Banora v Auckland Council
[2019] NZHC 2545
•8 October 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-422
[2019] NZHC 2545
UNDER the Sentencing Act 2006 IN THE MATTER
of an appeal against sentence
BETWEEN
ALEXANDER BANORA
Appellant
AND
THE AUCKLAND COUNCIL
Respondent
Hearing: 8 April 2019 Appearances:
N R Woods for the Appellant S F Quinn for the Respondent
Judgment:
8 October 2019
JUDGMENT OF GAULT J
This judgment was delivered by me on 8 October 2019 at 9.00 a.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors:
Mr N R Woods, Rice Craig, Papakura
Ms K Rogers and Mr S F Quinn, DLA Piper, Auckland
BANORA v THE AUCKLAND COUNCIL [2019] NZHC 2545 [8 October 2019]
Introduction
[1] Mr Banora appeals against his sentence following guilty pleas on two charges under the Building Act 2004 and two charges under the Resource Management Act 1991 (RMA). He was sentenced by Judge Harland in the Auckland District Court on 9 November 2018.1 Judge Harland imposed a total fine of $67,050.
[2] The charges arise from the appellant’s construction of a retaining wall without consent,2 failing to comply with a notice to fix,3 undertaking earthworks in a manner that contravened the District Plan,4 and permitting contravention of an abatement notice.5
[3]Mr Banora says the total fine imposed is manifestly excessive and should be
$7,000. The respondent says the sentence was within range and there was no error that resulted in a manifestly excessive sentence.
Factual background
[4] Mr Banora and his wife own a residential property on Wolverton Street, Avondale (the property). It is close to Te Whau Creek (the stream). The stream runs perpendicular to (and crosses under) Wolverton Street, and parallel to the property. Between the stream and the property is an esplanade reserve owned by the Auckland Council. On the other side of the property is a fenced public footpath.
[5] Part of the property is a flood plain, a flood prone area and an overland flow path. The part of the property that is next to the stream is unstable/suspected ground.
1 Auckland Council v Banora [2018] NZDC 22253.
2 Building Act 2004, s 40. Maximum penalty a fine not exceeding $200,000 and, in the case of a continuing offence, a further fine not exceeding $10,000 for every day or part of a day during which the offence has continued.
3 Section 168(2). Maximum penalty a fine not exceeding $200,000 and, in the case of a continuing offence, a further fine not exceeding $20,000 for every day or part of a day during which the offence has continued.
4 Resource Management Act 1991, ss 9(3), 338(1) and 339(1)–(2). Maximum penalty two years’ imprisonment or a fine not exceeding $300,000 and a further fine not exceeding $10,000 for every day or part of a day during which the offence has continued.
5 Sections 338(1) and 339(1)–(2). Maximum penalty two years’ imprisonment or a fine not exceeding $300,000 and a further fine not exceeding $10,000 for every day or part of a day during which the offence has continued.
[6] Between July 2015 and 22 August 2016 the Council received a number of complaints about activities on the property.
[7] The Council took numerous actions, both formal and informal, under the RMA and the Building Act regarding the regulatory compliance issues at the property, during and after the activities to which these charges relate.
[8]The specifics of the charges are as follows.
Charge one: Building works undertaken without a building consent
[9] This charge is founded on Mr Banora constructing a retaining wall between 4 February 2016 and 27 May 2016 without a building consent.
[10] On 15 March 2016 officers of the Council went to the property for a site visit. They observed that a retaining wall was being built: posts had been put into the ground and secured with concrete. They knew from previous visits the wall was not under construction before 4 February.
[11] Between 18 March and 25 March 2016 officers went to the property for more site visits. On 18 March the retaining wall was still under construction: it then consisted of twelve large piles, which had been concreted in, and a lengthy timber retaining wall carrying a large surcharge6 of gravel, which extended onto the neighbours’ land and into the esplanade. On 23 March officers observed that more work had been done, namely an increased surcharge had been placed on the retaining wall.
[12]All of the work was undertaken by or on the instruction of Mr Banora.
[13] The construction of the retaining wall and retaining structure was undertaken without a building consent.
6 A “surcharge” is an additional load on the land.
[14] The construction of retaining walls that are retaining greater than 1.5m in depth of ground, or that are in support of surcharge or any additional load to the load of that ground (specifically the load of vehicles, parking space and sloping ground above the top of the retaining wall), require building consent under s 40 of the Building Act, and are not exempt under cl 20, sch 1 to that Act. The retaining wall built between 4 February 2016 and 27 May 2016 carries the surcharge of sloping land above it and was constructed for the continuation of the driveway and parking bay for vehicles. It supports a load additional to the load of the ground, specifically the load of the vehicles.
Charge 2: Failure to comply with a notice to fix
[15] This charge arises because Mr Banora was issued with a notice to fix under ss 164 and 165 of the Building Act by the Council on 27 May 2016, and he did not comply. The notice required him to remove the unconsented retaining walls, or obtain a certificate of acceptance for works undertaken, or pursue other options to make the building works comply with the Building Act and the Building Code. All building work had to cease in the interim. He had until 31 July 2016 to comply. He did not comply.
[16] Council officers visited the site on 3 August 2016 and confirmed the retaining wall had not been removed. The summary of facts notes that no application for a certificate of acceptance, or a building consent, had been received by the Council since 27 May 2016 when the notice was issued.
[17] An application for a certificate of acceptance was filed on 27 June 2018, some two years after the notice to fix was issued. The Council was unable to progress it because the defendant’s neighbour is required to give consent, and refused to do so. The Council accepts the defendant’s hands are tied because of this approach.
Charge 3: Contravention of the District Plan without resource consent
[18] Mr Banora was also required to get a resource consent under the RMA for earthworks and removing vegetation. This charge is that he permitted the contravention of section 9(3) RMA by using land in a manner which contravenes a
rule in the operative Auckland Council District Plan (Isthmus Section) and the Proposed Auckland Unitary Plan (Decisions Version). That is, undertaking earthworks and removing vegetation without resource consent between 4 February and 2 August 2016.
[19] On the same visits as described above, officers observed on 15 March 2016 that trees, grass and shrub had been removed, and earthworks had been undertaken at the northern end of the property without sediment controls. On 23 March 2016 officers found that more work had occurred: the earthworks exceeded 250m2 on a slope greater than 5 per cent; a building platform had been formed; large trenches of approximately two metres deep had been dug along the eastern and southern boundaries of the property; vegetation had been removed from the flood prone area of the property; and there were still no erosion or sediment controls.
[20] On 24 March 2016 council officers and Tonkin and Taylor, an environment engineering consultancy, visited the property again. Tonkin and Taylor produced an emergency report dated 25 March 2016. Their observations included that the trench walls were unstable, had partially undermined the adjacent public footpath and threatened the Council’s reserve walkway to the south, and were likely to fail without warning.
[21] On 20 April 2016 the Council sought a search warrant from the District Court to gather evidence in the form of a comprehensive survey. Armed with their warrant, officers visited the property on 22 April 2016. They observed:
(a)the retaining wall had been constructed as described above;
(b)there had been earthworks, and material deposited;
(c)a public storm-water culvert that ran under the public footpath was concreted over; and
(d)no erosion or sediment control measures were present.
[22] The extent of the earthworks was over an area of 699m2 and on a ground slope of greater than five per cent. The earthworks were over an area of the land which was a flood path, flood prone and an overland flow path.
[23] Council officers attended again on 29 June 2016 and observed further works had been done, and serious flooding at the property, adjacent properties and the public walkway.
[24] On 2 August 2016 officers visited the property again. They observed seemingly dramatic changes:
(a)There was a new concrete pad extension to the existing concrete parking area at the back of the house.
(b)A significant part of the public walkway and underlying drainage adjacent to the property on the reserve had been removed.
(c)Approximately 18 metres of the public concrete path had been removed, along with the underlying soil, and the public storm-water culvert and wastewater pipes had also been removed.
(d)More trenches had been excavated along the eastern and southern boundaries of the property, of approximately one metre in depth, extending into the esplanade reserve.
[25] The Environment Court made an enforcement order on 29 August 2016 prohibiting further works on site, and all activities ceased.7
[26] All of the above activities are governed under the RMA by the Auckland District Plan. All of the work breached the District Plan and the (then) Proposed Auckland Unity Plan. Consent was required but no consent was sought or granted.
7 Auckland Council v Banora [2016] NZEnvC 172.
Charge 4: Contravention of an abatement notice
[27] The Council issued Mr Banora two abatement notices on 1 April 2016 under s 322(1)(a)(i) of the RMA requiring him to cease all earthworks in breach of the RMA. He was required to comply immediately. He did not do so. Council officers visited on 20 April, 29 June and 2 August 2016 and observed there had been further earthworks, as described above.
District Court decision
[28] The Judge began by noting that any fines imposed must be sufficient to meet the purposes of denunciation and deterrence, and the general desirability of consistency with other cases where the Courts have dealt with similar defendants committing similar offences in similar circumstances.8
[29]The Judge then proceeded to set a starting point for each charge.
Building Act charges
[30] The Judge noted Wilson v Fowler was the leading case on relevant Building Act offending.9 That case held that the general approach involving offending under the Building Act for undertaking building work without consent is to adopt a starting point of around $5,000 for lower scale offending and $10,000 for more significant offending
[31] The Council was arguing for a starting point for both offences under the Building Act of $10,000, and the defendant for $4,000. The Judge was referred to a number of cases concerning somewhat similar offending, but noted that those cases had not considered that penalties under the Building Act have effectively doubled since Wilson v Fowler was decided in 1999.10 The Judge considered that now is the time for the increase in maximum penalties to be reflected in the sentence imposed for Building Act offences, even if the principles in Wilson v Fowler would still apply. The
8 Sentencing Act 2002, ss 7 and 8.
9 Wilson v Fowler HC Auckland AP2003/98, 16 March 1999 at 16.
10 The relevant provisions of the Building Act 1991 and the Building Act 2004 provided a maximum penalty of $100,000 which was increased to $200,000 by s 16 of the Building Amendment Act 2013.
Judge noted that sentences for RMA offending have increased since the maximum penalties were increased from $200,000 to $300,000 in 2009.11
[32] The Judge therefore determined that the key question was what the appropriate range is for the starting point for a fine, bearing in mind that the time has come for penalties to increase.
[33] The Judge then proceeded to assess Mr Banora’s culpability. She determined the offending was deliberate, because Mr Banora was personally responsible for undertaking and commissioning the works, the works were not authorised by a building consent, and after having being advised of the need for one, he still did not apply for one. Neither, said the Judge, did Mr Banora comply with the notice to fix. The Judge noted that Mr Banora had submitted an application for a certificate of acceptance, and that his hands were tied because of his neighbour not giving consent, which presented a significant difficulty for him, but concluded this was a consequence of a building consent not being sought prior to the work being undertaken.
[34] The Judge considered Mr Banora’s arguments in mitigation, namely that there was no real risk of the retaining wall failing, there was a need for the retaining wall, and that the Council was acting unreasonably (in Mr Banora’s view). The Judge did not accept these matters provided any justification for the defendant failing to obtain a building consent. The Judge noted that although she had no doubt that Mr Banora genuinely believed his actions were justified, nevertheless his actions were objectively unreasonable. The Judge also considered as an aggravating feature that it took Mr Banora two years from receiving the notice to fix to apply for a certificate of acceptance.
[35] The Judge decided that both breaches of the Building Act should attract a separate starting point by analogy with offending under the RMA, where the Judge said it is usual to adopt a separate starting point for breach of an abatement notice. The Judge said this is further justified because the purposes of the Building Act would not be met if notices to fix were simply ignored, and by reference to the fact that failing to comply with a notice to fix carries a potentially harsher penalty than carrying out
11 See s 139 of the Resource Management (Simplifying and Streamlining) Amendment Act 2009.
work without a building consent. Both carrying out work without a building consent and a failure to comply with a notice to fix are punishable by a fine not exceeding
$200,000, but the former carries an additional penalty of $10,000 for every day during which the offence has continued, compared with $20,000 per day for the latter.
[36] The Judge concluded that the starting point of $10,000 suggested by the Council was within range, but did not adopt it. The Judge instead adopted a starting point of $15,000 for each charge. The Judge wrote this was appropriate because of the need for denunciation and deterrence, this was moderately serious offending, and there was a need for an increase in penalty.
RMA offending
[37] The Council had submitted a starting point of $30,000 for the breach of s 9(3) of the RMA, and $10,000 for breach of the abatement notice. The Judge noted the earthworks were undertaken without resource consent, and there were no erosion or sediment controls put in place as required to ensure discharges of sediment did not go into the nearby stream, and that sediment can have adverse effects on waterways. The Judge determined the risk of sediment entering the stream was high, given the area was a flood-path and the extent of the earthworks, and, even if there had been no actual damage to the stream, there was potential for this to occur. The defendant’s earthwork activities only stopped when the Environment Court issued enforcement orders against him on 9 December 2016. The Judge noted, as previously described, that the defendant did not comply with the requirement of these orders to remediate the damage. In addition, the Judge said the defendant’s actions resulted in the esplanade partially being destroyed, preventing access by the public. The Judge noted that the esplanade was not likely used by the public frequently, but the public could lawfully use it and the defendant’s actions prevented that.
[38] The Judge considered that the starting points suggested by the prosecutor were modest. According to the Judge, the starting point of $30,000 for the s 9(3) charge was “well within the appropriate range”, and starting points of 20,000, as opposed to the $10,000 nominated by the prosecutor, were often adopted for breaches of abatement notices.
[39] The Judge adopted the prosecutor’s recommendation of $30,000 as a starting point for the s 9(3) offending, and a starting point of $20,000 for the breach of the abatement notice, cumulative on the other fines.
[40] The Judge then considered totality, and found that the cumulative starting point of $80,000 was justified. The Judge wrote that this was one of the most deliberate examples of this kind of offending that had come before her, and that there had been real adverse effects on the environment. While acknowledging the offending was not undertaken with malice, the Judge determined continuing with the offending despite the notice to fix and abatement notice was unreasonable and unjustified.
[41] The Judge then allowed a discount of five per cent for previous good character, and a discount of 10 per cent for the guilty plea given it was entered at a late stage. The Judge imposed the following fines, totalling $67,050:
(a)$12,150 on the two Building Act charges;
(b)$17,100 for breach of the abatement notice; and
(c)$25,650 on the s 9(3) charge.
Approach on appeal
[42] To succeed on an appeal against sentence, the appellant must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.12 The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. The Court will only intervene and substitute its own view if the sentence is manifestly excessive or wrong in principle.13 However, the appeal court’s focus is on the final sentence imposed rather than its component parts or how the ultimate sentence was reached.14
12 Criminal Procedure Act 2001, ss 250(2) and (3).
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
14 Ripia v R [2011] NZCA 101 at [15].
Grounds of appeal
[43] As I have said, the appellant contends for a total fine of $7,000, and the respondent seeks to uphold the fine of $67,050 imposed by Judge Harland.
[44]The appellant raises numerous grounds of appeal to bridge this gulf:
(a)The Judge erred in setting the starting points for both the Building Act and RMA offending.
(b)The Judge failed to adequately take into account general mitigating features, such as the conduct of the prosecution.
(c)The Judge did not adequately consider the principles and purposes of sentencing.
(d)The Judge did not apply an appropriate discount for the guilty plea.
(e)The Judge did not adequately consider totality.
Building Act starting point
[45] Mr Woods for the appellant submits the Judge adopted the wrong starting point for the Building Act offending, because of three errors:
(a)incorrectly assessing the appellant’s culpability;
(b)misapplying the tariff case Wilson v Fowler,15 and not following other case law; and
(c)treating the two charges as attracting a separate fine.
[46]I address each in turn.
15 Wilson v Fowler HC Auckland AP2003/98, 16 March 1999.
The appellant’s culpability
[47] Mr Woods submits the Judge was wrong to find that the offending was moderately serious. In particular, he submits the Judge was wrong to sentence on the basis the offending was deliberate, without giving sufficient credit for the fact that Mr Banora genuinely believed that the works were necessary to improve the safety of his tenants and neighbours because there were cracks in the wall and driveway, and that the Council would not process a consent application; that the works were safe, secure and a significant improvement on the carpark, which was in danger of collapsing; and the alleged poor conduct of the Council in not fixing alleged issues with sewage discharges.
[48] Mr Banora submitted much material to the Judge and in this Court to support his justifications for the work. Mr Woods also refers to a civil claim Mr Banora brought against the Council, where he alleges the Council has been involved in various activities, including granting resource consent to neighbouring properties, which caused him loss of use and enjoyment of the property. A particular concern was the discharge of sewage and wastewater onto his land. Without going into the detail of this civil proceeding, it was determined in March 2019, before the appeal hearing, and Mr Banora’s claims failed.16
[49] Like the District Court Judge, I do not consider it appropriate to examine all this material relating to the civil claim. Mr Banora pleaded guilty to an agreed summary of facts. He was sentenced on the basis of that summary of facts. It is not open to him to submit further evidence contradicting the facts he admitted except in a disputed facts hearing.17 There is of course room to submit material in support of uncontested mitigating factors, such as remorse, or the defendant’s personal circumstances. But much of the material went beyond that, and seemingly sought to show Mr Banora was reasonable in his actions, although not amounting to an excuse. I consider the Judge could have considered the reports if all they were produced to show was that Mr Banora had honestly believed he was justified in his actions. But
16 Banora v Auckland Council [2019] NZDC 5184 [155].
17 See R v Apostolakis (1997) 14 CRNZ 492 (CA); R v Whiunui CA212/05, 9 November 2005 at [14]; and Pokai v R [2014] NZCA 356 at [30].
I do not consider anything turns on this as the Judge accepted Mr Banora’s honest belief in any event.
[50] In terms of the other matters in mitigation, after having reviewed the appellant’s submissions, I agree with the Judge in accepting that Mr Banora genuinely believed he had a reasonable justification for doing what he did, but that nevertheless his actions were objectively unreasonable.18 A belief the Council was acting unreasonably (even one based on professional advice) was not a justification for breaching the law. And, as the Council submits, the fact Mr Banora believed consent applications would not be successful, but proceeded anyway, is in fact evidence of the deliberateness of the offending. I accept though that the summary of facts does not allege the retaining wall was substantively unsafe.
[51] Mr Woods makes two other points as to the appellant’s culpability. First, in terms of the breach of the notice to fix charge, that the Judge erred in proceeding on the basis Mr Banora continued works after the notice to fix had been issued.19 Mr Woods submits that the only work that continued was a low wall that was not an infringement. That may be correct, but it does not undermine the Judge’s conclusion that the breach was deliberate and has only modest impact on the conclusion it was moderately serious. However, it may have had some impact. I do not accept the respondent’s submission relying on earlier notices to fix. The relevant charge relates to the May 2016 notice.
[52] The Judge also refers to the length of time Mr Banora took to apply for a certificate of acceptance as being an aggravating feature. As noted, the certificate of acceptance was filed two years after the notice to fix was issued. I consider the Judge was entitled to regard this as an aggravating feature albeit not a significant one since the application required the neighbour’s consent, which was not forthcoming. I also accept the delay is to be seen in the context of the other proceedings that were ongoing.
[53] Secondly, Mr Woods submits the Judge erred by finding there had been no real progress towards resolving non-compliance with the notice to fix, because an
18 Auckland Council v Banora [2018] NZDC 22253 at [59].
19 Citing [59] and [60] of the decision.
application for a certificate of acceptance had been filed, and the wall was sturdy. I do not read the Judge as suggesting this. The Council and the Judge accepted that Mr Banora’s hands were tied in relation to progressing his application for a certificate of acceptance as his neighbour refused to consent.
[54] Taken overall, I am satisfied the Judge correctly assessed the offending as deliberate and moderately serious.
Misapplying case law
[55] The leading case for this Building Act offending is the decision of this Court in Wilson v Fowler.20 That decision was under the Building Act 1991, but it has been applied equally to penalties under the current Building Act.21
[56] Wilson v Fowler is now 20 years old. While it was a Council appeal and the Council sought a tariff judgment, the decision does not purport to be a tariff one, and it is not reported. Mr Fowler had embarked upon excavations and site works on his property without building consent. The Council was granted an injunction pursuant to s 81 of the Building Act 1991 restraining Mr Fowler from proceeding with any further work except in accordance with a current building permit issued under s 32 and s 35 of the Act. Mr Fowler ignored the Court order and proceeded to work further on his property. On appeal as to the sentence, Giles J considered other similar cases and wrote the following guidance on the appropriate level of fine in such a situation:22
But for the limitations introduced through s 27 of the Criminal Justice Act 1985 in this particular case, I incline to the view, as a matter of generalisation, that even lower scale offences against the provisions of s 80(1)(a) [equivalent to the current s 40(2) – carrying out work without a consent] could ordinarily be expected to attract a penalty somewhere in the range of $5,000 plus as a starting point. A fortiori, the more serious offence contemplated by s 80(1)(c) [equivalent to the current s 168 – failure to comply with a notice to fix] must attract a higher range. A starting point in the area of $10,000 upwards would not necessarily be untoward. Indeed, very substantial penalties may well be appropriate depending upon the particular circumstances of the particular case. Informants will, however, need to be sensitive about “over prosecuting”.
20 Wilson v Fowler HC Auckland AP2003/98, 16 March 1999.
21 See, for example, Haddock v Thames-Coromandel District Council [2017] NZHC 1926 at [62].
22 Wilson v Fowler HC Auckland AP2003/98, 16 March 1999 at 16.
[57] Mr Woods submits that the Judge misapplied that case by applying higher fines. In addition, he submits the Judge wrongly distinguished the case Selwyn Mews Ltd v Auckland City Council, another decision of this Court, which he says is analogous to the present offending.23
[58] Selwyn Mews Ltd (SML) had been doing excavation work on a residential development in Selwyn Street, Onehunga. After heavy rain, there was a large subsidence on the property, which extended into neighbouring properties. SML complied with a notice to rectify and constructed a new timber and pole retaining wall. One charge was that SML had failed to comply with the building code under s 80(1)(e). SML also failed to comply with a subsequent consent order requiring SML to construct two further timber retaining walls within five days of the commencement of construction. The first retaining wall was completed promptly, but the second retaining wall was incomplete seven weeks after it should have been finished and subsequently collapsed. There was only one charge, and SML were sentenced to a fine of $2,000, the maximum being $5,000. This was upheld on appeal. I do not consider that this case is a good analogy to the present offending, as that charge was under a different provision of the Building Act, with a much lower maximum.
[59] Mr Quinn for the respondent submits the Judge was correct to increase the monetary penalties from those outlined in Wilson v Fowler because the maximum penalty for s 40 offending of $100,000 was increased to $200,000 by s 16 of the Building Amendment Act 2013, and Wilson v Fowler was decided over 20 years ago, so an allowance should be made for inflation.
[60] I accept that an increase is appropriate to account for these matters. To say fines set by a Court at a point in time should not be increased to account for inflation would be to suggest that a person who commits an offence today is inherently less culpable than a person who committed similar offending in the past. I note that Courts dealing with similar issues in other areas of law have increased fines for this reason.24 That is not to say, of course, that sentencing levels cannot be legitimately reduced by
23 Selwyn Mews Ltd v Auckland City Council HC Auckland CRI-2003-404-159, 30 April 2004.
24 See, for example, Department of Labour v Hanham & Philp Contractors Ltd (2008) 6 NZELR 79 (HC) at [59]; and Sherley v Police [2012] NZHC 1499 at [23].
either the Courts or Parliament if circumstances so warrant. But the mere passage of time is not a sufficient reason to reduce sentencing levels. This would be the effect of leaving the guidance intact.
[61] In fact, this is not the first time a Court has increased the fine payable to account for inflation since Wilson v Fowler. In the decision of the District Court in Auckland City Council v Dong, which involved sentencing on a charge of failing to comply with a notice to fix, Judge McElrea said:25
[14] In Wilson v Fowler, it was suggested that even lower scale offences against s 80 would attract a starting point of $5000. Some of the cases cited by Mr Baker, show fines significantly above that level.
[15] Wilson v Fowler is a case decided in 1999, which is nine years ago. One must allow some element of inflation in that area. I would have thought that today, a starting point even for a lower level offence, would be in the order of $7000, perhaps more. I proceed on that basis.
[62] I note that this decision has not, however, been applied or considered to any great extent. Other recent cases have applied Wilson v Fowler without adjustment.26
[63] Purely considering inflation, according to the Reserve Bank’s CPI inflation calculator, $1 in 1999 (when Wilson v Fowler was decided) is worth approximately
$1.52 today. On that basis, the fine proposed in Wilson v Fowler for lower level breaches of s 40 of $5,000 would be approximately $7,500 today, and $15,000 for more serious offence of failure to comply with a notice to fix, compared with the
$10,000 set in Fowler.
[64] That is not taking into account the increase in the maximum penalty, for which there should perhaps also be some allowance. Mr Woods argues the increased maximum does not necessarily evidence an intention by Parliament to increase penalties overall, and the increase may have been intended to capture large scale commercial offending. There is little indication in the Parliamentary record either way. Both the explanatory note to the Building Amendment Bill (which became the Building Amendment Act 2013) and the select committee report simply note that the
25 Auckland City Council v Dong DC Auckland, CRI-2007-004-13562, 1 April 2008 at [14]–[15].
26 See, for example, Haddock v Thames-Coromandel District Council [2017] NZHC 1926 at [62]– [64]; and The Wanaka Gym Ltd v Queenstown Lakes District Council [2012] NZHC 284 at [157].
penalty was increasing.27 In the first reading, however, the Hon Maurice Williamson MP, who was the Minister responsible for the Bill, said:28
The bill also contains some other important amendments to the Building Act 2004 to improve efficiency and accountability in the sector. These include increasing from $100,000 to $200,000 the maximum penalty for doing building work without a building consent, which will better signal that the offence is one of the most serious offences that can be conducted in the Building Act.
[65] During the second reading, Nicky Wagner MP speaking for the Bill noted, “[the penalty] has been moved to a $200,000 fine just to show how serious we are about making sure that people get their building consents correctly done and that that protects consumers as well”.29
[66] While I could not find any indication of a specific intent by Parliament to increase penalties for lower level offending, these passages indicate that Parliament viewed breach of s 40 as being a serious offence, which should not attract an insignificant penalty.
[67] Considering these features overall, I do not consider the Judge misapplied the case law. It was appropriate for the Judge to adopt the approach in Wilson v Fowler, but increase the fines to take account of inflation and the increase in the maximum penalties.
[68] Mr Woods also submitted that Mr Banora was entitled to rely on similar case law when pleading guilty, and the Judge’s departure from that case law was contrary to s 8(e) of the Sentencing Act 2002, which requires the Judge to take into account the general desirability of consistency with appropriate sentencing levels in respect of similar offenders committing similar offences in similar circumstances. As I have said, I do not consider the Judge’s decision was inconsistent with Wilson v Fowler. The Judge also made clear she considered other case law, and referenced a number of cases. For example, in O’Byrne v Waimakariri District Council, Mr O’Byrne built a hay shed without a building consent, knowing he needed one but against a background
27 Building Amendment Bill (2011) (322-1) (explanatory note) at 1; and Building Amendment Bill (2011) (322-2) (select committee report) at 1.
28 (28 March 2012) 678 NZPD 1454.
29 (28 February 2013) 687 NZPD at 8372.
of frustration with the Council.30 In that respect the case is similar. The Judge took as mitigating features that there was no harm to the land, that the building was of a higher quality than a consent would have required, and a permit would have been granted had he applied for one. Fogarty J approved a starting point of $10,000 on appeal in 2010. Such offending is less serious than in this case.
[69] It was also open to Mr Banora to seek a sentence indication from the Court before pleading guilty, which would have given him a more firm idea of the likely consequences.
[70] Having considered Mr Banora’s culpability and the state of the case law, I am satisfied that the starting points of $15,000 were in range, if perhaps stern given the respondent sought starting points of $10,000 and my conclusion that while still moderately serious, the s 40 offending did not continue in the way the Judge said. While I might have adopted a starting point of $10,000 for that charge, it must be remembered in this context that the maximum fine for both these offences is $200,000, which is significantly greater than the starting points imposed in this case for moderately serious offending.
Treating the two charges as attracting a separate fine.
[71] Mr Woods submits the Judge erred in applying separate fines for breach of s 40 and failing to comply with the notice to fix. However, I consider separate fines were appropriate. The two offences were distinct, and as recognised in Wilson v Fowler, breach of a notice to fix is a more serious charge than failing to carrying out building work without a consent.31 I agree with the Judge’s comment that breaching a notice to fix would have little meaning if no separate fine was imposed.32 Whether the overall fine is excessive is a matter to be determined when I come to consider totality.
30 O’Byrne v Waimakariri District Council HC Christchurch CRI-2009-409-188, 29 April 2010.
31 Wilson v Fowler HC Auckland AP2003/98, 16 March 1999 at 16.
32 Auckland Council v Banora [2018] NZDC 22253 at [61].
RMA starting point
[72] Similar to the grounds of appeal under the Building Act charges, Mr Woods submits that the Judge erred in setting the starting point for the RMA offending by incorrectly assessing Mr Banora’s culpability, and not applying case law.
RMA culpability
[73] Mr Woods submits the Judge did not correctly assess the seriousness of the RMA offending for the following reasons: the Judge failed to balance the deliberateness of the offending with the fact Mr Banora had a genuine reason for doing what he did, and did not attempt to hide his offending; the Judge overstated the potential consequences of the offending, including the risk of sediment discharging into the stream; and the Judge took insufficient account of evidence that appropriate sediment controls had been put in place.
Deliberateness and justification
[74] Mr Woods submits the Judge erroneously determined that Mr Banora was highly culpable because the offending was deliberate. While acknowledging it was deliberate, he submits it was done for a genuine reason, being to remediate the alleged ongoing stormwater and sewage discharges over Mr Banora’s land. It was also done openly and without attempt to conceal what he was doing: it was a “self-help” remedy. Mr Woods submits the Court erred by refusing to consider the evidence of Dr Finnigan, which is said to confirm there were positive sewage discharge results. Alternatively, the Court erred by not determining whether there were sewage discharges by way of a disputed facts hearing, which the appellant says was requested.
[75] The respondent does not dispute, nor do I doubt, that Mr Banora genuinely believed he had a good reason for doing the work. And I accept there was no attempt to conceal the work. I also accept the Council had previously cleared vegetation in the nature of weeds. But none of that excuses the fact he was deliberately doing work
– of some scale – which he knew (or should have known) was illegal. Frustration with the Council, whether or not legitimate, did not justify carrying out unlawful self-help works.
[76] In terms of whether Mr Banora had a legitimate reason for doing the earthworks, that is not reflected in the summary of facts to which Mr Banora pleaded guilty. The Court of Appeal in R v Kinghorn stated that it is inappropriate to deal with a critical contested fact at a sentencing hearing, rather than at a disputed facts hearing.33 I consider this applies all the more in the context of a sentence appeal. If the appellant wished to dispute the summary of facts, he should have done so before sentencing, as indicated above.
[77] The appellant’s written submissions do say at one point that a disputed facts hearing was requested, but I can find no evidence that was the case. In relation to the sewage discharge issue, I understand that for sentencing Mr Banora submitted briefs of evidence (his own and from Dr Finnigan) from his civil proceedings. The status of those briefs was not clear. I do not consider it an error for the Judge to disregard briefs evidence not raised in a disputed facts hearing in circumstances where the defendant has pleaded guilty to an agreed summary of facts.34 As I said above, those briefs could be admitted to show the genuineness of Mr Banora’s belief his actions were justified, but they went further than that.
[78] Further, it is a defence to a breach of s 9 of the RMA that the works undertaken were necessary to avoid serious damage to property or avoiding an actual or likely adverse effect on the environment, if the conduct of the defendant was reasonable and the effects of the action were adequately mitigated.35 But Mr Banora did not assert this defence, he pleaded guilty. The summary of facts to which he pleaded guilty did not include this as mitigation. It is not now open to him to say otherwise.
Overstated the potential consequences
[79] Mr Woods also submits that the Judge erroneously inferred the earthworks and removal of vegetation exposed soil to erosion, affecting the stream. What the Judge said was:36
34 See above n 17.
35 Resource Management Act 1991, s 341(2).
36 Auckland Council v Banora [2018] NZDC 22253 at [69].
It is difficult for me to assess the impact the earthworks may have had on the stream, but given that the earthworks were undertaken in land which was a floodplain, flood-prone and an overland flowpath, and the fact that the survey on 22 April 2016 determined that the extent of the earthworks was over an area of 699m2 with a gradient > five percent, some sediment from the site would have entered the stream during heavy rainfall. Furthermore, it is easy to infer that the earthworks and vegetation removal would have exposed the soil to erosion. Even if there had been no actual damage to the stream, however, the charge to which the defendant has pleaded guilty reflects the potential for this to occur.
[80] Mr Woods submits the summary of facts did not contain an allegation of discharge into the stream (apparently such an allegation was removed), and it was wrong of the Judge to infer an adverse environmental effect. He says the Judge also misunderstood that when she said the land was unstable.37 Overall, he submits the mere potential for discharge or instability is not relevant, bearing in mind one would expect if such matters were a real risk, the risk would likely have eventuated by now.
[81] Mr Quinn submits the Judge was entitled to draw such an inference about the potential consequences, given the inference was grounded on established facts in the summary of facts.38
[82] I consider the Judge was appropriately cautious about the potential effects of the offending. She was not in a position to assess the value of the affidavits from the other proceedings and acknowledged it was difficult to assess the impact of earthworks. Her conclusion was that there was potential for damage to the stream to occur – which she said was reflected in the charge to which Mr Banora had pleaded guilty. Even if actual damage did not eventuate, I do not consider the Judge’s reference to potential for damage wrongly affected her view of the seriousness of the breach.
Remediation
[83] Mr Woods submits the Judge erred by failing to give sufficient weight to the affidavit of Mr Marshall, who the appellant submits gave evidence that appropriate sediment controls were put in place in 2016, mitigating the seriousness of the offending.
37 Auckland Council v Banora [2018] NZDC 22253 at [70].
38 R v Kinghorn [2014] NZCA 168 at [20]
[84] The Judge declined to give this evidence any significant weight. I consider this was appropriate, given the summary of facts explicitly says the earthworks were undertaken in 2016 without sediment controls. As I have said above, it is not appropriate for the appellant to submit evidence contradicting the summary of facts other than in a disputed facts hearing, unless the evidence is minor and not opposed. Also, the sediment controls were said to be put in place in December 2016, which makes little difference to the summary of facts.
[85] I am satisfied the Judge did not err by failing to consider the evidence of remediation.
[86] Overall, even though the environmental effects were at the lower end, I am satisfied that the Judge correctly assessed Mr Banora’s offending as being deliberate and with the potential for damage to the environment.
RMA case law
[87] Mr Woods submits the Judge erred by distinguishing the decisions in Selwyn Mews Ltd v ACC and Southland Regional Council v Jefcoate,39 in favour of cases involving farming businesses.
[88] I have already described the facts of Selwyn Mews. The other charge in that case was contravening an enforcement order or permitting its contravention.40 That has the same maximum penalty as the present offending, although the charge Mr Banora faces is contravening the Unitary Plan.
[89] Mr Quinn submits that case is factually different from the present, which I accept. As I have said above, I do not consider Selwyn Mews overly helpful here.
[90] In Southland Regional Council v Jefcoate, Mr Jefcoate faced a single charge of contravening an abatement notice. Mr Jefcoate had deposited rubble, including concrete blocks, broken concrete, clay bricks and clay pipes, for a distance of
39 Selwyn Mews Ltd v Auckland City Council HC Auckland CRI-2003-404-159, 30 April 2004; and
Southland Regional Council v Jefcoate DC Invercargill CRI-2009-025-1924, 28 August 2009.
40 Section 338(1)(b) of the Resource Management Act 1991.
30 metres along a river boundary. In places the topsoil from the bank had been scraped off and pushed over the rubble. Some pieces of rubble had fallen into the river. A council officer told Mr Jefcoate to stop work. An abatement notice was issued, requiring him to remove the rock protection work by 5 January 2009. Mr Jefcoate did not comply with the abatement notice. The informant laid the charge in June 2009. Mr Jefcoate eventually obtained a resource consent to build a wall. The Judge took a starting point of $8,000. The Judge did not entirely accept that the offending was innocent, but considered that Mr Jefcoate may have acted reasonably in applying for a resource consent instead of complying with the abatement notice, which may have caused damage to the environment.
[91] Mr Quinn submits this case was decided before the penalties were increased by s 139 of the Resource Management (Simplifying and Streamlining) Amendment Act 2009, so should no longer provide assistance, as decided by the Judge.
[92] I do not find this case to be of particular relevance. I find some other cases more helpful. In Koroniadis v Wellington City Council, decided in 2013, the appellants were each charged with failing to comply with an abatement notice issued by the Wellington City Council requiring the removal of an addition to a garage situated at the southern corner of the property, which had not been authorised by resource consent or, alternatively, did not comply with the proposed and operative Wellington City District Plan.41 The Judge found the deliberate nature of the appellants' offending and their attitude and conduct of particular relevance. They consistently failed to act to rectify the situation despite numerous requests to remove or alter the structure to render it compliant. Following the issue of the subject abatement notice, the appellants still failed to take action. The Court upheld a fine of $30,000.
[93] In Auckland Council v Choi, Mr Choi was charged with contravening a district rule in breach of s 9(3) of the RMA by heavily pruning a protected Pohutakawa on his land.42 The offending was deliberate, and the Judge considered there was a need to deter similar offending. The Judge adopted a starting point of $20,000, taking into account there was an order by consent for the rehabilitation of the tree.
41 Koroniadis v Wellington City Council [2013] NZHC 1825.
42 Auckland Council v Choi [2018] NZDC 23488.
[94] In Auckland Council v Gilinsky, which was another decision of Judge Harland, the defendant built a large tree house on his land on Waiheke, which involved clearing native protected vegetation.43 The offending was moderately serious, but not deliberate, only careless and reckless. The defendant was co-operative with council officers and applied for a resource consent. The Judge adopted a starting point of
$35,000.
[95] Having considered these cases, and Mr Banora’s culpability as discussed above, I find that the starting points adopted by the Judge are within the available range. For similar reasons as above, I also do not consider it was an error to impose a separate fine for breach of the abatement notice (subject again to totality, considered later).
Mitigating features
[96] Mr Woods submits the Judge failed to apply correct discounts for good character, and the conduct of the prosecution.
Good character
[97] The Judge applied a discount of five per cent for good character. Mr Woods submits this is inadequate given Mr Banora is over 70 years old, has no prior convictions, is unlikely to reoffend, and does not have the same financial resilience as a younger person with a greater earning potential – albeit he can meet the fines. As the Judge acknowledged, the proceedings have been stressful for him.
[98] I consider this discount is rather light. The Judge noted that Mr Banora had done much to contribute to his own hardship, and I agree. But, subject to considering whether the total sentence is manifestly excessive, I consider a discount of 10 per cent would have been more appropriate.
43 Auckland Council v Gilinsky [2017] NZDC 24573
Conduct of the prosecution
[99] Much of the appellant’s concern in this regard relates to the Council allegedly permitting sewage discharges over the land. As I have discussed above, this does not justify or reduce the culpability of the offending. I do not consider the Judge erred by not giving a separate discount for this matter.
Not adequately considering the purposes and principles of sentencing
[100] This ground of appeal pervaded the appellant’s submissions on other issues, such as the Judge’s alleged failure to sentence consistently with other case law. Subject to reflecting on these again in relation to totality, I consider the Judge adequately considered the purposes and principles of sentencing, and that I have sufficiently dealt with specific points as they have arisen.
Guilty plea
[101] Mr Woods submits the Judge’s discount of 10 per cent for the guilty plea was too low.
[102] The Judge based her discount on the fact that the guilty plea was entered at a late stage (the Friday before the hearing was to commence on Monday) and that there would have been significant wasted preparation on the part of the prosecution prior to the guilty pleas being entered.
[103] Mr Woods submits this disregards the fact that the plea was entered following a substantial amendment to the summary of facts, which involved removing the most serious charge. In these circumstances, the appellant submits a discount of 15–20 per cent was justified.
[104] Mr Quinn acknowledges the 10 per cent discount was low but submits it was within range.
[105] The Supreme Court in Hessell v R wrote that the value to be attributed to a guilty plea is to be assessed having regard to all of the circumstances of the case, not just the timing.44
[106] Weighing these features together, I consider the discount should have been at least 15 per cent, probably 17.5 per cent. If Mr Banora had pleaded to a greater lead charge, which as I understand would have been based on sediment being discharged into the stream, the level of the fine could have been much greater. I consider it is reasonable in those circumstances for him to have only pleaded once that charge was withdrawn. Also, the prosecution cost was less wasted given the civil proceedings.
Totality
[107] The appellant submits the Judge paid insufficient regard to the totality of the sentence. The Judge did consider totality:45
[78] I step back, and consider whether the principle of totality is reflected in the starting points I have adopted. After careful consideration, I have reached the view that the starting points, when viewed on a totality basis, are justified. Even though the effects on the environment cannot be assessed with any degree of particularity, this is not a case where there were no adverse effects. In terms of the defendant's culpability for the offending, this is one of the most deliberate that has come before me. Whilst not motivated by any malice, in my view the defendant's actions in undertaking the works on the site without building or resource consent, and continuing with them despite the Notice to Fix and Abatement Notice were unreasonable and unjustified.
[108] The thrust of the appellant’s submission is that this case is one with unique facts, and that it was not a case for the District Court to dramatically increase the penalties payable, vis-à-vis those in cases like Selwyin Mews and Jefcoate. I have already found that those cases are not good analogies, and that the penalties imposed by the Judge were in range.
[109] Mr Wood also submits the offending as a whole was completely avoidable had Mr Banora had more faith in the legal processes available to him, and that the offending was triggered by the actions of the Council. This submission is not accepted for reasons already given. Lack of faith in the Council is not a reason to break the law.
44 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [70].
45 Auckland Council v Banora [2018] NZDC 22253 at [78].
[110] I do consider that, taken as a whole, the total starting point of $80,000 for all of the offending was high in this unusual case. As well as considering the starting point for the s 40 charge to be stern albeit within range, I consider there was a degree of overlap in the offending, as the earthworks were in part related to building of the retaining wall, and Mr Banora’s belligerence in ignoring the abatement notice and notice to fix both came from the same cynicism about the Council’s actions. Mr Quinn responsibly said the Council acknowledged that Mr Banora feels wronged.
[111] In these circumstances, I consider the total starting point should have been reduced to $60,000. From this, deducting 10 per cent for good character, and then
17.5 per cent for the guilty pleas, comes to a total fine of $44,550.
Conclusion
[112] I now consider whether the difference between my figure of $44,550 and the District Court’s figure of $67,050, being $22,500, makes the sentence as a whole manifestly excessive. I consider it does. I therefore allow the appeal. I substitute Judge Harland’s sentences with the following:46
(a)CRN ending -654 (breaching s 40 of the Building Act) – a fine of
$8,072.82;
(b)CRN ending -656 (breach of the notice to fix) – a fine of $8,072.82;
(c)CRN ending -657 (breaching the abatement notice) – a fine of
$11,361.74; and
(d)CRN ending -658 (breaching s 9(3) of the RMA) – a fine of $17,042.62.
46 I have reduced the fines Judge Harland imposed proportionately to the total difference.
[113] I impose the fines on the same terms as Judge Harland did at [83] of her judgment.
Gault J
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