OLD CITY BUILDING.

Dominion, Volume 4, Issue 1138, 27 May 1911, Page 9

OLD CITY BUILDING.

TO BE DEMOLISHED. LEGAL ASPECT OF THE CASE. CTTV COUNCIL WINS. Yesterday in the Magistrate's Court Dr. A. M'Arthur, S.M., delivered judgment in the case in which James Doylo, City Sanitary Inspector, sued Hamilton Gilincr, of Wellington, for failing to comply with a notice to pull down a condemned building known as Warnock aud Adkin's, 205 Lamblon Quay. Dr. I'rcngiey, District Health Officer, had certified that the building was unfit for occupation and dangerous to publio health, and, us a result, defendant had been served with notice,to pull it down, but had not done so.

In giving judgment, the Magistrate said:—"A similar information in respect to the. same building was laid in Uio year 1007, and came before the Court on December 11. No defence was heard, as the matter was settled by the parties. Tho agreement was put in on the following day, December 12, 1507, and is as follows-::— (1.) The following improvements to bo done forthwith to the satisfaction of the City Engineer:— (a) Improve ventilation underneath floors. (1)) Prevent surface drainage from getting in at (ho back of building. (c) Provide ventilators iu tho upper story of building. ((I) Lavatory basin to bo put right, (e) Office !o bo removed or iniproved to the satisfaction oC the engineer. (2.) In the event of the building becoming ruinous or dilapidated, tho City Corporation reserve their, right to proceed undor Sccton 350 of the Mnncipal Corporations Act. (3.) In ease any further condition should arise which, in tho interests of health, should necessitate tho Health Officer requiring, in' the interests of public health, further works on the premises, then the owner shall forthwith txceute such works so far as ho can lawfully do, or procure authority to do, it being left to the Health Department not to require unnecessary works, haying regard to the necessity of pulling down the building and (o all tho circumstances. (i.) The owner to pull down arid remove the building within three years from date. (5.) Leave to apply if works are not carried out within i.lirco months. The agreement is signed by counsel for the owner, and by the City Solicitor.' I have recited tho agreement in full, as, in my opinion, it is of the utmost .importance in llir legal a.'pcet: of tho cafe. I'ho reasonable meaning of this agreement is that certain improvements aro' to be done forthwith; and further improvements if found necessary; that, if the building became ruinous or dilapidated, tho corporation should proceed under Section 350 of "The Municipal Corpora, tions Act"; that the owner should pull down or remove the building within three years; and that, if the works stated were, not carried out within three, nionHisleavo to apply for an order bo granted. The three years' life, extended to the building, expired at end of the year 1910. In February of tho present year application was made to me by the City Solicitor for an order (o pull down (ho building, in other words, asking mo to enforce a specific agreement between two parties. As tho matter had not been left to tho Court, but had been fettled by the parties themselves, I did not. consider that a matter of specific performance was within Hie scope of the jurisdiction of this Court, and thus declined to mako the order basal on that agreement, on the. ground that I had no power to do so. Now proceedings have been taken, and I have heiird tho evidence of ..both parties. At the close of complainant's case, counsel for 'complainant put 'ill Hho agreement w'h'ieh 1 have recited.- Counsel for the defendant objected. I admitted tho agreement, and am satisfied that I was right in so doing. Counsel for tho complainant contended that defendant was estopped, by reason of (he agreement signed by him, from setting up a different set of circumstances from those set up in the agreement." His Worship, after considering tho doctrine of estoppel, remarked that estoppel was not a cause of action, but a rule of evidence to prevent a porson from denying what ho had once said: he is to be put in the same position as if the statement wcro true. Then, after quoting a largo number of authorities, his Worship concluded, "On the legal aspect of the case, I. am of opinion that the complainant must succeed, and the defendant fail. I, therefore, order that tho building be taken down within thirty days. Should my judgment bo upset on appeal, I shall then Iμ prepared to consider tho evidence laid before me." Tho costs of the case were:—Court fees, £1 95.; solicitor's fee, £2 25.; witnesses' expenses to be fixed by the Clerk of the Court. The City Solicitor (Mr. .T. O'Shca), with him Mr. T. Ncave. appeared for tho complainant, and Mr. T. W. Eislop for the defendant.