BRICK AREA.

Hauraki Plains Gazette, Volume XXXVII, Issue 4975, 17 May 1926, Page 2

BRICK AREA.

CONTRAVENTION OF BY-LAWS-MODIFICATION CLAUSE APPLIED. At the April meeting of the Paeroa Borough Council an application from a firm of local builders on behalf of Mr W. M. Cullen was, lodged. A permit was sought to erect a, detached building in wood and iron the rear of. the shop recently occupied by Mr T. H. Hale, 7ft from William Street, and 6ft from the boundary fence between the section proposed to be built on and the adjoining section. At the" April meeting the matter was carefully considered, and after: a lengthy discussion the application was deferred to enable the applicant to put it in order, as the building proposed was contrary to the brick area by-la,ws. As some of the councillors at that meeting were, opposed to deferring the granting Of the permit, it was also agreed that ,a solicitor’s, opinion as to the validity of the granting of the request in view of the by-laws should be obtained. In meantime the local solicitor acting for the applicant, in reply to the council’s views on the matter, wrote: “I admit that sections 15* and 16 of part X111.,' if they stood by .themselves, would be an effectual bar to the application, but it would seem that section 88 was expressly inserted to prevent a too rigorous .application of. these two sections}. This section coritains its own safeguard against the indiscriminate granting of permits to such applications, in that the provisions of sections 15 and .16 can only be waived on the s consensus of opinion of five councillors;. In order for the application under review to succeed it would be necessary to show that .‘great loss and inconvenience wa,s- caused to any perjson without corresponding benefit to the community,' and I submit, tliat .the loss of rent, payment of rates and deterioration of premises through being unoccupied, and the fact that they are uninsurable while unoccupied is a great loss tri the owner, and While it continues no benefit .therefrom is reaped by the community. It is, a loss sufficiently great to invoke section’BB.” The Mayor (Mr W. Manshajl) -forwarded the following letter to Mr T. F.> Martin, counsel to the Municipal Corporations Association, 'Wellington, asking for his opinion :— “The following clauses appear in our by-laws. The. following sections —l5 to 19—apply exclusively te. and are enforceable within ,the limits of, area No. 1: " “15. No person shall erect, alter, add to, remove, renew or repair external walls, party wa.llsi, or chimneys off-any' building, except as allowed for repairs in section 16 of this by-law, unless such walls or chimneys be of brick, stone, concrete, or . other hard non-comb.ustible. material.’, : “16. The external walls composed of wood or iron o'f any building already erected may be repaired with the same .materials, of which they are composed, provided that such repairs extend only to the outer or inner lining of the walls, and not to the studding or plates, excepting the ground plates and lower six inches of stud. “There is also a dispensing power contained. in \the following clause ‘BB. Iff, in the opnion oft not less than five councillors; a full, compliance with this part of these _by-la,ws, or any provision thereof, would needlessly injuriously ,’affect the course and operation of business or be attended with great loss .and. inconvenience to any. person without a corresponding benefit to the community, the council, may, in the votes of not less, than five eouincillors, on special application, relax the strict observance of any provision or inodify the same, provided that; such other .terms as they may impose/ be complied with by the applicant.’

“Wopld it be legaJ to use such dispensing power to entirely nullify the brick area by-laws, ii.e., to the extent of granting a permit to erect a? building in wood and corDugated iron: .witlkin the No. 1 area. “Would a. councillor who was" an agent for an applicant seeking shell a permit as set out in question 1 Do debarred under’ section '57 of the Municipal Corporations Act from voting upon or taking part in any discussion concerning the application for such permit?” “If question. 2 is answered in the negative, would,a, councillor who, as: a land and estate agent for the applicant, was neogtiating a lease., the completion, of which was' dependent on the granting of such a permit, be debarred, as per question 2?” REPLY OF COUNSEL. The following reply was received from ’Mr T. F. Martin :— “Ahswer to question 1: By-law No. 15 excepts only the case of contain wooden buildings erected before the date of the by-law. The dispensing clause probably applies generally" to the whole set of. by-laws, but in ;toy ease, it is difficult to see how fihe erection of a building in wood, and corrugated iron in the brick area could come within the clause. It ca'n hardly be said that to erect the bundling ' in brick would ‘needlessly in-* juriously affect the course and operation of business or' be attended with great loss and inconvenience to any person without a corresponding beriefit to the. community.’ Indeed, the latter words almost make the dispensing clause inapplicable to a case of the kind you'put, as: it is; to' the. benefit of the rest of the houseowners in the brick area that other owners should also build in brick, Giving to danger from fire. “Answer to question 2: He would: not be debarred unless he was; to get a commission or had some other pecuniary interest in the matter.” “Answer to question 31 Yes, if he was acting for a, commission.” In moving that the application be declined the Mayor drew attention to the fact that the counsel’s opinion was that the application was blit of order. Continuing, the said tha(t he

had done all he could, in .the matter, .and contended thafi there wa,s no evidence of hardship inflicted by the enitorcement of the by-laws arid declining the application. The difference in the cost of the proposed building and a b similar one in brick .would be about £6O, and such additional cost could not be reasonably said to be a, hardship on so .large a property owner. Eight weeks’ rent ha<d been losjt by the applicant’s non-compliance and whittling of the by-laws, but the council could not be blamed for that. The council had a duty .to perform, and the brick area by-laws, should be Resolutely held to. The responsibility of protecting the town and holding to the by-laws rested largely with the councillors, and - he trusted that they would carefully weigh the matter before recording their votes.

In . seconding, Or. E. A. Porritt said, that whichever way the matter was looked at it would establish a precedent, for the reaspn that if one was granted others could not be refused. He would point out that the council had been given discretionary poweifs under section 88, which section modified but did not nullify the by-laws. It was reasonable to expect a builder to acquaint himself with local body building by-laws, and conform, to them. ' Cr. EL Edwards said that he knew he was the land agent referred to by the Mayor in his letter ,to Mr Martin. He thought the Mayor had “hit below the belt,” but he would pass; it over; but in doing so he would point out that another councillor, who was also a land agent, had moved a resolution involving a property transaction, but nothing had been remarked about the matter. He would not say any more for the present.

Or. F. E'. Flatt said that it was necessary to ’make a stand. He. thought it'was not’ right that five councillors could control so important a matter as the brick .area, by-law®. It was unreasonable to suggest that a property owner could, dictate ,to tne courfcil. He failed to see how a hardship would be inflicted simply because the by-law, which was not unreasonable, should be enforced. If the resolution was defeated it would give speculators from other parts the chance to coma into .the. town and obtain the maximum return from the minimum outlay. That was undesirable, and not in the interests of progress. . Local people had faith, in the future of Paeroa, and were, willing to comply - with the by-laws. If there wgis any hardship imposed it was not the (fault of the by-laws, but because the applicant failed to get a tenant for his shop on account of the high rent asked. Cr. Flatt mentioned two shops in Belmont Read which stood as ’ a, mcnuriient to the man who had consistently tried to evade the bylaws. He ha,d strenuously fought (for the provision of .brick area by-laws and the progress of Paeroa., and would always, oppose any suggestion of “let-' ting up” on those by-laws.

Cr. FI. J. Hare supported the previous speaker, and tsaid that if the council relented on the application under to be consistent it would have to relent, when future applications were received. Such a course would, be disastrous to the welfare of the town,, and there would be no end of trouble. He that he. knew of other pennits that would be applied for : f the one under dis*' ciission was granted, and asked where the matter would end.

Civ, J- W. Silcock said he was opposed to the resolution, and pointed out that the building was not going to be erected on the'main street. Similar applications bad been granted, the only difference being thiit the buildings were actually attached to the main portion. Mr Cullen was an old a,nd highly respected' resident bf Paeroa, and had done much tor the progress and development of the town. The speaker said .that he resented the remarks of Or. Flatt concerning the applicant. This brought Cr. Flatt to his feet. He contended that his. remarks were justified, and Instanced the trouble that had arisen over the shop which was occupied by the late Mr W. H.. Mahony. Cr. Hare said he took strong exception to* Cr. Edwards’ remarks,, and asked when he, as the other' land agent referred to, had moved a resolution in open council involving a property transaction.

Cr. Edwards rose to a point of order, and asked the Mayor to see-that the rules of debate were observed. The Mayor, in his reply as mover of the motion, said ..that there was no suggestion of hitting Cr. Edwards below the belt. A competent legal opinion had been caught, and alii the correspondence had been a vailable to tne councillor. The erection of the building on the lines; of the permit had been offered to him, but he .had refused because it was not according to the by-laws. He appealed to the council to be guided by the legal opinion, which stated quite clearly that the building as described on the application could not be legally granted. The resolution that .the pennit be declined was then put, and was declared, lost on the showing of hands, the voting being : For, the Mayor, Crs, Flatt, Porritt, and Hare ; against, Crs. Brenan, Edwards, Silcock, de Castro, and Pinder.

A FURTHER RESOLUTION. Au soon as the decision was known Cr. Edwards moved that a permit on the lines of the application be granted. , Speaking to his resolution, Cr. Edwards contended that the application was not directly opposed to the bylaws, and he could quote 14 cases where minor buildings had been erected behind shops in the main street. The building for the applicant was being detached for a specific purpose. If a. brick building was insisted upon it would mean a, hardship to the tune ofc nearly 250 per cent, increase on the proposed building. Mr Cullen had been in business in Paeroa for 22 years, and was, held in the highest esteem by all. He had acquired native and other land and opened it up for settlement at low terms, and in many ways had assisted the development of Paeroa. Cr.Flatt's remarks were resented by the speaker, who thought an explanation

of the statement® was necessary. Qr. Pinder seconded the resolution, and, contended that the application was fair a,nd reasona,blp. and if the resolution was not carried a hardship would be unnecessarily inflicted. Cr. Flatt said, that he wished to make it quite clear .that his remarks about Mr Cullen referred only to the trouble the council had had with him. over building by-laws in the P?st. Admittedly Mr-Cullen had helped the town along in many ways, but became of that he could not expect to run the council. It was a thousand pities the council had not seen the wisdom in refusing the granting of the permit. Cr. Edwards thanked Cr. Flatt for the explanation of his remarks concerning the applicant. The Inference contained in them could not paps unchallenged, especially when so served.The Mayor said that he was afraid the council’s brick area by-laws, were “smashed for ever.” He then put the motion that the application be granted, and it was carried, the voting being : For, Crs. Edwards, Brenan, Silcock, de Castro, apd Pinder; against, the Mayor a.nd Crs. Hare, Flatt, and Porritt. ... 1 AN EXPLANATION DEMANDED. The resolution having been disposed of, Cr. Hare asked Cr. Edwards to apologise, or at least explain why he had interred that he had spoken to and moved a resolution in open council involving a property deal- The minute book did not show a,ny such record. v Cr. Edwards explained that he had not referred to Cr. Hare’s integrity, and neither had he said the resolution had been moved by him in open council. No offence had been intended, and he had only mentioned the riiatter to show that a similar position which had relation to the two councillors’ calling had passed unchallenged.