APPEAL SUCCEEDS

Evening Post, Volume CVI, Issue 82, 16 October 1928, Page 11

APPEAL SUCCEEDS

PETONE BYLAWS SUBDIVISION- CASE A case of interest to owners o£ laud was heard in the Magistrate's Court yesterday afternoon, when Robert John Walsh, of Petone, builder, appealed against the decision of the Petone Borough Council in refusing to consent to the subdivision of two sections in William street, Petone, into three allotments. Mr. W. G. Riddeli was on the Bench, with two assessors (Mr. H. Sladden for the Petone Borough Council and Mr. T. Dyett for the appellant). Mr. W. E. Leicester appealed for Mr. Walsh, and" Mr. R. E. Harding for the Petpno. Borough Council. In opening the case for the appellant, Mr.vW. E. Leicester said the appeal was made under section 335 of the Municipal Corporations Act, 1920, to a board approved by the Governor-General. Mr. Walsh was the equitable owner of the two sections in the Wilford Settlement Block, and on 13th July, 1928, applied to the council for permission to subdivide them into three allotments, which would have frontages of 45ft llin to William street by a depth of 101 ft Bin along Bracken street. The council refused its consent without assigning any reasons. Counsel contended that the proposed subdivision did not contravene the borough bylaws, and was an inconsistent exercise of discretion in that it had granted similar subdivisions shortly before And approved one on the opposite corner.? Mr. Leicester submitted that the council had not considered the application on its merits, not treating applicants alike, that there was no sound reason for the refusal of the subdivision, which was not contrary to the council's own schemes, and that the council being a body having judicial powers should act judicially and not by caprice. , Mr. Harding submitted that no case had been made out by the appellant, the onus being on him to satisfy the Court that the subdivision was unreasonably refused. Mr. Walsh had applied at the turn of the tide, when the policy of the council was being changed and no further subdivisions of this character were being allowed. None had been granted since. Tho discretion exercised by the council was not open to question so long as it was part of its policy to refuse similar subdivisions, and this particular subdivision was deemed undesirable. For the Petone Borough Council Mr. R. B. Hammond, the former Director of 1 own-planning, gave evidence that he did not approve of the re-subdivision of original subdivisions, and that subdivision into allotments of less than one-eighth acre should not be allowed, in his opinion. After a short retirement the Court gave judgment allowing the appeal. Mr. Riddeli stated that the board considered that the appeal should succeed because the subdivision as proposed was in conformity with the borough bylaws, and the remedy was for tho council to change the bylaws to cover cases where it believed subdivisions to be too small.