Buchanan v Thomas

• Jurisdiction: Saint Kitts and Nevis
• Court: High Court (Saint Kitts and Nevis)
• Judge: Glasgow, J.
• Judgment Date: 28 July 1972
• Neutral Citation: KN 1972 HC 14
• Docket Number: No. 33 of 1971
• Date: 28 July 1972

High Court

Glasgow J.

No. 33 of 1971

Buchanan

and

Thomas

H.M. Squires for plaintiff.

F.C. Adams for defendant.

Administration law - Building Ordinance, Cap. 284, s. 3 — Declaration of injunction.

Facts: The clerk of the Basseterre Building Board sought a declaration that the plaintiff was entitled to pull down the structural addition being erected to the first floor of the defendant's dwelling house for infringing the Building Ordinance.

Held: That the defendant had infringed the six—foot rule specified under section 3 of the Building Ordinance cap. 284. Order made that the defendant demolish the structure and be restrained from re—erecting any other structure in the same place.

Glasgow, J.

1 This is an action by the Clerk of the Basseterre Building Board for — -

• (1) A declaration that the plaintiff is entitled to pull down or remove the structural addition now being erected to the First Floor of the defendant's dwelling house situate at Buckley's Site, Basseterre, and which erection is in contravention of the Building Act of the Laws of the State,

• (2) An. injunction to restrain the defendant, his servants and agents from continuing the aforesaid structural erection to the defendant's premises at Buckley's Site aforesaid.

• (3) A mandatory order that the defendant do pull down or demolish so much of the concrete block addition now being made to the first floor of the said defendant's premises at Buckley's Site aforesaid.

2 The Basseterre Building Board was appointed by the Governor under section 4 of the Building Ordinance (Cap. 284). Under section 3 of the said Ordinance it is provided that the Administrator in Council may from time to time by proclamation published in the Gazette appoint the places or areas within the Colony to which the Ordinance and the regulations made there under shall apply. By Proclamation dated 6 ^th October 1954 and duly published in the Gazette, the said Ordinance and the regulations made there under were made to apply inter alia, to all places and areas in or within one mile of the town of Basseterre. Section 13 of the said Ordinance empowers the Clerk of the Board to enter and prosecute all suits at law brought by the board.

3 The plaintiff's writ of summons, accompanied by a statement of claim, was served on the defendant on the 7 ^th July 1971. An appearance was entered on behalf of the defendant by Messrs Adams Walwyn and Brookes, Solicitors, on the 13 ^th July 1971. No defence was served to the Plaintiff's Statement of Claim. On the 9 ^th February 1972 the plaintiff applied to the Court by motion for judgment. On the hearing of the application on the 25 ^th July 1972 the plaintiff called three witnesses in support of the allegations contained in his Statement of Claim.

4 Paragraphs 2, 3, 4, 5 and 6 of the Statement of Claim read as follows-

• “2. The defendant is the owner of a building lot at Buckley's Site, Basseterre which is within the jurisdiction and control of the aforesaid Board for the purpose of determining and the granting of approval of the erection, alteration, addition and otherwise of building on lots therein.

• 3. The defendant commenced the erection of a concrete block addition to the First Floor of his said building without first obtaining the necessary approval of the Board.

• 4. As soon as the defendant commenced construction the plaintiff and also the Chairman of the: Board aforesaid visited the defendant's premises and instructed the defendant to cease operations and make formal application to the Board. The defendant accordingly ceased construction and subsequently made formal application to the Board.

• 5. The Board met and considered the defendant's application and refused the application which refusal was communicated to the defendant by letter dated 28 ^th December 1970.

• 6. Notwithstanding the Board's refusal borne by the afore-mentioned communication the defendant continues the construction in contravention of the aforesaid Laws and the authority of the said Building Board.”

5 The facts disclosed by the witnesses' evidence are as follows: The defendant is and was at all material times the owner of a dwelling house numbered 58 situate at Buckley's Site in the town of Basseterre in the Island of Saint Christopher.

6 The defendant also owns the lot of land — No. 31 — on which his said dwelling house stands. The said dwelling house is a two-story building. It faces the East and is a short distance from a street, which runs North to South. Attached to the northern side of the defendant's said dwelling house and occupying the full length of the dwelling house is a flat roofed structure built of concrete. The eastern portion of this structure is used as a garage. This structure is about eight feet in height from the ground. I will hereinafter refer to this structure as the garage. The northern side of the garage is also the site boundary of the defendant's said dwelling house on its northern side.

7 In February 1970 Richard Joseph, who was then acting Clerk of the Basseterre Building Board, visited the defendant's said premises at Buckley's Site. With the defendant's permission Mr. Joseph inspected the Defendant's premises. He noticed that form work was being, erected on the northern part of the Defendant's dwelling house between the said house and its site boundary. Mr. Joseph asked the defendant for his permit to build. The defendant could not produce one. Mr. Joseph told the defendant to stop building and to submit a plan to the Building Board. The defendant said that he would try.

8 On the 10 ^th December 1970 the plaintiff received certain information. As a result he visited the defendant's said premises at Buckley's Site where he saw what he described as a room being built in concrete blocks on top of the garage. The northern side of the room was about eight inches within the site boundary of...