TAKAPUNA COUNCIL EXCEEDS JURISDICTION

Sun (Auckland), Volume II, Issue 536, 13 December 1928, Page 13

TAKAPUNA COUNCIL EXCEEDS JURISDICTION

LAKE SECTIONS CASE OWNER SUCCEEDS AT LAW “The council cannot assume a jurisdiction it does not possess, and this is what it has affected to do in the present case,” said Mr. Justice Frazer in a judgment delivered in the Supreme Court this morning. The action was brought by Douglas j Ramsay Cargill Mowbray, solicitor (Mr. McVeagh), who sought a writ of mandamus to compel the Takupuna j Borough Council (Mr. Meredith and J Mr. Lowrie) to approve the subdivision of an area of land partly on the watershed of Lake Pupuke. Mr. McVeagh had argued at the hearing on December 5 that the council could not lawfully refuse approval of a subdivisional plan, but was restricted to making requisitions on the owner to amend such plan. When this was done approval could not be withheld. Mr. Meredith submitted that the , power to approve implied the power j to refuse to approve, and that manda- ; mus would not lie where the council i had exercised its discretionary powers, i The council had carefully considered, j the plan and had been prepared to ap- j prove part, but had refused two sec- j tions on account of the danger of pollution of the lake water. After traversing the provisions of the Municipal Corporations Act, 1920, his Honour held that there was no reference to disapproval in section 335 quoted by counsel. The more reasonable construction was that the Act gave the Borough Council no power to prevent an owner from subdividing a block, or to require him to omit any part from his plan. If the proposed subdivision contravened some by-law the council could refuse it on that ground. It could, however, only be returned to the owner for amendment. Continuing, the judgment held that although there was authority for the submission that mandamus would not lie where an effective remedy - by way of appeal existed (as provided in the Act), in the present case the right of appeal did not arise, for the Borough Council had acted in excess of its jurisdiction, and the right of appeal given by the Act was obviously confined to matters within the jurisdiction of the council. “It appears to be beyond dispute that the council was influenced by an extraneous consideration in refusing the plan,” his Honour proceeded. “It did not address itself to considering the merits of the plan or the words of the Act, but decided to withhold approval of any and every subdivision of land situated on the lake watershed. I willingly concede that the motive was highly laudable. It makes no difference that the object was laudable, though it might almost be said that ‘even their failings leaned to virtue’s side,’ ” concluded the Judge. His Honour, therefore, issued the mandamus ordering the council to approve the plan. Costs were allowed plaintiff as in a claim for £SOO.