Appeal Over Ruling On Flats Permit

Press, Volume CIX, Issue 31989, 16 May 1969, Page 20

Appeal Over Ruling On Flats Permit

(New Zealand Press Association) WELLINGTON, May 15. The Court of Appeal today began hearing an appeal brought by the Mayor, councillors and citizens of the Borough of Ashburton against a decision of the Supreme Court at Christchurch, granting a writ of mandamus.

The Supreme Court, on December 16, held that the council’s refusal to grant a building permit to the respondent, Ogilvie Garth Clifford, was wrong and that the council had failed to consider the respondent’s application. The respondent wanted to convert six rooms of his house into two self-contained flats.

The Court comprised Mr Justice North (president), Mr Justice Turner and Mr Justice McCarthy.

The appellant was represented by Mr J. G. Leggat and the respondent by Mr P. H. T. Alpers. Mr Leggat submitted that the refusal was rightfully made under section 36 of the Town and Country Planning Act, 1953, and that the question was one of fact for the council to decide. Section 36, he said, forbade substantial

reconstruction or alteration to a building, the use of which did not conform to the zoning as laid down by the council in its planning scheme. He further submitted that the meaning of the word “substantial” was unclear, because it was uncertain whether the repairs must be substantial or whether the effect on the building had to be substantial. He submitted that a nonconforming use was intended to be rigidly controlled and that anything which would remain permanently contrary to the planning scheme would lose the protection of section 36. He conceded that a nonconforming building, such as the respondent’s, could be repaired and maintained. Mr Leggat said it was inevitable that any local authority entrusted with the duty of carrying out the act and its own scheme must find that the proposed alteration would be a substantial one. The hearing will resume tomorrow.