Supreme Court Suit Against Builder And Council Adjourned Sine Die

Press, Volume C, Issue 29620, 16 September 1961, Page 14

Supreme Court Suit Against Builder And Council Adjourned Sine Die

After the evidence had been heard, Mr Justice Turner in the Supreme Court yesterday adjourned the action brought by Amalgamated Theatres. Ltd., against the company erecting the new Government Life Insurance Office building in Cathedral square and the Christchurch City Council

His Honour said he would inspect the site, and adjourned the case, sine die, for the hearing of counsel's legal submissions.

Amalgamated Theatres. Ltdalleges that the erection of a hoarding and unloading bay outside the site of the Government Life building next to the Crystal Palace Theatre has adversely affected the theatre's patronage. The company is seeking a writ of injunction against the contractor for fhe building, Chas S. Luney, Ltd., restraining it from maintaining its hoarding or continuing its building operations beyond the eastern boundary of the new office site, and also seeks damages of £l3O a week as loss of profits from the date building began on June 14. Amalgamated Theat r e s, Ltd., also seeks an injunction restraining the Christchurch C»ty Council, named as second defendant in the action, from issuing further permits to Chas. S. Luney, Ltd., authorising it to extend the building operations and hoarding beyond the eastern boundary line; or, if an injunction cannot be had against either defendant, judgment for £10,400 general damages for estimated loss of profits over the 18 months during which the hoarding will be in place.

Amalgamated Theatres, Ltd., is represented by Mr P. T. Mahon, with him Mr J. R. Woodward. Mr B. McClelland, with him Mr B. S. McLaughlin, is appearing for Chas. S. Luney, Ltd., and Mr J. G. Leggat for the Christchurch City Council Steel Girders Cross-examined by Mr Leggat when the hearing resumed yesterday, Charles Seymour Luney, managingdirector of Chas. S. Luney, Ltd., said it was necessary for public safety for his firm to retain the present area inside the hoarding.

Steel girders of unusual length and weight would be needed for the ferro-concrete structure. The unloading and loading bay behind the hoarding would also be used for the delivery of 250,000 bricks. If his firm was restricted further in space on the site, the job, due to be completed under contract by March 31, 1964, could take from four to six months longer. All steelwork would be swung in and above the bulge created by the hoarding. Referring to risks to the public, Luney said that a girder fell from a crane on the site of the New Zealand Refrigerating Company building recently. The girder fell from a considerable height into a private right-of-way.

To Mr Mahon, the witness said that the unloading bay would be principally used for steel. The steel could.be a danger to the public. Other materials would not normally constitute a danger to the public. He expected the steelwork to be completed within 12 months. The witness said his firm’s crane on the job was the largest in Christchurch. He did not agree the loading bay was particularly suited to the crane. To his Honour, the witness agreed the bulge bounded by the boarding and constituting the loading bay could be moved 20ft to the south. It could not be moved 30ft south, as this would put the crane out of reach of some of the work required to be done. Council’s Case The case for the council again raised the balance of convenience and orderliness of the city with the rights of those contributing to its development, said Mr Leggat The essential concerns

of the council were building standards, flow ot traffic, safety ot the public in traffic, and the maintenance of essential services.

In locating the boarding, counsel submitted, the council had to be concerned' not simply with the confining of the contractor to a designated area, but also with protecting the public from sporadic and uncontrolled traffic in vehicles and materials in to the highway. The boarding was located on a comparative backwater and did not interfere with the general stream of traffic.

His Honour: Do you say a man in a backwater should have the maximum inconvenience for the convenience of everyone else? Mr Leggat: No, sir, the rights of one have to be balanced against the varying rights ot the many. Counsel submitted it had not been proved that any physical obstruction had been made to the entrance of the Crystal Palace Theatre. His Honour: Can you drop several tons of gravel on an entrance, leaving just enough room for people to get by, and say you have not physically obstructed the entrance?

Mr Leggat: I would submit that it is a matter of degree. If people have to side-step to get by, that is only partial obstruction.

Counsel finally submitted that if it was held there was an obstruction, it was not actionable as being unreasonable in duration and extent.

The plaintiff must be restricted in damages for so much of the proved loss as could be attributed to the illegal, or excessive, portion of the obstruction. Amount of Space George Winston Chapman, a building engineer employed for the City Council, said the only person he had discussions with before the building permit for the boarding was issued was the architect for the building. He had no discussions with Luney or any of his firm or staff. The architect did not ask for any specific amount of space for the loading bay and boarding. He had examined the situation very carefully, Chapman said. It was obvious that there would be many trucks and numerous heavy items to go to the site. He had received no representations from outside the council before deciding on the area to be enclosed by the boarding.

His Honour: The architect just said: “What space will you give me?” without the slightest indication of what he regarded as desirable, or a minimum? Is that right? Chapman: That is correct, sir.

To Mr Mahon, the witness said he had no idea of the space the architect had in mind. After the architect’s approach the witness was left with no idea of the area the architect wanted or where he wanted it.

To further questions by Mr Mahon, the witness said it had not entered his mind that the Crystal Palace Theatre or any other shops in the vicinity would suffer any trading losses, and he had not approached the Crystal Palace Theatre or any of the other shops to ask whether, in their view, they eould be affected by the obstruction.

To his Honour, the witness said there was a fire plug south of the bulge made by the boarding. He had been informed that the fire brigade needed this plug for the particular area. The boarding could be moved 20ft south. Two taxi stands would have to be removed from the traffic island if this was done. Ewart Somers, chief engineer for the City Council, said that trucks would pull into the loading bay from the south-east end of the triangle. It would not be possible to allow the trucks to go in from the Colombo street end of the triangle—the traf-

fic committee would not allow it The witness said he had heard and agreed with the witness Chapman concerning the factors he had taken into account before issuing the permit for the boarding. Use of Footpath Generally speaking, in Christchurch and New Zealand, the practice for the building of more than five storeys was to allow the whole of the footpath (10ft on average) to be taken and allow space for loading facilities outside the boarding. The witness said there was a fireplug outside the Tivoli Theatre and one outside Woodwards, in the Square. The Crystal Palace Theatre and shop next door had no part in a deputation to the council’s traffic committee about a year ago wanting chains put up so that pedestrians would have to walk on the footpath of the triangle containing the theatre and the Government Life building site.

To Mr McClelland, the witness said that the boarding would only be moved south a small distance without interfering w'ith access of articulated trucks to the loading bay. To Mr Mahon, the witness agreed that if Luney did not have a crane as big as the one in use on the job, the crane would have to be taken inside the building site. Ivan Lyall Holmes, a consulting civil engineer, said he was responsible for the engineering design construction for the Government Life building. He did not consider the space allowed for the boarding bay unreasonable or excessive. The boarding was necessary for public safety.. The witness said the building was designed with the knowledge that it was normal practice for the whole of the footpath to be used during construction with the permanent facilities for loading. He understood the council had permitted space for the loading bay to confine loading operations to that area. He said that buildings constructed within the site area overseas were structurally designed with this limit in mind. It would be either costly, or take much longer, to construct the Government Life building entirely within the site.