FLAT OWNER WINS APPEAL

Wanganui Chronicle, 8 November 1946, Page 6

FLAT OWNER WINS APPEAL

BUILT WITHOUT PERMIT SUPREME COURT RULING NOT A CON TIM ING OFFEN CE. A successful appeal against his conviction lor a breach of the Wanganui City Council building by-laws was made in the Supreme Court, Wanganui, yesterday, by Herbert Hewitt, owner of a block of converted flats in London Street. Af.er hear.ng legal argument from counsel for appellant and the City Council, Mr. Justice Fair ruled that the offence, could not be regarded as a continuing one, as contended by the City Council. If this were so, His Honour said, appellant might be lined a maximum of £5 a day for the rest of his life, or until the building was destroyed. Mr. C. N. Armstrong appeared for appellant and Mr. C. F. Treadwell, city solicitor, for the City Council, respondent in tiie appeai. When the case opened His Honour said that he had looked into the cases referred to by the magistrate, Mr. J. H. Salmon, S.M., who had gone into them with great care. However, His Honour felt that at present the cases referred to dealt with provisions so different in nature as not to be directly applicable to the present case. He mentioned that so that proceedings might be shortened. Mr. Armstrong submitted that as no building work had been done after June 10, unless the erection of the building was held to be a continuing offence none could be committed after June 10. The work had been completed on May 31 and defendant had been fined £1 a day from May 15 to May 31 on the first information heard. “It is the intention of the City Council to charge the defendant continually until this building is pulled down,” said Mr. Armstrong. Mr. Treadwell: You don’t know that. Mr. Armstrong: It is indicated by the council’s actions. PUBLIC INTEREST.

Mr. Armstrong said that it was a matter of considerable public interest, because seven tenants were living in the flats. If it was intended to make an offence a continuing one express words had to be found for this in the Statute or by-law concerned. The construction of a penal statute must be absolutely clear before the Court could bring a case within its bound*.

Referring to Section 370, sub-section 3, of the Municipal Corporations Act, 1933, the magistrate had said that this did not help the council’s case. “Here is a building erected and occupied before an application for its erection i$ made,” said His Honour. “Then the city engineer replies refusing a permit as if the work had not been started. There is something unreal about the whole thing. We must face the facts and approach the situation as it is, not on a factional or imaginative basis.

Mr. Treadwell said that the letter from the city engineer had been written by reason of the fact that there was no possibility of appellant complying with the city by-laws in any way. Appellant had taken the situation into his own hands by altering the premises and putting tenants in. His Honour: The council should face the facts by saying either that it will pull the premises down, alter it, or do nothing.

Mr. Treadwell: The appellant himhas created the state of affairs, and the council is taking a reasonable altitude when it says to him, "you created this situation, ana you must repair it.”

In reply to His Honour. Mr. Treadwell said that the building should be pulled down to the foundations. The council did not know whether some Darts of the construction conformed with the regulations because they had been embodied in the alterations belore the council saw the building in its new form. MANY COUNCILS CONCERNED Mr. Treadwell said that the Wanganui City Council’s by-laws were those framed bv the Standards institute, and they had been similarly adopted by most city and borough councils in Nevy Zealand. The t-ase was therefore of importance to a great many local bodies. Counsel said that although the Building Controller had given appellant permission to erect a certain type of building, it was the City Council who said how that building should be erected in accordance with .its bylaws. It was of vital importance that the by-laws should be strictly observed. Reviewing the facts of the case in giving judgment, His Honour said that appellant, Hewitt, had been fined £l6 on June 10 after pleading guilty to causing the commencement of the erection of the building Without a permit, the line being at the rate of £1 a day while operations were in progress. No further building took place after June 10, but on ’July 24 another information was laid by the City Council charging appellant with causing the erection of the building without a permit between June 11 and July 24. His Honour held that there was no distinction between the two informattions in that one alleged the commencement and the other the erection of the building. The question to be decided was whether the offence was a continuing one. The magistrate had contended that if he had been free to construe the section he would have dismissed the second information, as the building was completed on June 10 and there was no offence after that date. The magistrate had considered, however, that the authorities compelled nim to hold that a continuous offence was committed, and had fined defendant 5s a day for the period involved. “STARTLING CONCLUSION.” “As Mr. Armstrong submitted, the result of such a conclusion would he so startling, unusual and surprisuir that the Court must look wlln care before confliming it.” His Honour added. “If that view was correct, once an offence was committed the person responsible would be liable Io a maximum line of £5 a day for the rest oi his life or while the building existed. “It wouid follow that, if a building were erected which not only complied with the City Council by-laws but also every other regulation, it would subject its owner to a penalty of £5 a day until he was relieved by the destruction of Ihe building. "I agree with the magistrate that the words of Section 371 (3) of the Municipal Corporations Act do not apply to a state of affairs such as are present in this appeal. “We must take the natural meanings of the words used, and to read them as suggested by counsel for the City Council would be straining the ordinary meaning of words. In a penal statute a penalty must not be imposed on a strained construction of words. We must presume that the legislature did not intend this result.” Mr. Justice Fair added that where

a permit was not obtained and a building was commenced a penalty was provided. If it was erected in a state not in accordance with the city by-laws, Section 371 of the Municipal Corporations Act, and clause 112 of the Wanganui city by-laws covered the situation by providing that structural defects must be remedied. There was, therefore, no necessity to make the offence a continuing one. His Honour then distinguished the cases under which the magistrate had felt bound to convict, allowed the appeal and quashed the conviction. Appellant was allowed £8 8s costs and disbursements!