Fairley v Auckland Council (Formerly the North Shore City Council)

[2012] NZHC 2782

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-404-000408 [2012] NZHC 2782

IN THE MATTER OF     the Building Act 2004

AND

IN THE MATTER OF      an application for leave to appeal under s

144 of the Summary Proceedings Act 1957

BETWEEN  DONALD SAMUEL FAIRLEY Applicant

ANDAUCKLAND COUNCIL (FORMERLY THE NORTH SHORE CITY COUNCIL) Respondent

Hearing:         23 October 2012

Appearances: Applicant in Person with McKenzie Friend

S Masoud-Ansari for Respondent

Judgment:      24 October 2012

JUDGMENT OF VENNING J

on application for leave to appeal

This judgment was delivered by me on 24 October 2012 at 1.00 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Simpson Grierson, Auckland

Copy to:            Appellant

FAIRLEY V AUCKLAND COUNCIL HC AK CRI-2008-404-000408 [24 October 2012]

[1]      The applicant, Mr Fairley, seeks leave to appeal to the Court of Appeal from a decision of this Court delivered on 4 May 2009.

Background

[2] Following a defended hearing in the District Court Mr Fairley was convicted on three charges under the Building Act 2004, namely:

wilful obstruction of a person exercising a power under the Act (building

inspectors), (s 367(1) of the Building Act);

failure to comply with a notice to fix, (s 168(1));

carrying out building work without a permit (s 40(1)).

Mr Fairley was fined $29,000 in total.

[3]      Mr Fairley’s appeal against conviction and sentence was dismissed by this

Court in a judgment delivered on 4 May 2009.

[4]      On 17 August 2012 Mr Fairley filed a notice with this Court seeking leave to appeal out of time. The grounds on which leave was sought are:

(a) there was no breach of the Building Act as his actions did not require a building consent;

(b)the North Shore City Council (the Council) was not accredited by the Department of Building and Housing at the time of his alleged offending and at the time the Council took action against him.

The application was said to be made in reliance on the Building Act: s 40(1) and s 192(1)(a).

[5]      The application is substantially out of time.   Section 144 of the Summary Proceedings Act 1957 provides for a second appeal to the Court of Appeal with leave of this Court, on a question of law.  However s 144(2) provides that such application is to be made within 21 days of the High Court decision.  The time for making the application in this case expired on 25 May 2009.

[6]      Mr Fairley has put no evidence before the Court to explain his delay in making the application.  During the course of his submissions he said the application was delayed because he had only recently (on 27 May 2011) obtained a letter from the Department of Building and Housing which disclosed the Council gained accreditation under the Act on 14 December 2007.   He says the Council did not provide him with the information.   He relies on that letter to support the second ground of appeal.

[7]      A number of points arise out of that explanation.  First, there is no evidence before the Court of the attempts Mr Fairley made to obtain the information from the Council prior to that date.  Next, this was a point that Mr Fairley had noted in his ground of appeal to this Court but he did not pursue it on that appeal.   The “new information”, to the extent that it can properly be said to be new information, was obtained by him on 27 May 2011.  There is no evidence from Mr Fairley as to what steps he took after he obtained the letter.  The Court file discloses that he did write to the Court attaching a copy of the letter in July 2011 but in a minute issued on 12 July

2011 this Court directed Mr Fairley to the provisions of s 144 of the Summary Proceedings Act 1957.  He was advised his letter was inadequate and that a formal application would be required.   There is no evidence to explain why it took Mr Fairley until 17 August 2012 to make the formal application.  Finally, the point has no relevance to his first ground of appeal.

[8]      Even if it had been within time, the application fails to meet the test for leave in any event.  Before leave can be granted the following elements must be made out:

(a)       there must be a question of law;  and

(b)the question must be one which by reason of its general and public importance or any other reason ought to be submitted to the Court of Appeal;  and

(c)       the Court must be of the opinion that it ought to be so submitted.

[9]      The first issue Mr Fairley seeks to raise is not a question of law.  He seeks to revisit questions of fact that were determined against him by both the District Court and this Court, namely whether the scope of his building work was such as to require a building consent. The first requirement is not met.

[10]     Nor does the second point Mr Fairley raised satisfy the criteria for leave.

[11] Mr Fairley’s argument is that, at the time of his offending, the Council was not accredited under the Building Act. He says it had no authority to issue building consents. He submitted if it was not accredited it was not authorised to issue building consents and its officers, who were dependent on the authority of the Council, had no authority either.

[12]     Mr Fairley relies on s 40 and s 192.  Section 40 provides for the requirement for a building consent.   Section 192 provides for the criteria for registration as a building consent authority.   To be registered the applicant must be accredited and meet the prescribed criteria and standards for registration.

[13] The answer to Mr Fairley’s argument lies in the provisions of the Building Act itself. Section 12 provides for the role of building consent authorities and territorial authorities. Section 12(2) provides that a territorial authority such as the Council:

(a)       performs the functions of a building consent authority set out in subsection (1)(a) (including the issue of building consents subject to a waiver or modification of the building code) if—

(i)       the  territorial  authority is also  a  building consent authority; and

(ii)      an  owner  applies to the territorial authority for a building consent;

...

(i)       decides the extent to which buildings must comply with the building code when—

(i)       they are altered; or

(ii)      their use is changed; or

(iii)     their specified intended life changes; and

...

(k)      carries out any other functions and duties specified in this

Act; and

(l)        carries out any functions that are incidental and related to, or consequential  upon,  the  functions  set  out  in  paragraphs (a) to (k).

[14]     Next, s 212 of the Act provides that a territorial authority such as the Council must act as a building consent authority for its district.  Section 215 then provides that, for the purpose of ensuring compliance with s 212 the territorial authority must apply for, and gain, accreditation and also apply, and be registered as, a building consent authority.  Registration follows accreditation.

[15] There are thus two separate, but related, concepts under the Act, accreditation, and registration. It is necessary to be accredited to become registered as a building consent authority. A person who is registered as a building consent authority may carry out the functions of such an authority but only to the extent of that person’s scope of accreditation. The Building Act provides for private organisations to apply for accreditation. In the case of a council the accreditation will generally be “full” and unrestricted. The position may, however, be different in the case of a private organisation.

[16]     The distinction between registration and accreditation is set out in s 193:

193     Effect of registration

(1)       A person whose name is entered in the [register of building consent authorities  may  perform  the  functions  of  a  building  consent authority] under this Part and Part 2.

(2)       However, a person whose name is entered in the register of building consent authorities but who is not a territorial authority [or a regional

authority] may perform only those functions that correspond with, or are within, the person's scope of accreditation.

[17]     A transitional provision, s 450, provides a period during which the territorial authority may act as a building consent authority even though it has yet to gain accreditation and become registered.   The section provides the transitional period runs from the date of commencement of Part 2 of the Act (31 March 2005) and ends the earlier of the date on which the application for registration by the territorial authority was granted or refused, or 31 March 2009.

[18]     In the present case the Council was accredited on 14 December 2007.   It would have been registered shortly after.  The Council could not become registered as a consent authority until it obtained the accreditation.  However, until it obtained that accreditation and whilst its application for registration was pending, the transitional  provision  applied.    The  transitional  period  covers  the  period  during which the unauthorised work was carried out by Mr Fairley, which occurred in September and October 2006.

[19]     The matter that Mr Fairley seeks to raise is answered by the provisions of the

Building Act. It does not raise any arguable point of law.

[20] Further, in the present case, I accept the alternative submission made on behalf of the Council that, prior to its accreditation and registration, the actions of the Council in this case arose in the exercise of its regulatory authority for which accreditation was not necessary under the Building Act. The actions of the officers which underlay the charges were in relation to inspection and enforcement, and were covered by s 12(2) of the Building Act.

Summary

[21]     The applicant has failed to adequately explain his substantial delay in seeking leave to appeal out of time. The first point of law the applicant seeks to raise is not a question of law.  The second point is not a question of law of general or particular importance.  Neither are questions which the Court of Appeal should be troubled by.

Result

[22]     The application for leave is dismissed.

Costs

[23]     At the request of counsel I reserve the issue of costs.  The Council are to file and serve any submissions by 1 November 2012.   Mr Fairley is to file any submissions in writing in response by 8 November 2012.  I will then deal with the

issue of costs on the papers.

Venning J