CONDEMNED BUILDING

New Zealand Times, Volume XXXIII, Issue 7871, 5 August 1911, Page 7

CONDEMNED BUILDING

A PECULIAR PROCEDURE. BAD ORDER BY THE MAGISTRATE. FROM WHICH THERE IS NO APPEAL. Tim appeal of Hamilton Gilmer against the order of Dr McArthur, SAL. that his (appellant's) premises in Lnmbton quay, in which Messrs Warnock and Adlan hud previously carried on bnsin ess as (1 raj km's, should he demolished was heard in the Supreme Court yesterday morning before Iho Chief Justice ‘Sir Robert Stout) and Justices Edwards and Chapman. Mr T. W. Ilislop appeared for the appellant, and Mr J. O'Shea for the City Corporation. A PREVIOUS AGREEMENT. The building in question was condemned by the District Health Officer, Dr Erengley, and notice to pull down Vho building was given under section 291 if the Municipal Corporations -Act. iho Vnilding was not pulled down, and .application was made by James Doyle, thief inspector for the City Corporation, » the stipendiary Magistrate for an irder calling upon tho owner of tho pionises to demolish them. A similar inloimation in respect to tho eamo bnilding was laid in 1307, and it came before the court on December 11th of that year.

On that occasion no defence was heard, as tho matter was settled by tho parties in tonus of a written agreement pat in

on tho following day. This agreement was of some importance in the proceedings, as it was upon it that the Stipendiary based his decision. It provided for certain improvements and repair’s being effected forthwith, and it contained

also tho following clauses In the event of the building becoming ruinous or dilapidiitcd, the GUy Corporation reserve their right to proceed under section 350 of the Municipal Corporations -Act. Tho owner to pull down and remove tho building within three years from date.

The three years’ life of the building expired at tho end of 1310. and in February of this year tho city solicitor mado application for an order to pull down tho building; in other words ho asked the magistrate to enforce a specific agreement between tho two parties. This bis Worship declined to do, on the ground that he had no power to enforce specific performance. New proceedings were taken and evidence and argument wore heard. It was argued that defendant was estopped by reason of the agreement from sotting up a different sot of circumstances from those set out in the agreement- This contention tho magistrate sustained, ordering that tho building should bo pulled down within thirty days. IXo added: ’‘Should my judgment bo upsot on appeal, I shall then he prepared to consider tho evidence laid before me.” It was against this judgment that appeal was made, on the ground that it was erroneous in law, A MOST' SERIOUS MATTER.

"When tho hearing commenced yesterday Mr O'Shea ,raised tho preliminary objection, that there was no appeal from tho magistrate’s order, because tho Municipal Corporations Act did not provide tor a right of appeal. Tho Chief Justice: Is thero any provision in tho Act, Atr O’Shea, to allow 'Air Doyle to make tho complaint? Mr O’Shea: No, your Honor. Ho did jt under instructions from the council. Mr Jnstico Edwards: But this is not .a matter like mending a water tap. Mr O’Shea: 1 don’t think Mr Doylo mends any water tapsDiscussion between the Chief Justice end Mr O’Shea on the powers delegated to responsible officers of tho council was proceeding when Mr Justice Edwards remarked that tho matter of pulling down a building was a most serious one, and any application pertaining to it should be made by tho council under seal. Nobody would dream, ho said, of giving such authority to a corporation officer. The basis of the city’s right to insist on tho building being pulled down tlepend»d on its condition now, and apparently the magistrate did not consider evidence as to the state of tho building. Mr Justice Chapman concurred in this opinion, saying that the magistrate was yight in receiving tho document as evidence. But it was only evidence, Mr O’Shea: It is a contract capable of being specifically enforced. Mr Justice Chapman: Then the proceedings must be by a suit for specific performance, and not by this process. However, as tho Chief Jnstico remarked, this pertained to a side issue not before the court. Mr Hislop was allowed to proceed with his argument in reply to Mr O’Shea’s objection, but without calling upon Mr O’Shea again, their Honors delivered oral judgment.

THE COURT’S JUDGMENT. NO PACT? POUND. The Chief Justice said that ho was satisfied that no appeal lay, as the magistrate’s order was under a special provision in a special statute. The pro-,-ceeding was based on sections 291 and E 93 of the Municipal' Corporations Act, And section 292 provided that certain powers that were set forth under the 12th schedule might bo exercised by the ■municipal corporation. The 12th echedule provided also how these powers ’wore to bo exercised. The council must give notice to the owner of the building to pull it down within the time specified in the notice. This notice could be signed by the town clerk, or by two councillors. The next stop was to make application to two justices, or to a magistrate, as in this case. The proceedings in the present case seemed to have been a complaint taken by E. Arnold, J-P-, as if it was an ordinary complaint under the Justices of the Peace Act. His .’Honor suggested that the safest and most proper course to pursue would bo to apply under seal to the magistrate by whom the case would ultimately bo decided. However that might be, the council was clearly wrong to apply in 4be form it had, and to take the application baforo Mr Arnold, JJ>. Supposing the application for an order had been properly made to the magistrate nuder seal, and the magistrate had proceeded to hear tho case, what would have happened? Ho must find tho fact, and Dr McArthur had not found the .fact in his judgment. Ho had decided tho case on the agreement, finding that tho agreement estopped tho defendant from defending tho action. If ho had the document as evidence, along with other evidence that the house was insanitary, and then based his order on that evidence, his finding could not have been disturbed by any court. These things wore not before the court, however. There was. in his Honor's opinion, no provision in our Act for an appeal from an order made by a magistrate. Tho appeal must therefore fail. proper basis op an order.

Justice Edwards agreed that no appeal lay. Tit appears to. me to be beyond question,” he said, "that there was no proceeding in proper form before the magistrate. The application must bo made either under the common seal of the council, or by some officer authorised by statute to act in tills particular matter. It may or may not be that section

502 of tho Municipal Corporations Act applies; but no prudent person would have any doubt aoout what course to pursue. Tho only proper course in proceedings of this sort was to do everything under tho seal of tho corporation., if there had been a proceeding properly before tho magistrate it is equally clear no appeal can possibly lie. The jurisdiction is a special jurisdiction given to a special tribunal, from which tills court has no authority to consider an appeal. As to tho merits I agree with what hxs Honor has said. At tho same time X think that while wo sit hero wo ato justified in trying to prevent the squandering of public money, and it must ho perfectly plain that it would ho squandering public money to endeavour to support tho present adjudication of the magistrate. Tho basis of an order made under these statutory provisions must be that at the time the order is made Iho building is insanitary, and ought to bo removed under the statute, in pursuance of proceedings properly taken, 'the magistrals has acted on an agreement made throe years ago. He studiously refused to consider tho present condition of tho building, which alone; would have justified tho making of tho order. No doubt he was entitled to receive evidence of what took place bo tween the parties throe years ago. It may cron be that in the absence of evidence that things have changed ho would have been justified in treating that evidence! as conclusive, but ho has not no based his adjudication. If we could have hoard an appeal, which, fortunately, perhaps, wo cannot, it is pliiin that his order could not stand. In the interests of tho public it is sincerely to lie hoped that before any further proceedings will ho taken some zealous care will bo exercised to see that public money is not wasted by inattention to statutory requirements.” APPEAL DISMISSED—NO COSTS.

Air Justice Chapman concurred in tho judgment. Tho procedure was a peculiar one, but it was clear that it was to he based first upon tho notice and then upon tho application by the council. To find tho existence of an appeal from the magistrate’s finding, tho court must find some distinct provision in tho statute. No such provision could bo found.

Tiio appeal was therefore dismissed. No costs wore allowed.

The position now is a most peculiar one. Legally tho order stands until steps are taken to prevent its being enforced. These would almost assuredly succeed, in view of their Honors’ expression of opinion. If, on the other hand, the council proceed to pull down tho building, tho owner would probably bo able to recover damages. Presumably the council will proceed by giving a fresh notice and making a fresh application in proper order.