UNUSUAL CLAIM.

New Zealand Herald, Volume LXVIII, Issue 20888, 2 June 1931, Page 12

UNUSUAL CLAIM.

NEWMARKET COUNcil- SUED

DELAYED BUILDING PERMIT. OWNER SEEKS COMPENSATION. Owing to a variation last year in its plans for town improvement the Newmarket Borough Council was yesterday faced with a claim for £B3O compensation from one of its ratepayers, Tom Umfrey Wells. The Compensation Court was presided over by Mr. Justice Smith, .Mr. 11. K. Vailc as assessor for the council and Mr. Charles lillodes, assessor for the plaintiff. The claim was the first olio hoard by a Court under the amended seel ion 54 of the Town Planning Act, 1926.

Plaintiff is the owner of a section of land with a frontage of 30ft. to Broadway, Newmarket, and of 99ft. to Station Street, Newmarket., In November, 1929, lie applied to the council for a permit to erect a modern two-storeyed brick and concrete buildiug on the site for shops and offices.

]n December the council refused to grant tlie permit on the ground that Ihe building would contravene a town planning scheme it had prepared. In October, 1930, the council decided to grant the permit, and the plaintiff claimed that his property had been injuriously affected to the extent of £B3O. In addition to loss of rent plaintiff claimed for £IOO of rates that would have boon payable by lessees and £3l 10s legal expenses. Mr. Stanton appeared for plaintiff and Mr. Beckcrleg for respondent council. Case for the Plaintiff. Mr. Stanton stated that in 1929 the council had prepared a town planning scheme under which Station Street was to be widened for the whole of its length to the full width. This would have involved taking practically the whole of claimant's property. Mr. Wells had leased the old buildings on his property with the provision that when the lease expired, on March 29, 1930, he would erect new buildings.

The lessees were anxious that (lie new buildings should be proceeded with and Mr. Wells prepared to make a start with them early in 1930. In Docember, 1929, however, the council decided to refuse to grant him a building permit on the ground that any such building would be in contravention of the town planning scheme completed by the council and in the hands of the Town Planning Board. Plaintiff appealed to the Town Planning Board against the action of the council, but the board in February, 1930, decided to support the action of the council. Prior to taking over the land the council had to go to the ratepayers for a loan, but the voting was equal, and the proposal was not carried. At a second poll taken in October, 1930, the proposal was decisively defeated and the council then informed Mr. Wells that he could have his permit granted. Fortunately plaintiff had been able to arrange with his principal tenants to wait the outcome of the council's proceedings, but he had nevertheless suffered grave loss. Evidence Regarding the Property.

Mr. Stanton's application for leave to amend the original claim by the addition of £IOO for rates was opposed by Mr. Beckerleg and the Court reserved the matter for consideration and argument.

Evidence was given by plaintiff ns (o the losses of rent lie had sustained through the delay and uncertainty caused by the council's procedure. Plaintiff's property was' described by John If. Jackson, land agent and valuer, as "probably the best, position in Newmarket." He estimated the letting value of the top floor of plaintiff's new building at £8 a week and said that rental values had fallen about 20 per cent., as compared with 12 months ago. The architect for plaintiff's new building, L. V. Moses, said the total cost to plitintiff apart from certain variations would lie £6558. The work, which would be .completed in a week's time, was started on November 20, 1930. The occupants of the ground lloor had*not yet obtained full possession and would not be regarded as rent-producing. Adjournment o! the Hearing.

Mr. Beckerlcg said he did not propose to call any evidence, as ho was content to accept the evidence of plaintiff's witnesses, which ho claimed showed no loss to plaintiff. "I would like to hear proper argument on the legal question," observed His Honor

"Plaintiff has been injuriously affected and ho has suffered a serious restriction," submitted Mr. Stanton. "The question is what loss has he ns an owner suffered by the enforced delay in building?" Mr. Becker'.eg contended that plaintiff had no claim for a right which was actionable per se, but an action for compensation for loss. Any claim for depreciation or loss in selling value must fail because the property had recovered its value with the grant of the permit, and, secondly, because alternatively the <jlaim would come within the limits of claims prohibited by the meaning of the Public Works Act. On the evidence there had been no loss, while so far as the council was concerned it had done nothing which had not been thrust on it by the provisions of tho Town-Planning Act.

Having retired to consider the position, the Court decided that it could not arrive at any decision in this matter until the basis on .which compensation should be decided was settled. His Honor said iL would be more satisfactory if the questions involved could bo decided by the Full Court, which was to meet in Wellington in three weeks' time, and asked counsel to meet him in chambers to see if argument could bo prepared and a case for submission stated.

Hearing of the claim was then adjourned until June 29.