SCOTT v. CARRITT.

in which the said buildings were situate (such certificate and the plan annexed thereto accompany this case marked A.), and it was admitted that the proposed buildings would be in advance of the said general line, as certified.

6. On the 6th of January, 1899, the appellant served on the district surveyor (the respondent) a building notice (copy annexed bereto marked B.), and on the 10th of February, 1899, the respondent served a notice of objection to such buildings under section 150 of the said Act.

7. The old buildings on the site of 180 and 182, Pentonville-road, consisted of the premises between Winchester-street and Southamptonstreet, and consist of three-storey houses with forecourts in front of them abutting on Pentonville-road, and built 50 feet back from the road. The said forecourts had been occupied by shops of one storey as to No. 180, since 1858, and as to No. 182, since 1877. The forecourt in front of No. 182, and also of the adjoining house, No. 184, had been so built over and occupied under license or consents from the Metropolitan Board of Works dated the 21st of August, 1876, and 6th of October, 1877. The forecourts in front of No. 180, and of all the houses other than Nos. 182 and 184, between Winchesterstreet and Southampton-street, had been so built over and occupied without any consent or license. The plan hereunto annexed marked F., showing the old buildings and the proposed new buildings, is to be taken as part of this case.

8. There had been no certificate defining the general line of buildings in that part of Pentonville-road between Winchester-street and Southampton-street prior to the aforesaid certificate of the superintending architect, dated the 30th of November, 1898.

9. It was contended by the appellant that he intended to erect a domestic building on the site of domestic buildings existing at the commencement of the Act aforesaid, and that the London County Council upon his compliance with section 43 were bound to certify under sub-section (2) of that section, and further that sub-section (2) of section 22 applied, inasmuch as the land was lawfully occupied with buildings or structures within the meaning of section 22 (2), and that, therefore, the superintending architect had no power to certify the said building

63 J. P. 772.

line as aforesaid, and that such certificates afforded no objection in law to the appellants' rights under section 43 (10). It was contended by the respondent that by the joint effect of the Marylebone Improvement Act, 1756, and the Act 7 Geo. 4, c. cxlii., which prohibited the erection of any buildings within 50 feet of the side of the said Pentonvilleroad, and section 75 of the Metropolis Management Act, 1862, the land forming the forecourts of the said old buildings was not at the commencement of the London Building Act, 1894, and had not been within seven years previously, lawfully occupied by a building or structure within the meaning of sub-section (2) of section 22 of the said Act, that the building on the forecourt of No. 180 was without any license or consent, and was illegal, and that the building on the forecourt of No. 182 was under a consent which was subject to a condition that the said building should not be at any time altered or raised without the consent of the Metropolitan Board of Works, and that by virtue of section 216 of the said London Building Act, 1894, such condition was still binding on the appellant, and that section 43 related only to open spaces at the rear of buildings, and had no application to this case.

10. I held that the respondent's contention was well founded, and that the London County Council was entitled to refuse to consider the application by the appellant to approve the plans and deviation submitted to them, as heretofore stated, on the grounds

(1) That section 43 did not apply at all. (2) That the land was not lawfully occupied

within the meaning of sub-section (2) of section 22, and that the appellant was not entitled to erect either of these new buildings beyond the general line of buildings, as defined by the certificates of the superintending architect, to the height of three storeys above the ground floor as proposed. I therefore dismissed the appeal without costs, and affirmed the objection of the district surveyor. If I was right in so holding, the appeal is to stand dismissed. If I was wrong in so holding, the appeal is to be allowed, or the case remitted to me with the opinion of the court thereon.

HORACE SMITH.

SCOTT v. CARRITT.

The London Building Act, 1894 (57 & 58 Vict. c. ccxiii.), provides :—

Section 22.-"(1) No building or structure shall, without the consent in writing of the council, be erected beyond the general line of buildings in any street or part of a street, place, or row of houses in which the same is situate in case the distance of such line of buildings from the highway does not exceed 50 feet, or within 50 feet of the highway when the distance of the line of buildings therefrom amounts to or exceeds 50 feet, notwithstanding there being gardens or vacant spaces between the line of buildings and the highway. Such general line of buildings shall if required be defined by the superintending architect by a certificate, &c.

66

(2) This section shall not apply to any building or structure erected after the commencement of this Act upon land which, either at the commencement of this Act or at any time within seven years previously, has or shall have been lawfully occupied by a building or structure."

Macmorran, Q.C. (Germaine with him), for the appellant.-The question arises under section 22 (2) of the London Building Act, 1894. Had the land on which these onestorey shops were built either at the commencement of that Act or at any time within seven years previously "been lawfully occupied by a building or structure"? If it had, then the exception in the Act applies, and the buildings are not subject to the first sub-section of that section as to the erection of buildings beyond the building line. The case is slightly different as regards the two houses. When the shop in front of No. 180 was built the Act of 7 Geo. 4, c. cxlii. was in force, which provided that no building whatsoever should be erected on this road on any new foundation within 50 feet from the side of the road. This building was then in contravention of this Act. The statute, however, was repealed by section 75 of the Metropolis Management Act, 1862 (25 & 26 Vict. c. 102), and section 75 substituted for it. Section 75 provided that no new building, structure, or erection should, without the consent of the Metropolitan Board of Works, be erected beyond the general line of building or within 50 feet of the highway if the building line exceeded that distance. The position then was that the old prohibition contained in 7 Geo. 4, c. cxlii. was repealed, and the new section

63 J. P. 772.

did not apply to buildings or structures already erected. So the effect is that the building lawfully occupies the ground. The shop in front of No. 182 was erected in 1877, with the necessary consent of the Metropolitan Board of Works, under section 75 of the Metropolis Management Act, 1862. That shop was lawfully there from the beginning. Then section 75 of the Act of 1862 was repealed by the London Building Act, 1894, and under it the appellant proposes to build a house on the site which is already occupied by a structure lawfully there. The test is that no one could have removed them as unlawful structures, and the case comes within the exception in section 22 (2).

H. Avory, for the respondent.-It is admitted now that section 43 has no application in this case, as the magistrate has found, so that the case is governed by section 22 (2). The question is, Is the land so lawfully occupied by those one-storey shops that the appellant can build up to any height he pleases not exceeding 80 feet? As to the shop in front of No. 180, there can be no such right, as the shop was originally unlawfully put there, and nothing has occurred to legalise it. The mere fact of the repeal of the statute forbidding it does not make it lawful; section 75 of the Act of 1862 merely substitutes the provision that buildings can be so erected with the consent of the Metropolitan Board of Works, it does not make things unlawfully done before lawful. There must be express words to render it lawful. Sections 22 & 23 of the Act of 1894 must be read together, and they would have been contradictory if it were not for the exception contained in section 22 (2). As to the shop in front of No. 182, the land was in one sense lawfully occupied by it, but it was a qualified occupation. The condition was that the building was to remain a onestoried shop. It was not a right as contended for by the appellant to occupy the ground with a three-storied building. That is the magistrate's finding, and he is right.

Macmorran, Q.C., in reply.

RIDLEY, J.-There are two houses in question here, namely, Nos. 180 and 182 Pentonville-road. With regard to No. 180, the shop in front was put up in the year 1858, without any license at all, and the question now arises upon the provisions of section 22 of the London Building Act, 1894, whether the land on which that shop stood was lawfully occupied by that building.

SCOTT v. CARRITT.

The same question arises as to the shop in front of No. 182, with this difference, that that shop was put up with the license of the Metropolitan Board of Works, such license being qualified by the condition that the building should not be raised or altered in any manner without the approval of the Metropolitan Board of Works first had and obtained. We have now to consider whether, under these circumstances, the finding of the magistrate was right, in which he found that the land on which these shops stood was not lawfully occupied within the meaning of sub-section (2) of section 22 of the London Building Act, 1894, so as to entitle the appellant to erect the proposed new buildings beyond the general building line as defined by the superintending architect. The proposal seems to have been to pull down the buildings standing on this ground and to erect in their place another building three storeys high. At the time when the first shop was built, in 1858, the statutory provision in force was section 140 of 7 Geo. 4, c. cxlii., which prohibited the erection of any building within 50 feet of this road. This section was repealed by the Metropolis Management Act, 1862, and section 75 of that Act was substituted for it, and under that section the license of the Metropolitan Board of Works was required. The second shop was put up under this provision, and the license of the Metropolitan Board of Works was duly obtained, but subject to the condition that the building should not be raised without their approval. Section 75 of the Act of 1862 was repealed by the London Building Act, 1894, and section 22 of the latter Act was substituted, and it is upon the construction of section 22 that the present question depends. Now sections 22 and 23 of the London Building Act are, no doubt, as contended by Mr. Avory, to be read together. The general enactment contained in section 22 is that the superintending architect should set out the general line of buildings, and that no building or structure should, without the consent in writing of the council, be erected beyond that line in any particular street. Therefore we have it that the general line of building is to be set out if required by the superintending architect, and no building is to be erected beyond it. Then comes sub-section (2), which contains an exception in favour of any building or structure to be erected upon land

63 J. P. 772. which at the passing of the Act, or at any time within seven years previously, was lawfully occupied by a building or structure. Therefore that sub-section excepts from the enactment in sub-section (1), not as to the architect's general building line, but as to the provision that no building shall be erected beyond it, those buildings which are erected on land on which other buildings have previously stood. It does not make an exception to the architect's jurisdiction. The architect is to decide the general building line. The section does not say that no building is to stand beyond it, but it says that no building shall stand beyond it except those which stand on land previously occupied by a building or structure. The condition of things is this-the general building line is set out. That line must be followed by all persons intending to build in the future, but there is recognised by the Legislature the exception of buildings already lawfully there. As to those, the council have not the power of pulling them down and setting them back to the general line of buildings, except in the case provided for by section 23. When that section comes into operation with regard to any building it has this effect-that if any person treats his old building which has been lawfully there in such a way as to show that he no longer requires the protection given to him by section 22 (2), that is to say, if he demolishes it and pulls it down to an extent exceeding half its cubical contents, or if by some accident, such as fire or other casualty, it should be destroyed, then the new building put up in its place must be made to conform to the general line laid down by the architect. One can see how the Legislature dealt on the one hand with the desirable object of making the line of the street fall within the jurisdiction of the architect appointed by the county council, and on the other hand with the rights of people who have buildings there which were already lawfully there. They gave no power at the moment of disturbing such building, but if in the future, by any act of the owner or by any calamity, the building was demolished, no building was to be erected except within the building line. Let me now apply that interpretation of the statute to the facts of this case. As to the shop in front of No. 180, I admit that the question is somewhat of a doubtful character after the repeal of the Act which prohibited

SCOTT v. CARRITT.

the erection within a certain distance from the road. I think, however, on the whole, without giving any general opinion as to the effect of repealing a statute, that in such a case as the present the land was lawfully occupied by the building as soon as the prohibition against its being there was removed. Section 140 of the former Act of 7 Geo. 4, which contained the prohibition, was repealed by the Act of 1862, which required the license, and this repealing Act of 1862 only prohibited the erection or raising of structures in the future. I think that as soon as that new state of the law came into operation it may fairly and rightly be said that the land in front of No. 180 became lawfully occupied by this building. There was no law which could be put into operation against it, and, therefore, the land was in that sense lawfully occupied by the building. It is true that there was this unlawful about it-that at the beginning it was put up in contravention of the statute, but the sub-section in question says, "shall have been lawfully occupied." I think it was lawfully occupied, and whether its beginning was lawful or whether it was originally put up in contravention of the Act is another question. The same I think is clearly the case with regard to the shop in front of No. 182. I think they were both lawfully occupied, but it does not, therefore, follow that the decision of the magistrate was wrong, because I think that what the magistrate really found was that the land was not lawfully occupied by these buildings within the meaning of the sub-section, SO as to entitle the appellant to raise them ; but I do not think that he intended to find that the land was not lawfully occupied for other purposes. He has in effect said to the appellant, "You cannot put up new buildings on this land without the consent of the county council, and in putting up these new buildings you must conform to the general line as laid down by the architect." We have been told that that was what the magistrate said at the hearing, and that being so, I can read the finding of the magistrate as meaning that the land was not so lawfully occupied as to give the appellant the right to put up these new buildings which he proposed to put up without conforming to the building line. If that was his finding I think it was correct. At the same time I do not not think it would be a proper

63 J. P. 772.

finding to say that the land was not lawfully occupied by either of these buildings. I think the finding of the magistrate was right, and this appeal must, therefore, be dismissed.

DARLING, J.-I have come to the same conclusion. The appellant may be taken to have done what was forbidden by section 140 of the statute 7 Geo. 4. He had put up this shop in front of No. 180 within the prohibited distance of a particular road, and he might have been proceeded against under that statute for what he had unlawfully done. That section was repealed by 25 & 26 Vict. c. 102, and this statute in repealing the section of the former statute provided that this same thing that the appellant had done should not be done except it were consented to on certain terms. He never got or affected to get that consent, nor to comply with the second statute. He is therefore in the position of a person who has complied with another statute, but he has not legalised his position by the means pointed out in the second statute. He has not legalised his position under the first statute unless he can be said to have done it by the mere fact that the statute which forbade him to do this thing was repealed. The repealing statute of 1862 did not profess to legalise what had been done. It said that people should not do the very same things except on certain conditions. I do not think that the statute of 1862 intended to render the position of the appellant, which had been unlawful, lawful; and I do not think that it did render it lawful. It incautiously took away the means of proceeding against him for the unlawful act which he had committed and it gave no fresh means, but I do not think that it went further than that. The appellant was in this position-that so long as he was content to remain quiet there was no means of proceeding against him, but there comes a time when he was not quiet. He wants to build a larger house on this piece of ground, and he wants to do the same with No. 182. As to the building in front of No. 182, it was lawfully occupied, but it was only so on certain conditions. I think his occupation of No. 182 was a lawful occupation, but only in a certain sense. His occupation of the building in front of No. 180 was not lawful at all. It was simply an occupation which was unlawful, the means of punishing having

SCOTT v. CArritt.

been taken away; but as to No. 182, his occupation was unlawful in the sense that, so long as he fulfilled certain conditions which he had agreed with the Metropolitan Board of Works to fulfil, he might occupy; and those conditions enure to the benefit of the county council by section 216 of the London Building Act, 1894. Therefore it is said that his occupation was a lawful occupation, and that he did not come within any of the terms of the Act as to the building line. That is only true in a certain sense. It was a lawful occupation on terms, and the magistrate has said that. The magistrate has found that the land was not lawfully occupied within the meaning of sub-section (2) of section 22. That is a perfectly accurate statement with regard to No. 180. With regard to No. 182, I think it is accurate in this sense, that the land was not lawfully occupied in the sense that the appellant was entitled to erect either of the new buildings beyond the general line of buildings as defined by the certificate of the architect to the height of three storeys. That I think is the finding of the magistrate, which I read as if the word "and" were inserted. He did not simply say that the land was not lawfully occupied within subsection (2) of section 22, but he went on to explain what he meant, and the fact that he has added these subsequent words satisfies me that when he said it was not lawful he meant it was not lawful in the sense that it gave the appellant a right to do what he contended he had a right to do if his occupation was a lawful occupation. I do not think his occupation was lawful at all as to No. 180, and as to No. 182, I think it was lawful on certain conditions, but that it was lawful as to either of them in the sense that he could claim this exemption I do not accept. I think that is what the magistrate meant and that he was right.

Appeal dismissed.

Solicitor for the appellant: H. C. Morris. Solicitor for the respondent: W. A. Blaxland.

November 3.

63 J. P. 775.

LONDON COUNTY COUNCIL v. READ.

Bread-Sale of otherwise than by weight -3 Geo. 4, c. cvi., s. 4.

An inspector in the employment of the appel lants sent a person to the shop of the respondent. The messenger asked for a 2d. loaf, and was served by the respondent with a loaf similar in shape and appear ance to a cottage loaf usually sold at 2d. The loaf was not weighed by anyone in his presence, and nothing was said as to its weight. It was subsequently weighed by the inspector and found to weigh some 2 oz.

less than 2 lb.

Held, that this was a selling of bread contrary to 3 Geo. 4, c. cvi. s. 4.

Case stated by justices in and for the county of London sitting at the Town-hall, Kensington.

Upon the hearing at the Town-hall, Kensington, on the 21st of March, 1899, of a certain summons upon complaint made by Harry Christopher Strugnell, an inspector in the employment of the London County Council (hereinafter called the appellants), against William Read (hereinafter called the respondent) that the respondent on the 15th of March, 1899, did sell or cause to be sold bread in other manner than by weight, contrary to the statute 3 Geo. 4, c. cvi., s. 4, the following facts were proved.

The respondent is a grocer and general dealer carrying on business at a shop No. 202, North-end-road, Fulham.

On the 15th of March, Harry Christopher Strugnell, in the course of his duties as an inspector appointed by the appellants, sent one Alfred Bond to purchase a loaf of bread at that shop.

Alfred Bond thereupon entered the shop and asked for a 2d. loaf. He was accordingly served by the defendant with a loaf for which he paid 2d. The loaf before being handed to him was not weighed by any person in the shop in his presence, nor was any statement made to him as to its weight. There was no evidence given that it ever had been weighed, but the defendant stated (not on oath) that all the bread he sold at 2d. was weighed beforehand. It was subsequently weighed by Harry Christopher Strugnell and found to be 294 oz., i.e., 24 oz. short of a 2 lb. loaf.