Cancian v Tauranga City Council
[2022] NZHC 862
•29 April 2022
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2021-463-000055
CRI-2021-463-000058 [2022] NZHC 862
BETWEEN DANNY JOHN CANCIAN
First Appellant
THE ENGINEER LIMITED
Second AppellantBRUCE JOHN CAMERON
Third AppellantAND
TAURANGA CITY COUNCIL
Defendant
Hearing: On the papers Appearances:
W T Nabney for First Appellant
R J M Marchant / N A Speir for Respondent
Judgment:
29 April 2022
JUDGMENT OF LANG
[on appeal against sentence]
This judgment was delivered by me on 29 April 2022 at 3 pm.
Registrar/Deputy Registrar Date……………
Counsel/Solicitors:
W T Nabney, Tauranga G Allan, Wellington
M Beech, Tauranga
R Marchant, Auckland
N Speir, Rice Speir, Auckland
CANCIAN v TAURANGA CITY COUNCIL [2022] NZHC 862 [29 April 2022]
[1] In a judgment delivered on 28 March 2022 I dismissed Mr Cancian’s appeal against conviction on two charges laid under s 40 of the Building Act 2004 (the Act).1 These alleged that Mr Cancian had carried out building work otherwise than in accordance with building consents. The building consents in question had been issued in relation to dwellings to be constructed on two properties in a subdivision undertaken by Mr Cancian and his company, Bella Vista Homes Ltd. The charges on which I dismissed Mr Cancian’s appeal related to dwellings being constructed at 297 Lakes Boulevard and 5 Aneta Way.
[2] This judgment determines Mr Cancian’s appeal against sentence on those charges.
The charges
297 Lakes Boulevard
[3] The trial Judge had found Mr Cancian guilty on the charge relating to 297 Lakes Boulevard on two separate bases. Each had been pleaded as a particular allegedly giving rise to liability under s 40. First, the trial Judge held that Mr Cancian was the project manager responsible for supervising all building work carried out at this site. I found the Judge was entitled to find Mr Cancian guilty under this particular.2
[4] The Judge also determined that Mr Cancian was guilty because he had lodged a record of work with the Tauranga City Council. This confirmed he had supervised restricted building work carried out in relation to the foundations of the site in his capacity as a licensed building practitioner (LBP). I concluded that the filing of a record of work did not constitute building work for the purposes of a charge laid under s 40.3 I therefore determined that this particular could not lead to a finding of guilt.
1 Cancian v Tauranga City Council [2022] NZHC 556.
2 At [25].
3 At [34].
5 Aneta Way
[5] The Judge found Mr Cancian guilty on all the particulars relied upon by the Council in relation to 5 Aneta Way. These alleged breaches of the building consent in relation to the construction and alignment of boxed corners and failure to coat sawn timber with primer where it was exposed to the elements. The particulars also included the use of an incorrect type of nail on boxed corners.
[6] I dismissed the appeal against conviction in relation to all the particulars relied upon by the Council on this charge.
The appeal
[7] The Judge imposed a fine of $20,000 on each of the charges on which he found Mr Cancian guilty.4 Mr Nabney submits on Mr Cancian’s behalf that this was too high. He contends a starting point of between $10,000 and $15,000 should have been adopted in relation to the conviction on the charge relating to 5 Aneta Way. He submits the fine should be lower than this on the charge relating to 297 Lakes Boulevard because the Council has now succeeded in establishing just one particular rather than two as was previously the case.
[8] The respondent contends the fines the Judge imposed were within the available range.
Approach
[9] At sentencing counsel agreed that the decision of this Court in Wilson v Fowler continues to be the leading authority for offences under s 40 of the Act.5 This is despite the fact that the appeal in Wilson v Fowler related to sentences imposed for breaches of s 80 of the Building Act 1991, the predecessor to s 40 of the current Act.
[10] In Wilson v Fowler, the Court identified several relevant factors for fixing the appropriate sentence for offending of this type. These include the degree of culpability
4 Tauranga City Council v Cancian [2021] NZDC 7606 at [65].
5 Wilson v Fowler HC Auckland AP203/98, 16 March 1999.
including the duration and nature of the offending, the degree of harm or potential harm the offending has caused to personal safety and property, the defendant’s attitude toward the offending, the need for deterrence and the scale, permanency and purpose of the building work in question. The defendant’s financial circumstances will also be relevant.
Decision
297 Lakes Boulevard
[11] The sole particular on which Mr Cancian has now been convicted arises from the fact that the dimensions of foundation footings for a rear wall were different to those contained in the plans and specifications filed in support of the application for a building consent. These showed the dimensions of the footings as being 300 mm deep x 300 mm wide. When the footings were inspected, they were found to be 240 mm deep x 290 mm wide.
[12] The gravity of this offending flows from the fact that the footings supported a wall that was 2.8 metres high. The plans and specifications showed that this wall was supposed to be one metre high. The evidence established that a wall that is 2.8 metres high creates loads and stresses requiring cantilevered footings that are at least 1.3 metres (1300 mm) in width.
[13] I consider this breach of the building consent was inherently serious because the dimensions of the footings posed a threat to the integrity of the wall. However, Mr Cancian was not responsible for installing the footings. Another LBP, Mr Robert Gibson, accepted responsibility for doing so during the trial. Mr Cancian’s culpability lay in the fact that he was project manager at this site and in that capacity he ought to have recognised that the footings did not comply with the building consent. The Judge held that Mr Cancian’s offending fell at the end of the spectrum closer to negligence, or failing to take reasonable care.6
6 At [40].
[14] The Judge noted that other cases were of very limited value because in this area cases are very fact specific. After comparing Mr Cancian’s culpability to those in several other cases, however, the Judge adopted a fine of $20,000.
[15] I agree with the Judge that other cases are of little assistance in this context. The maximum penalty for breaching s 40 is a fine not exceeding $200,000. The fine the Judge selected was therefore just ten per cent of the available maximum penalty. I do not consider this was outside the available range given the basis on which the Judge was sentencing Mr Cancian.
[16] However, I consider the fine should be reduced to reflect the fact that Mr Cancian has been acquitted of offending involving a second particular. Any reduction must necessarily be modest because of the nature and potential consequences of the breach on which he was convicted. I therefore propose to reduce the fine imposed on this charge by 20 per cent.
5 Aneta Way
[17] Mr Cancian was the LBP responsible for the construction of the dwelling at 5 Aneta Way. The evidence established that he left much of the building work at the property to an apprentice, Mr Scott. However, as LBP Mr Cancian was responsible for supervising Mr Scott’s activities and he obviously failed to do so to the required degree.
[18] There are no comparable sentencing authorities. However, given the number, nature and scope of the identified defects I do not consider a fine that equates to ten per cent of the available maximum can be said to be manifestly excessive.
Result
[19] The appeal against sentence on the charge relating to 297 Lakes Boulevard is allowed. The fine of $20,000 imposed on that charge is quashed and replaced by a fine of $16,000. I make a direction under s 389 of the Building Act 2004 that 90 per cent of the fine is to be paid to the Tauranga City council.
[20]The appeal against sentence on the charge relating to 5 Aneta Way is dismissed.
Lang J
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