Friday, Jan. 13, 1899. (Before DAY and LAWRANCE, JJ.) YABBICOM (app.) v. KING (resp.). (a) Local government-Bye-laws-Local authority Power of local authority to waive compliance with bye-laws.

A local authority have no power to dispense with the enforcement of their own bye-laws, or waive compliance therewith; and accordingly, if plans for new buildings are required by statute to be approved" by the local authority, such approval must be not merely a de facto approval by the local authority, but an approval by them in accordance with the bye-laws then in force; and, if such approval be not in accordance with the bye-laws, it is invalid and is not binding on the local authority who gave it.

CASE stated by justices of the peace for the city and county of Bristol.

At a petty sessions held on the 10th May 1898 in and for the city and county of Bristol, an information was preferred by the appellant, a district surveyor under the Bristol Improvement Acts 1840 and 1847, against the respondent under sect. 35 of the Bristol Improvement Act 1847, charging that the respondent unlawfully did erect a certain house contrary to the provisions of the said Act inasmuch as he omitted to build a parapet to the said house.

The information was heard and determined by the justices, who dismissed the same.

The facts proved were as follows:

The house mentioned in the information was erected by the respondent at Bell Hill, in the parish of St. George, in the city and county of Bristol, at a date subsequent to the 31st Oct. 1897, being the date of the commencement of the Bristol Corporation Act 1897.

Prior to the commencement of the Bristol Corporation Act 1897 the parish of St. George was situate in the urban district of St. George, in the county of Gloucester, and, by the provisions of that Act, the said parish became part of the city and county of Bristol.

The house was one of a continuous row of houses, and the walls separating the house from the adjoining houses on either side were party walls.

The respondent had no erected parapet walls on the said party walls, and had not carried up these party walls above the roofs of the adjoining

houses.

The house was erected in accordance with a plan deposited by the respondent with the urban district council of St. George before the 12th June 1896. This plan did not comply with the 26th of the bye-laws made under sect. 157 of the Public Health Act 1875, and then in force in the urban district of St. George, in that it showed that the party walls of the house were not intended to be carried up above the roofs of the adjoining houses as required by the said byelaw; but, notwithstanding such non-compliance, the urban district council purported to approve the plan on the 12th June 1896, which approval was indorsed on the plan as follows:

St. George Urban District Council.-Plan approved 12th June 1896.-(Signed) A. G. VERRIER, Presiding Chairman.

(a) Reported by W. W. ORR. Esq., Barrister-at-Law.
MAG. CAS.-VOL. XIX.

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The Bristol Improvement Act 1847 enacted as follows:

Sect. 35. And be it enacted, that all separate side walls or party walls shall be well and closely lined up to the under side of the slates upon the roof of the building, and the parapets of the height and thickness as specified for party walls shall be built on such side walls or party walls.

Sect. 37. And be it enacted, that every parapet wall and every party wall hereafter to be erected within the city and county shall be carried up at least two feet above the slates or other covering of the roofs of the premises adjoining.

The Bye-laws of the Urban District of St. George, dated the 4th Nov. 1885, which were admitted in evidence, though objected to by the respondent, provide :

Sect. 26. Every person who shall erect a new building shall cause every party wall of such building to be carried up nine inches at the least in thickness. (1) Above the roof, flat, or gutter of the highest building adjoining thereto to such height as will give in the case of a building of the warehouse class or of a public building a distance of at least three feet, and in the case of any other building a distance of at least fifteen inches, measured at right angles to the slope of the roof or above the highest part of any flat or gutter, as the case may be.

The Bristol Corporation Act 1897 (60 & 61 Vict. c. ccxxx.) enacts:

Sect. 15. All bye-laws, rules, and regulations, and all orders (other than precepts) made by the urban district councils or the local authorities respectively (so far as they relate to the added area) under any Act of Parliament and in force at the commencement of this Act are hereby annulled, but all penalties incurred thereunder and all forfeitures which have ensued by reason thereof may be enforced and recovered by the corporation in like manner and in all respects as the same respectively might have been enforced and recovered by the respective councils and local authorities as the case may be in case this Act had not been passed, and shall be carried by the corporation to the credit of the district fund: Provided that all plans of new streets and of new buildings within the added area approved by the urban district councils or the local authorities respectively before the commencement of this Act shall be valid for the period of two years after that date, but at the expiration of that period fresh plans of such new streets and new buildings as shall not at that date have been commenced shall be deposited for the approval of the corporation, which plans shall be in conformity with the bye-laws, rules, and regulations in force within the city.

Sect. 30 (1). Except as by this Act otherwise expressly provided all the jurisdiction, powers, rights, privileges, authorities, immunities, and duties of the corporation as a municipal body and of the council of the existing city and any committee thereof acting in the execution of such enactments as are at the commencement of this Act in force within the existing city, and of the corporation as the urban sanitary authority for the district or any committee thereof shall extend to and throughout the city, and all charters and enactments and all bye-laws, orders and regulations, lists of tolls, tables of fees, and payments and scales of charges at the commencement of this Act in force within and applicable to the existing city or to the burgesses or inhabitants thereof shall, subject to the provisions of this Act, extend and apply to the city and the inhabitants and burgesses thereof, until or except in so far as any of such bye-laws, orders, regulations, tolls, fees, payments, or charges may be repealed or altered.

The appellant contended that, on the authority of Re McIntosh and The Pontypridd Improve

N

ment Company (8 Times L. Rep. 128, 203), the approval by the Urban District Council of St. George of a plan contravening the bye-laws of the urban district of St. George was a nullity; that the proviso to sect. 15 of the Bristol Corporation Act 1897 applied to cases where the bye-laws of the urban district of St. George differed from the bye-laws, rules, and regulation in force within the city, and preserved for two years the right to build in accordance with approved plans complying with the bye-laws of St. George, but that it did not make valid a plan which had been illegally approved; that the case must be regarded as if no plan had been approved by the district council; that the respondent's house must therefore comply with the Bristol Improvement Act 1847; and that, by sects. 35 and 37 of that Act, the respondent was obliged to erect parapets on the party walls of his house and to carry up such party walls at least 2ft. above the slates or other covering of the roofs of the adjoining premises.

The respondent contended that, as the District Council of St. George had in fact approved of the plan of his house, he was entitled under the proviso to sect. 15 of the Bristol Corporation Act 1897 to build the house in accordance with the plan, and that the justices had no authority to inquire whether the plan did or did not comply with the bye-laws of the urban district of St. George, nor whether the approval of the plan was or was not valid.

The justices were of opinion that the respondent's construction of the Bristol Corporation Act 1897 was correct. They were also of opinion that sects. 35 and 37 of the Bristol Improvement Act 1847 did not make it obligatory to build parapets on party walls of buildings erected in the city, but merely required that if any parapets were built they should be of the height and thickness therein specified.

The question for the opinion of the court was, whether, on the above statement of facts, the justices were right in their construction of sect. 15 of the Bristol Corporation Act 1897 and sects. 35 and 37 of the Bristol Improvement Act 1847, and whether they were correct in their determination.

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Clavell Salter for the appellant.-The proviso to sect. 15 of the Act of 1897 says that all plans of new buildings approved by the urban district councils before the commencement of the Act shall be valid for two years after that date. The question, therefore, is what "approval " here means; whether it means merely a de facto approval of the plans, or an approval which can be lawfully and validly given-that is, an approval in accordance with the bye-laws. We submit that "approval" must mean an approval which the local authority could lawfully give, and that must be an approval in accordance with the byelaws, and the approval of the plan now in question was not in accordance with the bye-laws. The local authority dispensed with the enforcement of the bye-laws, but they had no power to do so. The case of Re an Arbitration between McIntosh and The Pontypridd Improvement Company (8 Times L. Rep. 128) shows that a local authority have no power to dispense with the enforcement of their own bye-laws. Therefore the de facto approval of this plan was not sufficient and the approval ought to have been such

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as to satisfy the requirements of the bye-laws. The object of the Act of 1897 is clear, namely, that a builder should not be in a worse position than if the added area had remained outside the city boundaries, and for that reason it provides that plans approved-that is, legally and properly approved-should remain valid for two years after the commencement of the Act. This approval would not have been valid as against the Urban District Council of St. George who gave the approval, and it cannot therefore be valid as against the Bristol Corporation, who are now in the same position and have acquired the same rights in this matter as the district council formerly had. The justices were therefore wrong in dismissing the information.

J. E. Bankes for the respondent.-The respondent as a matter of fact obtained the approval of the then local authority in respect of this plan, and he erected this house at a considerable cost. That being so, it could not have been possible for that local authority, having in fact given their approval and having allowed the respondent to build the house upon the strength of that approval, to have then stepped in and to have raised the objection that the approval which they themselves had given was not an approval in accordance with the bye-laws and was invalid. It would be altogether inequitable to allow them to do so under the circumstances of the case. They could not have said: "You must stop your building, as the plan is not in accordance with the bye-laws." The object of the proviso in sect. 15 of the Act of 1897 was to continue that state of things for two years. It does not place the Bristol Corporation in a better position than the St. George's District Council were, and approval" there means approval in fact. The case of Re McIntosh and The Pontypridd Improvement Company (ubi sup.) and the cases there referred to by Wright, J., namely, Baxter v. The Corporation of Bedford (1 Times L. Rep. 424) and Kerr v. Corporation of Preston (6 Ch. Div. 463), are not in point in this case. The justices were right in dismissing the information.

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DAY, J.-I am clearly of opinion that the case of Re McIntosh and The Pontypridd Improvement Company (ubi sup.) controls and governs this case. That case is quite rightly decided upon every point, both in principle and upon the authorities, which are referred to in the judgment of Wright, J. It is clearly a binding decision upon us, and should have controlled the magistrates. I quite agree with the contention for the respondent, that the Bristol Corporation are in no better position, and in no different position, from that in which the Urban District Council of St. George were as to exercising the authority vested in them. I am clearly of opinion that the St. George's Urban District Council would have been entitled at any time to take advantage of the law, and that they had no power to control the law as decided in McIntosh's case (ubi sup.). The bye-laws have the effect of law which it is not within the competence of any private body, or any body which exercises quasipublic authority for the time being, to dispense with. Such bodies are no more entitled to dispense with the law of England than private persons are entitled or have the power to dispense with it. They have no dispensing power whatever,

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the

and they are bound by the law like anybody else. They are bound by their bye-laws, and they have no power at all to dispense with the bye-laws. The bye-laws are binding, and the District Council of St. George ought to have said so when the plan was presented to them for their approval, and I may observe that the Corporation of Bristol are not set king in this case to enforce any power other than what the St. George's authority could have enforced. It is said for the appellant that the dispensation was not operative, and we are clearly of opinion that it was not operative, and that the Bristol Corporation were entitled to take up the position they did, and to examine the question and say whether the building was in accordance with the bye-laws or not. They have gone into the question, and have come to the conclusion that the building is not in accordance with the bye-laws which had been dispensed with by the local authority. The question of their dispensation by the local authority having been brought up for investigation before the justices, the justices ought to have come to conclusion that the dispensation was invalid and had no operation in any sense. It is also said that by reason of sect. 15 of the Act of 1897-the amalgamating Act, if I may so call it-the plan having been approved is effective. That, however, is merely begging the whole question. proviso in that section says: "Provided that all plans of new streets and of new buildings within the added area approved by the urban district councils or the local authorities respectively before the commencement of this Act shall be valid for the period of two years after that date." That means not actually approved, but legally and lawfully approved, and approved in such a way as to bind the persons who give the approval. It does not mean to give effect to invalid dispensations or to invalid plans, or plans which violate the bye-laws. All the acts done under the bye-laws are maintained and upheld by the section, but no acts disapproved by the bye-laws are rendered effective against the bye-laws or against the statute. To my mind, the magistrates came to a wrong conclusion in holding that sect. 15 had any other and different effect, and the true construction is the one I have placed upon it. Therefore the answer to the question whether the magistrates were right in their determination should be in the negative.

The

LAWRANCE, J.-I am entirely of the same opinion. I think that the approval referred to in sect. 15 of the Bristol Corporation Act 1897 means an approval which could have been law. fully given by the St. George's Urban District Council. The Bristol Corporation had a perfect right to see whether the urban district council, when giving their approval to this plan, were acting within their legal powers-that is, within the powers conferred by their bye-laws. I think this case is entirely decided by the authority of the case of Re McIntosh and The Pontypridd Improvement Company (ubi sup.). That case is absolutely in point, and the judg ment of Wright, J. is altogether clear on the point before us. He there mentions two cases, one of which, namely, Kerr v. Corporation of Preston (ubi sup.), is strong to show that a public body could not bind themselves by tacit acquiescence, even if they stood by and knew that what

was being done was being done illegally and they had power to interfere. The case is very much stronger in regard to acquiescence, especially when that acquiescence is sought to be used as an estoppel against them. The other case is that of Baxter v. The Mayor and Corporation of Bedford (1 Times L. Rep. 424), in which the learned judge says several times that, if the corporation or their officers did waive their powers, they had no right to do so. If so, it seems to me that the first duty of the Bristol Corporation was to see that the approval by the urban district council was a legal one. There can be no doubt under the circumstances it was illegal-that is to say, it was contrary to their byelaws-and therefore the Bristol Corporation were right in the view they took, and this appeal will be allowed.

Appeal allowed. Case remitted to justices with instructions to convict.

Solicitors for the appellant, Robins, Hay, Waters, and Hay, for D. Travers Burges, Bristol. Solicitors for the respondent, Meredith, Roberts, and Co., for T. D. Sibly, Bristol.

Monday, Jan. 16, 1899.

(Before LAWRANCE and CHANNELL, JJ.) BROOKS AND ANOTHER (apps.) v. HAMLYN AND OTHERS (resps.). (a)

Wilful damage to property-"Fair and reasonable supposition" of right-Bonâ fides―Jurisdiction of justices-The Malicious Damage Act 1861 (24 & 25 Vict. c. 97), s. 52.

By sect. 52 of the Malicious Damage Act 1861 "whosoever shall wilfully or maliciously commit any damage, injury, or spoil to or upon any real or personal property whatever either of a public or private nature,' may be convicted before a justice of the peace, and imprisoned and fined, 'provided that rothing herein contained shall extend to any case where the party acted under a fair and reasonable supposition that he had a right to do the act complained of," &c. The appellants pulled down a hedge bounding Fernworthy Down, which was held in undivided shares by the respondents. They had done so on several previous occasions. Both of them lived in houses near the Down, and under leases granted by the predecessors of one of the respondents. They had committed the acts complained of in pursuance of a supposed right of pasture on the Down which they contended was a common, and, although for many years they had attempted to carry out their supposed rights, they had always been disputed. There was no mention in any of the leases of any grant.

The justices were of opinion that the rights that they claimed could not exist in law, and that their jurisdiction was not ousted, and they convicted the appellants.

Held, that the conviction was right, as there was
no fair and reasonable claim of right.
White v. Feast (26 L. T. Rep. 611) followed.
CASE stated.

The appellants were charged on an information under sect. 52 of 24 & 25 Vict. c. 97 with mali(a) Reported by W. DE B. HERBERT, Esq., Barrister-at-Law.

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ciously and unlawfully committing damage and injury to real property, to wit, a hedge or fence belonging to the respondents.

Evidence was given that the piece of hedge which the appellants were charged with pulling down extends from the corner of Blackabroom to Battishill Corner; and further evidence was given that the hedge in dispute was originally built nearly forty years ago by one Philip Brooks, who was then the tenant of Fernworthy Farm, the property of the predecessors in title of the respondents, he having repaired an ancient dole or bank on the same line and erected two gates thereinone at Blackabroom Corner, and the other at Battishill Corner-to give access to the highway above and to the other part of Fernworthy Down, lying on the other side of the road, the whole or part of which down lying on the eastern side of the road being locally known as Veal or Vale Down. The gates were frequently locked.

Fernworthy Down is held in undivided shares by the respondents.

The fence gradually wore down, and about four years ago was rebuilt by the tenant of the respondent Michael Davey. It was pulled down the same night by the appellants without the knowledge of the respondents.

One day in the early part of December last, one John Lintern (a tenant of the respondent Davey) with others commenced to re-erect the hedge, and continued doing so for three days, but each day the work was pulled down by the appellants. An interval then occurred for three days, and on the fourth day the workmen referred to again commenced the work, and the appellants persisted in pulling same down as it was built, they informing Lintern that they claimed to have a right to graze their cattle on the land.

On a piece of the Fernworthy Down, east of the highway at its extreme eastern end, known as Nodden Gate, is a wall called the King's Wall, which is the boundary between Bridestowe and Lidford, and on the south side is the Old Park Horse-road, east of which the commons of Dartmoor lie. The ownership of Fernworthy Down was not disputed nor admitted by the appellants, but Richard Davey stated in cross-examination he had brought this action to find out if the appellants had any right there.

It was proved that ponies belonging to Thomas Brooks, the husband of the appellant Susan Brooks, were in the habit of pasturing on Fernworthy Down.

Evidence was given by the respondents that a drift had been made thereon by Michael Davey, from ten or twelve years ago, when ponies marked "T. B." had been impounded on the Middle Fernworthy Down, but the next morning they were missing, and also that shortly afterwards the now deceased husband of the appellant Jane Stanbury had applied to rent the right of pasturing on Fernworthy Down, which the respondent Davey had declined to grant.

Evidence was also given by the appellants that they had for over thirty years past depastured their cattle and ponies on the down, although their claim to do so had been challenged by their cattle being at times driven off.

Both the appellants lived in houses which were near the down and under lease, as regards the husband of the appellant Brooks, for the residue of or term of sixty years from Ladyday 1884,

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granted by the predecessors in title of the respondent F. G. S. Hamlyn, and as regards the appellant Stanbury, on a lease for lives granted on the 29th May 1830 by another predecessor in title of F. G. S. Hamlyn.

The appellants' solicitor objected to the production of these leases, which objections were overruled.

Evidence was adduced that Thomas Brooks, the husband of the appellant Susan Brooks, lived as tenant of the father of the respondent Richard Ash in another cottage near Brooks' present residence, and occupied therewith a field, part of Battishill Farm, at rents of 31. and 41. respectively, which latter included Ash's rights on Fernworthy East and above the railway on both sides of the road to Nodden Gate.

The respondent Richard Ash produced a notebook in which his (the respondent's) sister, since deceased, had made the following entry in his presence:

Mr. Thomas Brook, Newlake Farm, Bridestowe, settled his rent up to the 25th March 1886 and inclosed field at 31. per annum, part of Veal Down and part of Fernworthy Down, above side of railway at 4l. per

annum.

The witness stated that he saw the money paid on that occasion, but admitted that there had been no other payment in respect of it, although the same was demanded by Richard Ash. Witness further deposed that in answer to a demand made by him on Thomas Brooks, he said he should not pay any more rent for the higher part of Fernworthy Down unless the appellant Stanbury's cattle were kept away. Mrs. Stanbury refused to take them away.

Subsequent to this Thomas Brooks declined to pay any more rent, but promised to help respondent Richard Ash with his labour in harvest and look after his cattle, which he did down to 1896.

Evidence was also given on behalf of the respondents that the cattle of Brooks' father, John Brooks, found on the down had been driven off to Dartmoor by the owners of Fernworthy Down, and the same witness deposed as to an arrangement being made for payment by John Brooks of 30s. a year for grazing cattle on Fernworthy Down, which was continued by Thomas Brooks, and that the same had been paid thirtytwo years ago in his presence, but the same witness remembered that at Lidford Farm about fourteen years ago Thomas Brooks had declined to pay any more.

Evidence as to the original building of the hedge and placing of gate and posts was given by respondents, and that Newlake Farm taken by Brooks was never part of Fernworthy Down, and that the down ended at the road.

On the part of the appellants it was contended that they acted under a fair and reasonable supposition that they had the right to do the acts complained of, and evidence was adduced by the appellant, Susan Brooks, that the land in dispute had always been a common, that she had always gone to a spring of water there in summer time for water, that for a great number of years she, her husband, and his father before him, had grazed their cattle there and had never paid rent or been asked for any. That she and the other appellant pulled down the hedge about four years ago, as it was being erected, to support