QUEEN'S BENCH DIVISION. Friday, Aug. 3, 1894. (Before MATHEW and KENNEDY, JJ.) LONDON COUNTY COUNCIL (apps.) v. WORLEY (resps.) (a) Six Practice Summary procedure-Recovery of penalties months' limitation-Continuing offence-Height of buildings -Metropolis Management Act, 1862 (25 & 26 Vict. c. 102), 88. 85 and 107. Sect. 85 of the Metropolis Management Act, 1862 (25 & 26 Vict. c. 102) provides that no building (except a church or chapel) shall be erected on the side of a new street of less width than fifty feet, which shall exceed in height the distance from the external wall or front of such building to the opposite side of such street without consent, &c., nor shall the height of such building be increased so as to exceed such distance, &c., and the section goes on to say, " and every person committing any offence under this enactment shall be liable to a penalty of 5l., and in case of a continuing offence to a further penalty of 408. for every day during which such offence shall continue after notice." Sect. 107 of the Act provides that no person shall be liable for the payment of any penalty, "unless the complaint respecting such offence has been made before a justice within six months next after the commission or discovery of such offence." The builders of the structure after a conviction against them for an offence under sect. 85 of the statute finished the work, and left the premises; the appellants therefore proceeded for continuing penalties against the respondent, the owner of the structure. The magistrate dismissed the summons now taken out by the appellants against the respondent for continuing penalties. Held, that the respondent was liable for penalties for continuing the offence, as proceedings had been taken by the appellants within six months after the offence complained of had been committed. CASE stated by one of the police magistrates of the metropolis. On the 7th March, 1894, the appellants summoned the respondent for having committed an offence under the 85th section of (a) Reported by T. R. BRIDGWATER, Esq., Barrister-at-Law. the Metropolis Management Amendment Act, 1862 (25 & 26 Vict. c. 102), by unlawfully erecting a building on the south side of Kensington Court, being a new street of a less width than fifty feet, exceeding in height the distance from the external wall or front of such building to the opposite side of such street, without the consent in writing of the London County Council, and having continued the offence by constructing the building, and by permitting and suffering the building to continue erected above the height without such consent, after notice from the County Council, contrary to 25 & 26 Vict. c. 102, sect. 85, and 51 & 52 Vict. c. 41. On the hearing it was proved or admitted that the building had been erected for the respondent as owner, and under his directions, and had been carried above the height specified in sect. 85 of 25 & 26 Vict. c. 102, under his directions, and after notice from the appellants to the builders that proceedings would be taken if such height were exceeded, which notice was brought by them to the knowledge of the respondent, and the respondent thereupon communicated with the appellants by letter, and informed them that he was the owner of the building, and that Messrs. Lawrence and Sons were employed by him to erect it, and that they had given up possession of the building on the 8th Feb. 1893, and that the respondent on the date in the summons mentioned was and still continued in possession of the building as owner thereof. It was also admitted that the building still remained above the specified height. On the 7th Sept. 1893, the present respondent Robert J. Worley, the owner of the building, applied to the appellants, the London County Council, to give their consent nunc pro tunc to the erection of the building beyond the height specified in the statute, and on the 16th Oct. 1893, the appellants refused to give such consent, and gave notice thereof to the respondent. It was also proved or admitted that a penal notice had been served on the respondent by the appellants on the 23rd Dec. 1893, requiring him to comply with the requirements of the law in respect of the building subject to the penalty and continuing penalties provided in the statute 25 & 26 Vict. c. 102, sect. 85; and that a similar notice had been served on the builders, Messrs. Lawrence and Sons, on the 7th Oct. 1892, which had been brought immediately to the notice of the respondent. It was contended on behalf of the respondent that he was not liable to any penalty for the continuing offence, and that he was not liable to the penalty for the original offence because proceedings had not been taken against him within six months of the commission or discovery of such offence, and in support of this contention sect. 107 of 25 & 26 Vict. c. 102, and sect. 11 of 11 & 12 Vict. c. 43, were referred to. It was contended on behalf of the appellant that the limitation of time within which proceedings could be taken did not apply in the case of a continuing offence, that the respondent had in fact committed the original offence, and that he was liable to the continuing penalties for continuing the offence after the penal notice served on him on the 23rd Dec. 1893. The magistrate held that sect. 107 of 25 & 26 Vict. c. 102, and sect. 11 of 11 & 12 Vict. c. 43, applied, and that the summons was out of time. LONDON COUNTY COUNCIL v. WORLEY. 1894. The question for the opinion of the court was, whether the Practicedetermination of the magistrate was right in point of law. Sect. 85 of the Metropolis Management Amendment Act, 1862 (25 & 26 Vict. c. 102), provides that: Summary procedureRecovery of penaltiesSix months' limitationContinuing offence-Height of buildings No building except a church or chapel shall be erected on the side of any new street of a less width than fifty feet, which shall exceed in height the distance from the external wall or front of such building to the opposite side of such street, without the consent in writing of the Metropolitan Board of Works (now by 51 & 52 Vict. c. 41, the London County Council); nor shall the height of any building so erected be at any time subsequently increased so as to exceed such distance without such consent; Metropolis and in determining the height of such building the measurement shall be taken from Management the level of the centre of the street immediately opposite the building up to the parapet Act, 1862or eaves of such building; and every person committing any offence under this enact- 25 & 26 Vict. ment shall be liable to a penalty of 51, and in case of a continuing offence to a further c. 102, ss. 85, penalty of 40s. for every day during which such offence shall continue after notice from the said board (now county council), to be recovered by summary proceedings. Sect. 107 provides that: No person shall be liable for the payment of any penalty or forfeiture under the recited Acts, or this Act, or any bye-law made by virtue thereof, for any offence made cognisable before a justice unless the complaint respecting such offence has been made before such justice within six months next after the commission or discovery of such offence. Sect. 11 of the Summary Jurisdiction Act, 1848 (11 & 12 Vict. c. 43), provides that: In all cases where no time is already or shall hereafter be specially limited for making any such complaint or laying any such information in the Act or Acts of Parliament relating to each particular case, such complaint shall be made and such information shall be laid within six calendar months from the time when the matter of such complaint or information respectively arose. Poland, Q.C. and Avory for the appellants.-The appellants were entitled to serve upon the respondent a notice in conformity with the statute that he would be liable for continuing penalties unless the building in question is erected in conformity with the statute, and not having complied with this provision of the statute, is liable for these penalties, although a conviction was obtained against the builders of the building, and not against the respondent the owner. Complaint had been made before a magistrate within six months after the commission of the offence, in compliance with sect. 107 of the statute; the continuing offence by the owner runs from the time the respondent had notice from the appellants. They cited London County Council v. Lawrence [69 L. T. Rep. 344; (1893) 2 Q. B. 228), which was a decision upon a summons against the builders of the structure in question: Wallen v. Lister, 70 L. T. Rep. 348; (1894) 1 Q. B. 312; Rumball (app.) v. Schmidt (resp.), 46 L. T. Rep. 661; 8 Q. B. Div. 603; Metropolitan Board of Works v. 107. LONDON COUNTY COUNCIL v. WORLEY. 1894. procedure limitationContinuing offenceHeight of buildingsMetropolis Anthony, 54 L. J. 39, M. C.; Reg. v. Catholic Life and Fire Dickens, Q.C. and C. F. Lloyd.-The respondent is not liable for a continuing offence; he has not been convicted of the Practice original offence, and therefore it cannot be said that proceedings Summary have been taken against him within six months of the comRecovery of mission or discovery of the offence according to sect. 107 of the penalties statute. If the statute does not create the limitation, the appelSix months' lants might come down year after year upon a bonâ fide purchaser, and serve him with notice of a continuing offence. Proceedings should have been instituted within six months of the commission or discovery of the offence, and when once the appellants have proceeded against and obtained a conviction against the owner Management of the building for his original offence, the owner becomes liable Act, 1862 to pay continuing penalties if he does not comply with the 25 & 26 Vict. terms of the statute. The respondent never has been convicted .. 102, ss. 85, 107. of the original offence, and therefore cannot be proceeded against for penalties for a continuing offence. That these proceedings should have been instituted against the respondent within six months of the commission of the offence seems to be more clearly shown by sect. 11 of 11 & 12 Vict. c. 43 (Jervis' Act), which is a similar section to sect. 107 of the present Act, and which provides that where no time is mentioned for making a complaint such complaint shall be made, and the section goes on to say, "and the information shall be laid within six months from the time when the matter arose; here there was no information laid against the respondent within that time. Poland, Q.C. in reply. MATHEW, J.—I have very little doubt that the respondent is liable to pay continuing penalties. The offence with which he is charged is for continuing to keep erected a building which has been erected contrary to sect. 85 of the Metropolis Management Act, 1862 (25 & 26 Vict. c. 102.) That section after stating what shall be the limit to the height of certain buildings, unless the consent of the appellants be obtained, goes on to say that "every person committing any offence under this enactment shall be liable to a penalty of 51., and in case of a continuing offence, be liable to a further penalty of 40s. for every day during which such offence shall continue after notice" from the appellants. There are, therefore, two offences contemplated by what I have just read, a committing the offence, and continuing to commit the offence, and sect. 107 of the Act then says that no person shall be liable for penalties under the Act, or for any offence cognisable before a justice, "unless the complaint respecting such offence has been made before a justice within six months next after the commission or discovery of such offence." This only means that the local authority shall not proceed for a penalty for an offence which shall not have been LONDON COUNTY v. WORLEY. 1894. committed within six months of the date of the summons. This is the only limitation put upon the local authorities. If some limitation was not put, all that the builder, or the owner, or whoever might be proceeded against, would have to do (according to what has been contended on behalf of the respondent) would be to sell the building to someone else, and to get out of the Act altogether. The Act itself does not prevent this Practicebeing done, but the Legislature contemplated the appellants Summary doing their duty promptly. In this case the complaint has been made within six months after the commission or discovery of the offence, and the respondent is now continuing to commit that offence by keeping up the structure in question. I am therefore of opinion that the magistrate was wrong in dismissing this summons, and the case therefore must be remitted to him to be dealt with. KENNEDY, J. Concurred. procedure Recovery of penaltiesSix months' limitationContinuing offenceHeight of buildingsMetropolis Management Act, 1862 Case remitted to the magistrate. 25 & 26 Vict. c. 102, ss. 85, 107. Solicitor for the appellants, Blaxland. QUEEN'S BENCH DIVISION. Monday, Aug. 3, 1894. (Before MATTHEW and KENNEDY, JJ.) HUFFAM (app.) v. NORTH STAFFORDSHIRE RAILWAY COMPANY (resps.) (a) Bye-laws Imposition of penalties - Invalidity of bye-lawPassenger travelling with a ticket on the day on which ticket was not available-Offence created where no intention to defraud -Railway companies' powers-Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), ss. 103, 104, 108, and 109Regulation of Railways Act, 1889 (52 & 53 Vict. c. 57), s. 5 (3). The bye-law of a railway company provided that, "any passenger using, or attempting to use, a ticket on any day for which such ticket is not available, or using a ticket which has been already used on a previous journey, is hereby subjected to a penalty not exceeding forty shillings." (a) Reported by T. R. BRIDGWATER, Esq., Barrister-at-Law. |