c.ccxiii.

57 & 58 Vict. inapplicable to proceedings for the recovery of penalties in the case of a continuing offence. See Rumball v. Schmidt, 8 Q. B. D. 603; 46 L. T. (N.S.) 661; 30 W. R. 939; 46 J. P. 567, and Higgins v. Northwich, 22 L. T. (N.S.) 752; 34 J. P. 806.

S. 23.

Buildings projecting beyond general line

down to be set back.

Land occupied by building or structure. So far as the provisions of subsect. 2 apply to any building or structure erected upon land lawfully occupied by a building or structure at the commencement of the Act, they are subject to the provisions of the following section, enabling the London County Council to require buildings erected upon such land to be set back as therein provided. Where, however, a building or structure has been taken down to the extent mentioned in that section, or destroyed or removed to such extent previously to the commencement of the Act, but within seven years previously, the re-erection of such building or structure would appear not to be subject to the restrictions imposed by sect. 23, infra.

23. (1) In case any building or structure which shall in any part thereof project beyond the general line of buildings in a street or beyond the front of the buildwhen taken ing wall or railing on either side thereof shall at any time be taken down to an extent exceeding one-half of the cubical extent of such building or structure or shall be destroyed by fire or other casualty or demolished pulled down or removed from any other cause to the extent aforesaid it shall be lawful for the Council to require the same building or structure or any new building or structure proposed to be erected on the site or any part of the site thereof to be set back to such a line and in such a manner as the Council shall direct.

(2) The Council shall make compensation to the owner of such building for any damage and expenses which he may sustain and incur thereby and the amount of such compensation if not agreed between the Council and the parties concerned shall be recovered in a summary manner except where the amount of compensation claimed exceeds fifty pounds in which case the amount thereof shall be settled by arbitration according to the provisions contained in the Lands Clauses Acts which are applicable where questions of disputed compensation are authorised or required to be settled by arbitration and for that purpose those Acts so far as applicable shall be deemed to be incorporated with this Act For the purpose of this section the expression 'owner' has the same meaning as in the Lands Clauses Acts.

Building or structure.-With regard to these terms see the corresponding note to sect. 22, ante, p. 77, and also see the

note under the heading 'alteration of existing buildings' to 57 & 58 Vict. sect. 13, ante, p. 65.

'On either side.'-In ascertaining whether a building, &c., does project beyond the front of the building, &c., 'on either side thereof,' only buildings within some degree of proximity must be considered. For in a case under the Public Health (Buildings in Streets) Act, 1888 (51 and 52 Vict. c. 52), by sect. 3 of which the erection or bringing forward of a house or building in a street beyond the front main wall of the house or building on either side thereof, is prohibited, Fry, L. J., and Matthew, J., held that a house 300 or 400 feet from another was not on either side of it within the meaning of the enactment. Ravensthorpe Local Board v. Hinchcliffe, 24 Q. B. D. 168; 59 L. J. M. C. 183; 61 L. T. (N.S.) 780; 54 J. P. 421.

In the case of Warren v. Mustard, ante, p. 8o, Matthew and Smith, JJ., considered that magistrates were right in finding that cottages 64 feet distant from a building were on one side of it, but in Attorney-General v. Edwards (1891), 1 Ch. 194; 63 L. T. (N.S.) 639, Romer, J., thought that a building 57 feet distant from another and separated from it by a private road and a garden, could not be said to be on the side of that other building. It will be observed that in sect. 24 the Superintending Architect is required to give notice of his certificate defining the general line of buildings to the owners of houses in the same block or row, and within a distance not exceeding 50 feet on either side of the building to which the certificate relates. This provision may serve as a guide in ascertaining whether buildings are or are not to be taken into consideration in determining a question under this section.

Power of Council to cause buildings to be set back.—A power similar to that given by subsect. I of the present section was contained in sect. 74 of the Metropolis Management Amendment Act, 1862; it was only exercisable where a building had been taken down or demolished to an extent exceeding one-half of such building.

The powers of the County Council are therefore increased by the present section.

With regard to the removal of the lower portion of a building without disturbing the upper portion, see The AttorneyGeneral v. Hatch, ante, p. 68.

Compensation. With regard to the assessment and recovery of compensation payable under the Act, see the note to sect. 15, ante, p. 71.

Owner. By sect. 3 of the Lands Clauses Consolidation Act, 1845 (8 Vict. c. 18), it is enacted that 'owner shall be understood to mean any person or corporation who, under the provisions of this or the Special Act, would be enabled to sell and convey lands to the promoters of the undertaking.' See also the definition of the term 'owner' in sect. 5 (29), ante, p. 25.

c. ccxiii. s. 23.

57 & 58 Vict. c. ccxiii.

SS. 24, 25.

Notices of

definition of general line.

Appeal

against certificate of

architect as to general

line.

24. The Superintending Architect shall within fourteen days after the issue of the certificate defining the general line of buildings in any street or part of a street place or row of houses cause a notice of his certificate to be served on the local authority and on the owner of the building or land to which the certificate relates and on the owner of the houses in the same block or row within a distance not exceeding fifty yards on either side of the building or land to which the certificate relates or where there is no such block or row upon the owner of the adjoining land on either side of the building or land to which the certificate relates Certificates made by the Superintending Architect under this Part of this Act shall be preserved by the Council and be open to inspection at all reasonable times by all persons desiring to inspect the same.

Superintending Architect.--This officer is appointed by the London County Council under sect. 136, post, p. 228. He is empowered by sect. 137 to appoint in certain cases a deputy to perform any duties which he may be temporarily prevented from executing.

Notice of certificate.-Both the notice and certificate are to be in writing, and will be sufficiently authenticated if signed by the Superintending Architect, see sect. 187, post.

Service of notice.-As to the service of notices see sect. 188, post.

Local authority. This term is defined by sect. 5 (42), ante, p. 39.

Owner. With regard to this term, see sect. 5 (29), ante, p. 25, and the notes thereon.

Appeal. The certificate, notice of which is given under this section, may be appealed against under the following section.

new.

Preservation and inspection of certificates.-This provision is Under sect. 28, post, the Council is, in addition, to keep a register of all conditional consents given by it under sect. 26, infra, open for inspection.

25. The local authority or any person deeming him- / self aggrieved by the certificate of the Superintending Architect may appeal to the tribunal of appeal.

Person deeming himself aggrieved.-With regard to the expression 'party aggrieved,' where used in a section of an Act of Parliament, giving such a party a right to commence proceedings for penalties for the infringement of any of the provisions of the Act, Bramwell, L.J., said in Robinson v. Currey, 7 Q. B. D. 465; 50 L. J. Q. B. 561; 45 L. T. (N.S.) 368; 30 W. R. 39; 46 J. P. 148: 'A party grieved is not brought into

existence by the statute which gives him a penalty; he is a 57 & 58 Vict. person who is supposed to exist, and the statute is passed on c. ccxiii. account of his grievance, and the action for penalty is given s. 26. to him. There may be cases in which the statute states that A. B. shall be deemed a party grieved; but a party grieved is a person who exists, and on account of his existence and his grievance the statute gives him a remedy.'

Tribunal of Appeal. This tribunal is constituted under sect. 175 et seq., post, pp. 269-273, and has jurisdiction under sect. 183, which section enables it to make rules of procedure, to confirm, reverse, or vary the decision of the Superintending Architect, and make such order as it may think fit.

Appeal. The regulations as to the procedure to be followed in cases of appeal to the Appellate Tribunal will be found in Appendix III., post. These regulations require appeals to be lodged at the office of the Tribunal within fourteen days after notice of the certificate, and also require notice of the appeal to be given within such period to the Council, and where the original applicant is not the appellant to such applicant, and also to the Superintending Architect, and to all other persons entitled under sect. 24, ante, to notice of the Superintending Architect's certificate.

26. In giving their consent for the erection of any Conditions building or structure beyond the general line of buildings in any street or part of a street place or row of houses the Council may attach any conditions to such consent and such conditions may include any or all of the conditions following, viz. :

(1) That land in front of the building or structure to such an extent as the Council may think proper shall be dedicated to and left open for the use of the public:

(2) That the building or structure shall be used only for such purposes as may be specified in the consent or shall not be used for any particular purposes specified in the consent unless with the further consent of the Council obtained when a change of purpose is desired:

And generally any other condition which the Council may deem it expedient to impose in the public interest.

Conditions to erections beyond general line of buildings.-This section removes the doubt which existed as to the power of the Council to enforce compliance with certain conditions often attached by it to consents to erect buildings in front of the general line of buildings. By sect. 9 of the Metropolitan Building (Amendment) Act, 1882, the Council had power to annex to such consent conditions as to the amount of land in front of any such building to be dedicated to, or left open for, the

may be attached to building in front of

consent to

general line.

57 & 58 Vict. c. ccxiii.

Ss. 27, 28.

Consent not

to affect rest of general line.

Register of conditional consents to be kept and open for

inspection.

use of the public. The Council constantly, however, in consenting to such erection, made various other stipulations, but had no statutory authority for so doing.

A register of all consents given under this section is to be kept by the Council for inspection by all persons interested. See sect. 28, infra.

Under sect. 190, post, p. 276, power is also given to the Council, in any case where it is authorised to refuse its consent to the doing of any act, to give, instead of refusing, such consent subject to such terms and conditions as it may think fit. Any term or condition imposed under sect. 190 will, if accepted, be binding on the owner and occupier of the building or structure or ground to which the consent relates, and the nonobservance or non-fulfilment of any term or condition so imposed will subject the owner or occupier in default to a penalty.

Penalty. The penalty for erecting or bringing forward any building or structure in contravention of any of the provisions of this Part of the Act, or of any conditions attached to a consent given by the Council under such provisions, is prescribed by sect. 200 (3), post, p. 284. See also subsect. 10 of sect. 200, which prescribes the penalty for not complying with any term or condition imposed under sect. 190

With regard to the recovery of penalties, see sect. 166, post.

27. The consent by the Council to the erection of any building or structure beyond the general line of buildings in any part of a street or the erection of such building or structure shall not be deemed to affect or alter in that or any other part of the street the general line of buildings as existing at the time of such consent.

'Line of buildings existing at time of consent.'-Under the previous Acts it was possible for the erection of buildings in advance of the general line of buildings existing at the time of the giving of the consent to such erections, to create in course of time a general line of buildings different from such firstmentioned line. The present section appears to be intended to prevent this possibility taking place, by preventing any building or structure, which has been erected with the consent of the Council in advance of the general line of buildings in any part of a street, from being taken into consideration in defining at any subsequent time the general line of buildings in such part or in any other part of the street.

28. The Council shall keep a register of all conditional consents given by them under this Part of this Act and shall keep the same open for inspection by all persons interested at all reasonable times.

'Reasonable times.'-See the note to sect. 18, ante, p. 75.