APPEAL ALLOWED

Manawatu Times, Volume LIII, Issue 6538, 21 February 1928, Page 8

APPEAL ALLOWED

Important Decision For Local Bodies BUILDING PERMIT DOES NOT OVERRIDE BY-LAWS ; The Hon. Mr. Justice Ostler intimated by telegram yesterday that he allowed both appeals in the ease Kcay v. Forbes which was heard by him at the Palmerston North Supreme. Court 1 on Friday .evening. Appellant (D.S.L. Kcay) is Building Inspector for the Woodvillo Borough Council and in the Magistrate’s Court recently ho proceeded against Charles Forbes (defendant) builder, of Woodvillo, charging him (1) that on November 3, 1927, at Woodville, within the inner area' of the borough, he erected 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 Magis tratc 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 tho plans of the building to bo erected to the Town Clerk, who is also the building inspector. The latter did not inspect them, but asked defendant if they were in accordance with the by-laws, and on being answered in the alfimative, issued the permit. The defondj ant said he had no recollection of such a question being put to him, but if it was, ho would have made such an answer as he believed tho plans were lin accordance with the by-laws. The i 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 tho 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. I 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.” The case resolved itself into tho question: Can a local body . approve of plans and specifications and of ter 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 tho inspector was conclusjive that a proposed building was in I accordance with the by-law. | The Hon. Mr. Justice Ostler, how--1 ever has reversed the Magistrate’s decision in allowing tho appeals. The I eases have been remitted to the latter ito fix penalties. His Honour’s reasons for his decision will be forwarded [in writing later.