(2) With respect to the structure, and description and quality of the substances used in the construction of new buildings for securing stability and the prevention of fires, and for purposes of health :

(3) With respect to the sites of houses, buildings, and other erections, and the mode in which, and the materials with which such foundations and sites shall be made, formed, excavated, filled up, prepared, and completed for securing stability, the prevention of fires, and for purposes of health.

For the purposes of this Act

The term "foundations" shall mean the space immediately beneath the footings of a wall;

The term “site” in relation to a house, building, or other erection shall mean the whole space to be occupied by such house, building, or other erection between the level of the bottom of the foundations and the level of the base of the walls:

(4) With respect to the sufficiency of the space about buildings to secure a free circulation of air, and with respect to the ventilation of buildings:

(5) With respect to the drainage of buildings, to waterclosets, earthclosets, privies, ashpits, and cesspools in connection with buildings, and to the closing of buildings or parts of buildings unfit for human habitation, and to prohibition of their use for such habitation:

And they may further provide for the observance of such byelaws by enacting therein such provisions as they think necessary as to the giving of notices, as to the deposit of plans and sections by persons intending to lay out streets or to construct buildings, as to inspection by the sanitary authority, and as to the power of such authority (subject to the provisions of this Act) to remove, alter, or pull down any work begun or done in contravention of such byelaws: Provided that no byelaw made under this section shall affect any building erected before the passing of this Act. The provisions of this section and the two last preceding sections (sects. 39 and 40) shall not apply to buildings belonging to any railway company and used for the purpose of such railway under any Act of Parliament.

[See sect. 23 of the Public Health Acts Amendment Act, 1890, post, p. 151.]

When sect. 23 of the Public Health Acts Amendment Act, 1890, is in force in the district, sect. 41 of the present Act is amended so as to empower every urban authority to make byelaws with respect to the following matters :

(1) The keeping waterclosets supplied with sufficient water for flushing;

(2) The structure of floors, hearths, and staircases, and the height of rooms intended to be used for human habitation ;

As to the com

mencement of works and re

made contrary

to byelaws.

(3) The paving of yards and open spaces in connection with dwelling-houses; and

(4) The provision in connection with the laying out of new streets, of secondary means of access when necessary for the purpose of the removal of house refuse and other matters.

Moreover any byelaw made under that section as above extended with regard to the drainage of buildings and to waterclosets, earth-closets, privies, ashpits, and cesspools in connection with buildings, and the keeping waterclosets supplied with sufficient water for flushing may be made so as to affect buildings erected before the times mentioned in the said section.

By sub-sect. 4 of the same section every local authority may make byelaws to prevent buildings which have been erected in accordance with byelaws made under the Public Health Acts from being altered in such a way that if at first so constructed they would have contravened the byelaws.

See also sect. 24 of the Public Health Acts Amendment Act, 1907, post, p. 163. Where the latter Act is in force in the district the present section is extended "so as to empower the local authority to make byelaws (1) with respect to the height of chimneys of buildings, and with respect to the height of buildings; and (2) with respect to the structure of chimneyshafts for the furnaces of steam-engines, breweries, distilleries or manufactories," and sect. 42 of the present Act is to be in force in every district in which sect. 24 of the Public Health Acts Amendment Act, 1907, is in force.

Where the same person is responsible for the breach of a street byelaw and the continuance of the offence, he may, in virtue of sect. 42 of our Public Health Act, be convicted, both of a continuing offence and of the original offence, upon an information charging him only with the original offence (Airey v. Smith [1907], 2 K.B. 273). But a builder who had been convicted of building a house contrary to a byelaw was held not guilty of a continuing offence, under the English section corresponding to sect. 42 of our Public Health Act, in allowing it to remain unaltered, when he could not have altered it, without trespassing on land not belonging to him (Welsh v. West Ham Corporation [1900], 1 Q.B. 324).]

42. Where a notice, a plan, or description of any work is required by any byelaw made by a sanitary authority to be laid before that moval of works authority, the sanitary authority shall, within one month after the same has been delivered or sent to their clerk, signify in writing their approval or disapproval of the intended work to the person proposing to execute the same; and if the work is commenced after such notice of disapproval, or before the expiration of such month without such approval, and is in any respect not in conformity with any byelaw of the sanitary authority, the sanitary authority may cause so much of the work as has been executed to be pulled down or removed.

Where a sanitary authority incur expenses in or about the removal of any work executed contrary to any byelaw, such authority may recover in a summary manner the amount of such expenses either from the person executing the works removed or from the person causing the works to be executed, at their discretion.

Where a sanitary authority may under this section pull down or remove any work begun or executed in contravention of any byelaw,

or where the beginning or the execution of the work is an offence in respect whereof the offender is liable in respect of any byelaw to a penalty, the existence of the work during its continuance in such a form and state as to be in contravention of the byelaw shall be deemed to be a continuing offence, but a penalty shall not be incurred in respect thereof after the expiration of one year from the day when the offence was committed or the byelaw was broken.

[See the cases cited under the last section.]

building.

43. For the purposes of this Act the re-erecting of any building what to be pulled down to or below the ground floor, or of any frame building of deemed a new which only the framework is left down to the ground floor, or the conversion into a dwelling-house of any building not originally constructed for human habitation, or the conversion into more than one dwellinghouse of a building originally constructed as one dwelling-house only, shall be considered the erection of a new building; and whenever any old building has been taken down to an extent exceeding one half of such building, such half to be measured in cubic feet, the rebuilding thereof shall be considered the erection of a new building.

[What constitutes a new building is a question of fact for the magistrates (James v. Wyvill, 51 L. T., N.S., 237). See also sect. 23 of the Public Health Acts Amendment Act, 1907, and sect. 32 of the Dublin Corporation Act, 1890. Sect. 23 of Public Health Act, 1907, is as follows:

23. For the purposes of this Act and the Public Health (Ireland) Acts, 1878 to 1900, and any byelaws made thereunder, each of the following operations, namely:

(a) The re-erection, wholly or partially, of any building of which
an outer wall is pulled down or burnt down to or within ten
feet of the surface of the ground adjoining the lowest storey of
the building, and of any frame building so far pulled down or
burnt down as to leave only the framework of the lowest
storey;

(b) The conversion into a dwelling-house of any building not
originally constructed for human habitation, or the conversion
into more than one dwelling-house of a building originally
constructed as one dwelling-house only;

(c) The re-conversion into a dwelling-house of any building which
has been discontinued as or appropriated for any purpose other
than that of a dwelling-house;

(d) The making of any addition to an existing building by raising
any part of the roof, by altering a wall, or making any projec-
tion from the building, but so far as regards the addition
only; and

(e) The roofing or covering over of an open space between walls or
buildings;

shall be deemed to be the erection of a new building.]

Privies, Waterclosets, &c.

44. It shall not be lawful newly to erect any house, or to rebuild any Penalty on house pulled down to or below the ground floor, without sufficient water- without privy

H

building houses

accommodation.

Power of sani

for houses.

closet, earthcloset, or privy accommodation, and an ashpit furnished with proper doors and coverings.

Any person who causes any house to be erected or rebuilt in contravention of this enactment shall be liable to a penalty not exceeding twenty pounds.

[One privy may suffice for two cottages under this section (R. v. Clutton Union, 4 Q.B.D. 340). Cf. Public Health Acts Amendment

Act, 1907, sect. 39, post, p. 168.]

45. If a house within the district of a sanitary authority appears to to enforce privy such authority to be without sufficient watercloset, earthcloset, or privy accommodation accommodation, and a properly constructed ashpit, the sanitary authority shall, by written notice, require the owner or occupier of the house, within a reasonable time therein specified, to provide sufficient watercloset, earthcloset, or privy accommodation, and an ashpit constructed as aforesaid, or either of them, as the case may require.

Privy accommodation for factories.

If such notice is not complied with, the sanitary authority may, at the expiration of the time specified in the notice, do the work thereby required to be done, and may recover in a summary manner from the owner the expenses incurred by them in so doing, or may by order declare the same to be private improvement expenses: Provided that where a watercloset, earthcloset, or privy has been and is used in common by the inmates of two or more houses, or if in the opinion of the sanitary authority a watercloset, earthcloset, or privy may be so used, they need not require the same to be provided for each house.

[In enforcing these expenses the function of the justices is ministerial. They cannot entertain the question of the sufficiency of the previous accommodation (St. John, Hackney v. Hutton [1897], I Q.B. 210; Sherborne L. B. v. Bogle, 46 J.P. 675). Cf. Public Health Acts Amendment Act, 1907, sect. 39, post, p. 168.

All that the local authority can require under this section is that the particular convenience provided by the owner shall be sufficient, but, subject to the requirement that it must be sufficient, it is left to the owner to select which of the several kinds of convenience, privies, waterclosets, or earthclosets he will adopt (Smith v. Greenwod [1907], 2 K.B. 385). Secus if a nuisance exist, see post, p. 124. Where a local authority applied for an order under the English section corresponding to sect. 271 of our Public Health Act entitling them to enter a house and substitute a new watercloset, their notice under the English section corresponding to sect. 45 of our Public Health Act, not having been complied with, and permission to enter having been refused, it was held that the justices were not entitled at the hearing to review the notice (Robinson v. Sunderland Corporation [1890], 1 Q.B. 751).

Under the corresponding English section (which, however, differs materially), it was held that where the privy accommodation was insufficient the local authority could compel the erection of a watercloset (Nicholl v.'Epping U. C. [1899], 1 Ch. 844).]

48. Where it appears to any sanitary authority that any house is used or intended to be used as a factory or building in which persons of both sexes are employed or intended to be employed at one time in any manufacture, trade, or business, the sanitary authority may, if they

think fit, by written notice, require the owner or occupier of such house, within the time therein specified, to construct a sufficient number of ashpits, and of waterclosets, earthclosets, or privies, for the separate use of each sex.

Any person who neglects or refuses to comply with any such notice shall be liable for each default to a penalty not exceeding twenty pounds, and to a further penalty not exceeding forty shillings for every day during which the default is continued.

[See, however, sect. 22 of the Public Health Acts Amendment Act, 1890, post, p. 151. Wherever that section has been adopted in the district the present section is repealed by subsect. 4 thereof.]

drains, &c., on

51. On the written application of any person to a sanitary authority, Examination of stating that any drain, watercloset, earthcloset, privy, ashpit, or cesspool complaint of on or belonging to any premises within their district is a nuisance or nuisance. injurious to health (but not otherwise), it shall be lawful for any sanitary officer duly authorised in writing in that behalf by such sanitary authority, after twenty-four hours' written notice to the occupier of such premises, or in case of emergency without notice, to enter such premises, with or without assistants, and cause the ground to be opened, and examine such drain, watercloset, earthcloset, privy, ashpit, or cesspool. If the drain, watercloset, earthcloset, privy, ashpit, or cesspool on examination is found to be in proper condition, he shall cause the ground to be closed, and any damage done to be made good as soon as can be, and the expenses of the work shall be defrayed by the person making the above-mentioned written application. If the drain, watercloset, earthcloset, privy, ashpit, or cesspool on examination appear to be in bad condition, or to require alteration or amendment, the sanitary authority shall forthwith cause notice in writing to be given to the owner or occupier of the premises requiring him forthwith or within a reasonable time therein specified to do the necessary works; and if such notice is not complied with, the person to whom it is given shall be liable to a penalty not exceeding ten shillings for every day during which he continues to make default, and the sanitary authority may, if they think fit, execute such works, and may recover in a summary manner from the owner the expenses incurred by them in so doing, or may by order declare the same to be private improvement expenses, as well as the expenses incurred in the previous examination.

[When sect. 34 (see p. 167, post) of the Public Health Acts Amendment Act, 1907, is in force in the district the present section shall have effect as if for the words " BUT NOT OTHERWISE there were substituted the words, "OR WHEN ON THE REPORT IN WRITING OF THEIR SURVEYOR

OR INSPECTOR OF NUISANCES THE LOCAL AUTHORITY HAVE REASON TO SUSPECT THAT ANY SUCH DRAIN, WATERCLOSET, EARTHCLOSET, PRIVY, ASHPIT, OR CESSPOOL IS A NUISANCE OR INJURIOUS TO HEALTH." Cf. Public Health Acts Amendment Act, 1907, sect. 45, post, p. 171. The words "bad condition" and "require alteration or amendment" were held not to refer to defects in structure in a somewhat similar context, Sect. Q. (Fulham (Vestry of) v. Solomon [1896], 1 Q. B. 198).

It is not a condition precedent to the right of a local authority to recover from the owner of premises the expenses of abating a nuisance