BUILDING BY-LAWS.

Wairarapa Daily Times, 22 December 1927, Page 2

BUILDING BY-LAWS.

TEST CASE AT WOODVILLE. Judgment was delivered in Musterton yesterday afternoon by Mr S. L. I*. Free, S.M., in an important test ease in which the Woodville Borough Council proceeded against Charles Forbes, building contractor, for erecting a party wall between two shops otherwise than in accordance with the Woodville Borough by-laws and further with failing to pull down such wall within a reasonable time after due notice had been given. The facts were not in dispute. In July last Forbes took plans and specifications of a building to be erected by him in Woodville to the Town Clerk who is also building inspector. The Town Clerk did not inspect the plans and specifications, but claimed that lie asked defendant if they were in accordance with the by-laws and on being answered in the affirmative he issued a permit. The defendant claimed that he had no recollection of such question being asked, but added that if it was he would have made such an answer as lie believed the plans were in accordance with the by-laws. In this he was inistaken.

In the course of his judgment the Magistrate stated that by-law 115 required the two shops to be divided by a party wall of material mentioned in the schedule. The plans and specifications clearly provided for a wooden partition and the frame work of this Wall had been erected prior to the commencement of these proceedings. It would now cost a considerable sum to pull down the work already clone and make ready for the erection of a party wall. The council estimated the work at £6O and the defendant estimated it at £SOO. The judgment observed that the truth no doubt lay between these figures, but the Magistrate did not propose to fix it. For the complainant it was contended that the permit was given on condition that it was executed, in accordance with the building requirements as stated in the permit. It was assumed by complainant that the by-laws were convertible terms while counsel for defendant contended that these conditions could not apply to matters expressly stated and clearly shown in the plans and specifications. With this the Magistrate agreed.

The case resolved itself, the judgment continued, into the question, could a local body approve of plans and specifications and after the work had been partly done have the work pulled down and thereby penalise the builder. The Magistrate quoted an authority on a similar New Zealand case in which it was decided that the., certificate of the inspector was conclusive that a building was in accordance with the by-law and that it' it av is intended to make it an offence to erect a building contrary in any respect to the by-law, though in accordance with plans and specifications certified by the inspector, it was read as being unanswerable. But for the decision of the foregoing ease, the Magistrate noted, he would have considered the building inspector incompetent, to waive strict compliance with such bylaw. Cases decided on the point in England decreed that a local authority empowered to make by-laws had no power to sanction a departure from such bylaws and therefore the approval of a local authority of building plans which contravened the by-laws made by that authority was illegal and inoperative. Tn by-law 158, tlie council could, upon the advice of the engineer, allow the adoption of any method of construction notwithstanding that such method was not strictly in accordance with the provision of the by-law. There was no evidence that the council had the question of the party wall brought before it by the engineer or any other person and the performance of the bylaw was never waived by the council. In the opinion of-the Magistrate the act of the inspector in granting a •building permit was not the act of the council contemplated by by-law 158. “If I were at liberty,” Mr Free added, “to apply the law as I conceive it to be laid down in the .English cases I might possibly come to a different conclusion, but it was not the province of an inferior court to express disagreement with a decision of the Supreme Court. Both informations will therefore be dismissed.” Security for appeal was fixed at ten guineas for each case.