration I adhere j to my first opinion. The intention is to fix the period during which the powers are to be exercisable, and this is done by enacting that they shall attach on the dav the Act comes into J force and continue until a scheme has been approved. Upon such approval it < becomes the duty of the local authority < to enforce compliance with the scheme { —Sections 23-27—and such powers are < no longer necessary. In the meantime < anv person having an interest in land j injuriously affected by the operation of . Section 34 is entitled to compensation ( under Section 29 except in the cases ( mentioned in Sub-Section (2). Where there is no scheme in course of preparation. or where there is such a scheme, but no notice is given as pro- ' vided by paragraph (c). full compensation is payable." 1 The next question was whether County Councils were within the ambit of Section 34. In order to bring County Councils within the Section, the expression "a town planning scheme" in the

second line must be extended by a construction to a town or regional planning scheme," or "a scheme under this Act." But the effect of Section 3 was to confine "town planning scheme" strictly to schemes in relation to the development of cities or boroughs, and throughout the Act the distinction between town and regional planning was carefully observed. There was nothing in the Act to justify the extension suggested. The context required that it should be limited to such local authorities as were charged with the preparation of town-planning schemes. "I think, therefore, that the action of the defendant Council was ultra vires. "With regard to question. No. 2, I find that the expression 'character of buildings,' which occurs in Section 29 (2) (b) is explained in the regulation made under the Act—N.Z. Gazette 1927, p. 613—which reads thus: 'The character of the buildings (as for example, whether dwelling-house, or shops, or public buildings, or workshops, or factories for ' inoffensive tradeß, or partly one class of building and partly another class.' All claims to compensation under Section 29 are to be determined by a Compensation Court under the provision of the Public Works Act, 1908, and questions of law arising before such Court are, by Section 68 of that Act to be determined by the President or by this Court on a case stated by him if he so thinks fit. I do not think it desirable therefore, to answer the question. The answer to the first question is 'No. Costs £l2 12s and disbursements were granted to the plaintiff. Mr J. H. Upham appeared for the plaintiff and Mr J. D. Hutchison for the defendant Council.