BY-LAW BROKEN, YET BUILDING PERMITTED

Manawatu Times, Volume LIII, Issue 6536, 18 February 1928, Page 9

BY-LAW BROKEN, YET BUILDING PERMITTED

Woodville Borough Council in Dilemma SUREME COURT ADVICE SOUGHT Can a local body approve of plans and specifications and, after the work has been partly done, have the work pulled down because 11 does not conform with the by-laws? This was the question which the Uon. Mr Jurtloe Ostler was asked to answer in the Supremo Court last evening when the Woodville Borough Inspector (J>. Si. D. Keay) appealed against a decision of Sir S. L. F. Free, S.M„ given In a prosecution brought agaist Charles Forbes, builder, of Woodville ,alleging breaches of the borough building by-laws. The informations alleged, (1- that the defendant Forbes, on November 3. 1927. at Woodville, did, within the inner area of the borough, erect a party wall otherwise than in accordance with the by-laws, and (2) with failing to pull down the wall within a reasonable time after due notice. The defendant pleaded not guilty, and after hearing the case the Magistrate dismissed the information.

The Magistrate, in outlining the circumstances of the case and the reasons for his decision, stated that the facts were not in dispute. On July 23, the defendant took the plans of the building to be erected to the Town Clerk, who is also the building inspector. The latter did not inspect thorn, but asked defendant if they were in accordance with the bylaws, and on being answered in the affimative, issued the permit. The defendant said he had no recollection of such a question being put to him, but If it was, he would have made such an answer as he believed the plans were in accordance with the by-laws. In this, added the Magistrate, he was mistaken., The building contained two small shops with separate entrances ,and though there was some evidence that .in other places a fireproof partition was . not. required, by-law 115 required such shops to be divided by a party wall of material mentioned'in-the schedule. The plans and specifications clearly provided for a wooden partition ,and the framework of this was erected prior to the commencement of the proceedings in the Magistrate s Court. For the complainant, it was contended that the permit was given “on condition that it be executed in accordance with the building regulations as stated in the permit. 1 The case resolved itself into the question; Can a local body approve of plans and specifications and after the work has been partly done, have the work pulled down and penalise the builder. The Magistrate thought the question was answered by a previous law decision in which it was decided that the certificate of the inspector was conclusive that a proposed building was in accordance with the by-law.

i Against this decision the "Woodville Borough Inspector appealed and was represented in Court last evening 1 by Mr T. F. Martin (Wellington) and Mr W. A. Lyon (Woodville). Defend--1 ant was represented by Messrs G. Hu and M. M. Smith (Pariatua). Mr Smith submitted that under by- , law 162—the by-law under which the , second information was laid —the council could order the demolition of i any structure which did not comply with the by-law. What would have been the position rad a building been completed at a cost of hundreds of pounds?, he asked. The council i might not have discovered the error for a year, and to order a reconstruc- ' tion might then mean ruination to a man unless he had the protection of his permit. Counsel also emphasised the fact that the Borough Council had power to waive the by-laws and permit the erection of wooden walls and furtherore, by-law 103 said plainly that once a permit was issued, the builder must not deviate from the plans and specifications. There were most elaborate precautions which an inspector could take under the bylaws before issuing a permit. When by-laws were so worded as to put an innocent person into the position that found himself, then the by-laws were unreasonable. Forbes had not asked for his permit in a hurry. He was prepared to wait three weeks if necessary and whether a permit was carefully or carelessly granted, it surely could make no difference to the validity of the certificate The by-laws appeared to counsel something in the nature of a trap into which anyone might fall at any time. Defendant had been quite honest over the matter and counsel said he was surprised at the Woodville Borough Council going on with the case ,seeing that the permit had been issued in such a careless man-

Mr Martin: Ton must not forget that defendant is a member of the Borough Council and the inspector took it for granted that the plans and specifications would be in accordance with the by-laws. •>«.. AVl’"', "<• r

permit at all if the by-laws can override it? Mr Martin: Every permit issued is subject to compliance with the bylaws. That is expressly stated in bylaw 106. - His Honour: Are there by-laws of common form? Mr Martin; Yes, boroughs copy greatly one from the other. As the case is one of Importance to local authorities, 'his Honour decided to give a written decision.