SCOPE OF BY-LAW.

New Zealand Herald, Volume LXVII, Issue 20724, 18 November 1930, Page 12

SCOPE OF BY-LAW.

BUILDING PERMIT REFUSED. COUNTY COUNCIL SUED. WRIT OF MANDAMUS SOUGHT. The refusal of the Maiuikau County Council last September to grant permission for the erection of a residential building in May Road, Mangere, led to Supremo Court proceedings being taken before Mr. Justice Smith yesterday. William Brady, of Mangere, builder and contractor (Mr. Meredith), proceeded against tlie county council (Mr. l'rendergast), asking .1 writ of mandamus commanding it to issue a permit for the erection of a dwelling-house in May Road. '1 ho application had been refused 011 tho ground that the proposed buildings did not coinply with the council's building by-laws. Mr. Meredith said tho point at issue was tho narrow one of the interpretation of a certain section of tho by-laws. Bylaw 123 provided that 110 person should erect a new dwelling-house upon a site of less than one-fifth of an acre and unless the site had a frontage of at least 50ft. In this case there was sufficient area and frontage and air space for one. building, but the permit had been refused on the ground that the proposed building comprised two new dwelling houses and that the frontage and area were not sufficient for two. Tho claimant suggested that this was one building, comprising two flats, and was not two dwelling-houses either in tho ordinary acceptation of the term or in accordance with tho definitions set out in the by-laws. Legal cases did not help here becauso their interpretations were all in respect of tho particular circumstances of each case. Tho by-laws themselves were tho only guide to their interpretation. The object of the by-laws was to prevent congestion of buildings, and they were framed to deal with buildings as structures only and not with regard to their internal uses, said Mr. Meredith. Plaintiff contended tho complete building was a dwelling-house in accordance with by-law 123. If that were not tho construction, then flats could not be built in the Manukau County. A building of five flats, for instance, would require an acre of ground and 250 ft. of frontage. Mr. l'rendergast argued that in the bylaws there was a very big difference between a dwelling-house and a building and ho quoted numerous authorities to showthat tho proposed building must be regarded as two houses. The ordinary meaning of the word " house" or " dwell-ing-house" should certainly be applied to each portion of this particular building, which was divided into two parts, with no means of communication between them. His Honor reserved his decision.