SUPREME COURT Assurance on Arlington Motor Inn accepted

Press, Volume CXII, Issue 32838, 11 February 1972, Page 11

SUPREME COURT Assurance on Arlington Motor Inn accepted

The intention of Arlington Motor Inn, Ltd, to erect a building on a site in Park Terrace and Peterborough Street was unlawful in so far as it infringed the densitycontrol provisions of the reviewed district scheme, Mr Justice Wilson said in the Supreme Court yesterday. But because the stage in the construction where a breach had been committed had not yet been reached, and because an assurance had been given that no breach would be committed, he felt justified in declining to grant an injunction at this stage. Five persons living near the site applied for an injunction to stop the construction of the motor inn and for a writ of mandamus against the Christchurch City Council requiring it to hear an application by Arlington Motor Inn, Ltd, for a building permit under the provisions of the Town and Country Planning Act, 1953. The plaintiffs, John Neil Hamilton, Dulcie May Harris, Dorothy Anstruther Hennessy, Bernard Kingston Tosswill, and Maude Brent Weston, were represented by Messrs A. Hearn and I. J. D. Hall. The first defendant, the Christchurch City Council, was represented by Messrs J. G. Leggat and D. M. Palmer, and the second defendant, Arlington Motor Inn, Ltd, by Messrs K. A. Gough and D. J. Clark. His Honour declined to issue a writ of mandamus against the Christchurch City Council because, he said, a hearing before the council’s town-planning committee in December, 1971, had

effectively given the plaintiffs the relief they sought.

His Honour refused to allow the council costs against the plaintiffs, on the ground that there was an error by its servants as to the density provisions. Costs of $5OO and witnesses’ expenses were awarded to the plaintiffs against Arlington Motor Inn, Ltd.

’ The hearing lasted four 'days. By the time of the hearing the "plaintiffs’ complaints had been reduced to two, said his Honour, giving his decision. The first was that the defendant company, when applying for the building permit for the inn, did not disclose the true purpose for which the building was to be used. The original application referred to accommodation, and the engineer’s department of the council said that the term was not precise. The application was then ’ amended to read, “private hotel.” The plaintiffs said the company intended to use the building for licensed premises. His Honour said he acicepted the evidence of James Eric Rothera, a company director, that the company contemplated that some form of licence might be applied for, but no decision was made as to when this would be done or what type of licence would be applied for. It was true that the plan provided for bar and liquor storage facilities, but he accepted Mr Rotherst’s explanation that if a licence was granted it would be expensive to alter the building to provide these facilities after

it; was completed. He accepted that when the application for the permit was lodged it was intended to use the building as a private hotel. The plaintiffs had not [made good that complaint. Number of guests

■ The plaintiff’s second complaint was that the building ias designed and for which a ‘permit was granted offended the density requirements of the reviewed district scheme ■of the Christchurch City iand that no more than 75 perisons could be accommodated, half the number proposed by the company. It was apparent, his Honour said, that the building did not comply with the density requirements and the fact that a permit had been granted did not make it lawful to construct such a building. His Honour said that an undertaking had been given by Mr Gough that construction of the building would not proceed in contravention of the Court’s ruling as to the density provisions unless and until and only to the extent that they are dispensed with by the Appeal Board or by effective amendment of those provisions. The board was to sit in three weeks. “In view of the undertaking* given by Mr Gough on behalf of the second defendant, whcih I accept, I do not intend at this moment to grant any injunction against the second defendant. The proceedings against the second defendant will, therefore, be adjourned sine die. They may be brought on at any time on three days notice,” said his Honour. “No breach so far”

His Honour said he took the view that an infringement occurred when something was done which brought about a breach of the reviewed scheme and that not until that stage was reached in the construction was there a breach.

“My view is that up till I now, although I have found I that what the second defendant intended to do, was a breach of the review scheme, no breach so far has been committed, and it is because I have been assured that no breach will be committed that I feel justified in declining at this stage to grant an injunction against the second defendant.”