Karmarkar v Auckland Council - [2025] NZHC 1285

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2884

[2025] NZHC 1285

BETWEEN
MADHAV HARI KARMARKAR

Appellant

AND

AUCKLAND COUNCIL

Respondent

Hearing: 9 April 2024

Appearances:

M Karmarkar, self-represented Appellant RJ Russ and SK Choy for Respondent

Judgment:

9 April 2025

ORAL JUDGMENT OF BECROFT J

Solicitors:
Auckland Council

Copy to: Mr Karmarkar

KARMARKAR v AUCKLAND COUNCIL [2025] NZHC 1285 [9 April 2025]

What this appeal is about

[1] On 31 May 2024, Mr Madhav Hari Karmarkar was issued with an abatement notice requiring him to cease operating a boarding house on his property.1

[2] Auckland Council compliance officers had earlier visited the property and found it was being operated as a “boarding house”.

[3] Operating a boarding house with more than 10 occupants without a resource consent contravenes the provisions of the Auckland Unitary Plan (Operative in Part) (“Plan”). There is no consent, at present, to operate a boarding house on the property.

[4] Mr Karmarkar appealed the issuing of the abatement notice to the Environment Court.2 The key issue on appeal was whether the property was being operated as a boarding house.3 In a thorough decision, the Environment Court found that the property was being operated as a boarding house for more than 10 occupants and confirmed the abatement notice.4

[5]Mr Karmarkar now appeals that decision to the High Court.

Legal principles

[6] Appeals from the Environment Court to the High Court are limited to questions of law.5 Accordingly, as is now well established, the High Court will only allow appeals if it considers that the Environment Court applied a wrong test; took irrelevant considerations into account; failed to take into account relevant considerations; or came to a conclusion which it could not reasonably have come to.6

1      At 37a Hayr Road, Three Kings Auckland, referred to as “the property”.
2      See Karmarkar v Auckland Council [2024] NZEnvC 253.
3 At [64].
4 At [71].
5      Resource Management Act 1991, a 299(1).
6      See Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153; Transpower New Zealand Ltd v Auckland Council [2017] NZHC 281 at [52]; and Taranaki- Whanganui Conservation Board v Environmental Protection Authority [2018] NZHC 2217, [2019] NZRMA 64 at [22]–[23].

Law and definitions

[7] The property in this case is zoned “Residential—Mixed Housing Urban Zone.” A rule relating to that zone provides for boarding houses accommodating greater than 10 people per site, inclusive of staff and residents, as a restricted discretionary activity.7 Without a resource consent, which has not been obtained here, such an activity is in contravention of the Plan and the Resource Management Act 1991.8

[8] Boarding house is defined in the Plan as having the same meaning as in s 66B of the Residential Tenancies Act 1986 (RTA) which provides:
boarding house means residential premises—
(a)containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and
(b)occupied, or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 1285
Decision Date: 9 April 2025

CaseChat Overview and Summary

Madhav Hari Karmarkar has appealed against the decision of the Environment Court that confirmed an abatement notice issued by the Auckland Council, requiring him to cease operating a boarding house on his property. The appeal hinges on the interpretation of the definition of "boarding house" under the Auckland Unitary Plan and the Resource Management Act 1991. The central issue before the court was whether the property was being operated as a boarding house for more than 10 occupants without the required resource consent.

The court examined the criteria for defining a "boarding house" and a "household unit" based on several precedents. These criteria included the number of people involved, the nature of their relationship, the duration of their stay, and the commercial versus domestic purpose of the arrangement. The court noted that the Environment Court had correctly applied these principles to the facts of the case, finding that the property was being operated as a boarding house due to the high intensity of use, the commercial nature of the tenancy agreement, and the lack of social cohesion among the occupants.

Karmarkar argued that the Environment Court had applied the wrong standard of proof and had not properly considered the tenancy agreement. However, the court found that the Environment Court had correctly applied the standard of proof on the balance of probabilities and had properly considered the tenancy agreement, concluding that it reflected a commercial arrangement rather than a domestic one. The court held that the appeal was not based on a question of law but on factual disagreements with the Environment Court's findings, which are not reviewable on appeal.

The court dismissed the appeal and ruled that the stay on the abatement notice should be discontinued in 14 days. Costs were awarded against Karmarkar on a scale 2B basis, with an opportunity for him to make written submissions on the issue of costs within 14 days.

Orders