Fan v The Queen

[2017] NZCA 41

IN THE COURT OF APPEAL OF NEW ZEALAND

CA199/2016
[2017] NZCA 41

BETWEEN	DA JIANG FAN Appellant
AND	THE QUEEN Respondent

Hearing:	16 February 2017
Court:	Wild, Simon France and Duffy JJ
Counsel:	Appellant in person B D Tantrum and D J Collins for Respondent
Judgment:	3 March 2017 at 2.30 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

1. Mr Fan appeals his conviction and sentence following a jury trial on a charge of failing to comply with an abatement notice.  The charge related to a garage Mr Fan constructed at the front of his property.  He was fined $30,000 and ordered to remove the garage.[1]

   [1]Auckland Council v Fan [2016] NZDC 7194.

2. In 2009 Mr Fan sought resource consent for a development at the back of his residential property.  It was declined and he unsuccessfully appealed to the Environment Court.[2]  The development involved, in part, relocating the existing garage at the back of the property to the front.  Mr Fan decided to do that part of the project anyway.

   [2]Fan v Auckland Council [2011] NZEnvC 36.

3. Council officers visited the property on many occasions.  Each time Mr Fan was told he was not permitted to do that which he obviously was doing.  A notice to stop was served but Mr Fan persisted and eventually the garage was built.  Building consent was not sought.  The structure breaches the District Plan.[3]

   [3]City of Auckland Operative District Plan 1999 (Isthmus Section), r 7.8.1.7A.

4. Mr Fan filed copious documentation on the appeal but matters boil down to two substantive points of interpretation concerning the District Plan.  Both concern whether Mr Fan has erected a building.  First, Mr Fan says it is not a building but rather is an “accessory building” and therefore not caught.[4]  Second, if it is a building, Mr Fan contends he comes within an exception to the definition of “erection of a building”.

   [4]See the definitions in pt 13 of the District Plan.

5. Concerning the accessory building point, the answer is that nothing in the District Plan prevents a structure from coming within more than one definition.  The concepts of accessory building and building are not exclusive.  Further, there is nothing in the definition of building which excludes accessory buildings (which plainly from the label are themselves buildings).

6. The second point concerns the definition of “erection of a building”.  It excludes:[5]

   prefabrication of a building or part of a building on a site within the district where such building or part of a building will not be used as a place of residence, business, or for storage purposes on that site.

   [5]See pt 13 of the District Plan, at A5.

7. It is not particularly clear why Mr Fan thinks he comes within this exception.  Although there was an existing garage onsite, Mr Fan has built new foundations and a substantial structure.  The definition of “erection of a building” expressly includes the re‑erection of a building.  It is not a prefabricated building, and it is also a building used for storage.  The exception is inapplicable.

8. There is no merit in either interpretation point.  Mr Fan is aggrieved because there are properties in the neighbourhood which have garages in a similar location and he considers he is not being treated equally.  However, Mr Fan did not even apply for a building consent, let alone be denied one.  The circumstances of those other properties are not known, and are anyway irrelevant.  For completeness we note Mr Fan in his introductory comments advanced the proposition that relocating a building within the same site falls outside the District Plan rules.  To the extent that has not been addressed, we observe it is plainly incorrect.  As has been noted, re‑erection on the same spot is caught; even more so then, relocation is covered.

9. Mr Fan’s only submission in support of his sentence appeal was that he was not guilty.  The sentence is in our view appropriate.  Mr Fan chose to ignore numerous warnings and do what he considers he should be entitled to.  His was a deliberate breach.

10. The appeals against conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent