WHAT IS A DWELLING?

Dominion, Volume 3, Issue 903, 24 August 1910, Page 5

WHAT IS A DWELLING?

: ; ? ; ■ THE DECISION. :/ v CITY' TEST CASE. . : : Mr. W. G. Riddell, S.M., yesterday delivered, reserved decision in the , case brought, by, the City Corporation against the. i'rduse Lumber, Ltd., tor an,alleged failure; after: having'unlawfully erected 'a; dwelling, to . provide an open .space at the side or.-rear of the building. 'The case "was the nisi uf its kind in .Wei■lington, and the important question at issue was whether a business premises, partly .used for residence,'is a "dwelling-; house" within the meaning of the Act. The City'Solicitor'(Mr. J. O'Shea) contended that it was, but the magistrate has how'decided'otherwise.'■ In. delivering his decision, the magistrate said that defendant was charged pith having' unlawfully :erected a new iwellinghousein the city of Wellington without providing at the side ,oi'' rear thereof an .open space as required by Section 294' of .the Municipal Corporation "Act, ,1908, and with still failing to provide'such open space. ; This was a matter which affected the public health and convenience,' and was dealt with-in. Part 28 of the Municipal : Corporation Act, 1908.' Under Section 291, subsection 1, it, ■ was. provided:. .' : "Every -person -who erects a new : dwellinghouss in a' borough,shall 'pro- -. .vide atithe side or in the rear thereof " .an open,space, exclusively belonging to- such dwellinghouse, and of an extent" not less" than. 300 superficial feet." ;:'.: .-" .. The object of. the section was to ■■••, .' . make" certain. that , in. cities and boroughs the occupiers of dwelliugnouses ■ were provided .with;.' a .proper supply S: of fresh air and sunlight. . ' : b) y. Subsection; 'I, it was provirfeu : that .such open..space .shall .extend the.entire width of',,the site, or as' .'an alternative the entire depth of the.. -.'. site, and shall be free from . any erection- there or above v the level of the ground.; 3 fixed tho minimum distance, across such open space from every part of the dwellinghouse, and.if it is over 35ft. in height • that.' space must be 30ft.' at least. Subsection 4 .stipulated "how, the height of a' dwellinghouse: must be . measured,'and Subsection 5 -staled that, whore any alteration or addition was made'to any dwellinghouse, the ■ ■open space shall not.be diminished so as to leave a lesser area than was required by this section. '.Alnothei. . subsection defined the site', of a dwellinghouse. ' ~ ■ "In the present case,": Said his-Wor-ship, ."defendant - erected, in Taranaki Place,- a-: business building of threo stories, with - a flat roof, _and ; on the top of the' roof, at each end," he later,' on erected . two : small. houses, which are occupied by some of his employees. The ■■' access to these houses is independent of that to;tht> main building,; and thu houses are not, in any way connected with its. interior. ' jDefendant; states 'that. it- is necessary.;for the purposes of his busi : Bess,: and.: for the .safety of the building and timber yard connected with .the premises that. these houses should bo occupied by some of his employees. The Wellington City Council granted permission to defendant' to erect t.he original building, but have refused permission to odd the two houses on the roof. The building is over 35ft; in height, and, according to the statute, should'have 30ft. of dear air, space, but owing to. the stacking of timber on the land adjacent thero is only a space of 20ft. on the ground _lavel. , Throughout all the subsections 'found in: Section 294 the word dwelling- ' house.is used as distinct' from the word "building' found in Section 292. of Part 28, which provides for the pulling down of unhealthy or ruinous buildings; o; from ;the ,same word found in Section 297, which-deals with deserted houses. According to ■ Stroud's Judicial Dictionary, a dwellinghouse is. a house with tho superadded requirements that it is dwelt in or that the dwellers in it are-absent only temporarily. The meaning o|' tin, word has been discussed in a number of cases under different statutes, and in all the object of the' particular statute has been considered to affect it." The magistrate said that in a case,under an Income Tax Act a .banking companyowned certain premises,' in which it.carried on business,' and;'for, the purpose of its business, required its manager to reside, in the 1 building. The bank was assessed in the -whole In his judgment, the judge said he could not-agree that tfiewhole of the building was a dwellinghouse, or. that'a bank or, a warehouse became a dwellinghouse' because one servant of the trader resided in.the building for the.purpose.of trade. On the other hand, in the case of proceeding under the :Bankruptcy Act,. the nso 1 of five rooms on 'the third and fourth floors of a- house was held to amount, to having possession. of a dwellinghouse. - m England. In Wright v. Ingle.Xqrd Justice Bowen said a house was. a.-building, iwhich' was capab'le of being used as a dwellinghi-usc. ft would -also include large .buildings, such as factories and , other buildings occupied for specific purposes. .: • : , said his Worship, "indicates. the difference between the words and_ shows that 'house' includes a dwellrngnouse, as. well as other buildings. There is no definition of dwellinghouse m the Act, .in.l" the section must lie considered..is'applying, to dwellinghouse as opposed to houses or., buildings. Whether the occupation, of part of the defendants'.-building makes it such a' dwellinghouse as. is referred to in Section Z9i is a question open to some difference of-opinion, but, after considering the Interpretation of the word under the decision referred to, as well as the object of the statute, [ do not think it is: nor do I think that the erection of two houses, on the roof of the third story constitutes an - addition to an existin" dwellinshonse. The .information will bo dismissed. . . M . r ~ J - O'Shoi /City,'. Solicitor) asked his Worship tn ; fax security of appeal which was fixed'at £10 10s. Solicitor's fee was not allowed tho defendant compSd Mr - T - S - Weston a "-