Karmarkar v Auckland Council
[2025] NZHC 1285
•9 April 2025
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 intended by the landlord to be occupied, by at least 6 tenants at any one time
[9] The RTA also defines “boarding room” and “facilities” which, as noted in Karmarkar v Pendem,9 reveals some circularity in these definitions as the two definitions of boarding house and boarding room refer back to each other.
[10] Household10 is not defined in the Plan but there is a definition of “dwelling” in Chapter J1 of the Plan which is based on a single household unit:
Dwelling
Living accommodation used or designed to be used for a residential purpose as a single household residence contained within one or more buildings and served by a food preparation facility/kitchen.
A food preparation facility/kitchen includes all of the following:
(a)means for cooking food, food rinsing, utensil washing and wastewater disposal; and
(b)space for food preparation (including a suitable surface) and food storage including a refrigerator or a perishable food storage area capable of being cooled.
7 Auckland Unitary Plan: Operative in Part, at H5.4.1(A12).
8 Resource Management Act, s 9(3).
9 Karmarkar v Pendem [2018] NZHC 693, (2018) 19 NZCPR 636.
10 Used in contradistinction to “boarding house”.
[11] The meaning of “boarding house” and “household unit”, which are key to this case, have been considered in several decisions under the Rating Powers Act 1988 (since repealed), the RTA and the Building Act 2004.
[12] As was noted by the Environment Court, although there is a somewhat different context in this appeal, there are nonetheless common threads as to interpretation of the relevant definitions.
[13] There are three cases referred to by both Mr Karmarkar and Auckland Council which are particularly relevant. The first is Hopper Nominees v Rodney District Council where the High Court considered the meaning of “household” used in s 30(2) of the Rating Powers Act 1988 to limit the incidence of sewerage charges in the following terms:11
For the purposes of s 30(2) the term “household” takes its ordinary meaning in common usage in this country. When considering whether the subsection applies in any particular case an appreciation of the connotations of the term “household” in the context of the subsection will be of more practical use than an abstract definition. In any particular case it will be necessary for the features of the arrangement being examined to be considered in terms of consistency or inconsistency with the connotations of domestic residence of a family or a group living in a situation analogous to a family, such as a group of intimate acquaintances, friends or flatmates jointly residing in a house or flat. Institutions of a commercial or public nature whose services or functions include the provision of accommodation, or board and accommodation, such as boarding houses, rest homes, hospitals, boarding schools and prisons, do not, in common usage […] come within the scope of the term “household”.
[14] Second, in The Wanaka Gym Limited v Queenstown Lakes District Council12 the High Court was dealing with an application for leave to appeal from a decision of the District Court dealing with offences under the Building Act. A key issue was whether the building was used as “visitor accommodation” or as a “dwelling house” for use as a single household unit. This involved consideration of the definition of “household unit” in s 7 of the Building Act which provides:
household unit—
(a)means a building or group of buildings, or part of a building or group of buildings, that is—
11 Hopper Nominees v Rodney District Council [1996] 1 NZLR 239 at 243.
12 The Wanaka Gym Limited v Queenstown Lakes District Council [2012] NZHC 2662.
(i)used, or intended to be used, only or mainly for residential purposes; and
(ii)occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household; but
(b)does not include a hostel, boardinghouse, or other specialised accommodation
[15] The High Court also quoted with apparent approval the following factors identified by the District Court to assist in the determination of whether a building could properly be described as a dwelling for use as a single household unit:13
It seems to me in this case the following factors are relevant:
(a)there is considerable variance in the numbers at any given time;
(b)there are large numbers of people involved in the occupation of the building;
(c)there is a significant degree of restriction as a matter of contract on the freedoms of the occupant which is inconsistent with people being resident in a household;
(d)the relatively short term of the residence;
(e)the fact that there is no necessary connection with the others residing in the house;
(f)there is no agreement of the residents to reside together;
(g)the whole raison d’ȇtre of the building essentially is commercial rather than domestic.
[16] Finally, there is the case of Karmarkar v Pendem14 involving, as it happens, the very same Mr Karmarkar who is the appellant in this appeal. The High Court had to determine whether the tenancy agreement for a residential establishment that Mr Karmarkar operated was a boarding house tenancy under the Act. The High Court suggested that it was possible to make sense of the various definitions and concepts of “boarding house”, “boarding house tenancy”, and “boarding room” by asking the following questions:15
(a)Does the house contain one or more bedrooms along with facilities for communal use by the tenants?
13 At [29].
14 Above n 9.
15 At [34].
(b)Is the house occupied or intended to be occupied by 6 or more tenants?
(c)Is the tenancy intended to, or does in fact, last for 28 days or more?
(d)Are tenants granted exclusive rights to occupy particular bedrooms, whether that occupancy is for single or shared use?
(e)Does the right to occupy a particular bedroom derive from the tenancy agreement between the individual tenant and the landlord rather than from the collective decision of the tenants?
[17] The Court acknowledged that those criteria, as set out, were not exhaustive and that effective analysis was very much a fact-specific exercise.
[18] I accept the conclusion of the Environment Court in the decision under appeal that the following common elements are encompassed in the meaning of “household unit” or “dwelling”:
(a)a family unit related by blood or marriage, civil union or de facto relationship; or
(b)a small group of people who are unrelated but agree to share a dwelling and have a relationship of a domestic nature with social cohesion, such as friends sharing a flat together; and
(c)where the raison d’ȇtre of the dwelling is domestic rather than commercial.
[19] That is a brief summary of the law and relevant legal principles that arise for consideration and application in this case as to whether the property was being operated as a boarding house for more than 10 people without resource consent.
The Environment Court decision
[20] As this is an appeal on a matter of law, it is important to briefly summarise the Environment Court decision. The first thing to say is that the Court set out the relevant
definitions which were well discussed and developed in the context of the three cases that I have just discussed.
[21] The Environment Court then applied those legal principles to the facts in this case. It clearly set out that the key issue was whether the property was being operated as a boarding house for more than 10 people. I agree with Ms Russ, who was well assisted by Ms Choy, that effectively the Environment Court was presented with binary options—that is, was the property a boarding house? If it was not, then effectively it must be seen as akin to a dwelling house/household.
[22] The Environment Court put to one side the existence of a resource consent to subdivide the property and to construct four dwellings. And in the same way, considered the existence of a building consent for three dwellings on the property as being irrelevant. The Court emphasised that the key issue concerns the current use of the property in its existing form.
[23] In summary, the Court concluded that the intensity of use of the building pointed strongly in the direction of it being a boarding house. The Court accepted the submission that the larger the number of people living in a building, “the less likely that they are living as a family or as flatmates and the less chance for an atmosphere of trust and harmony that would lead to social cohesion”. The Court found in this case that use by 17 or 18 occupants in a single house with limited communal space, pointed to very high intensity.
[24] Further, the living arrangements with locked rooms and multiple kitchen and bathroom/laundry facilities are those of a boarding house rather than a dwelling for a single household unit or dwelling.
[25] The Court concluded that the agreement, said to be a tenancy agreement between a Mr Baby, as the head tenant, and 16 “flatmates”, appears to be an agreement to share the premises and a set of rules for occupancy on a commercial basis rather than a shared domestic occupancy. And the Court observed that there was no evidence from Mr Baby or any of the tenants.
[26] In short, the Environment Court was satisfied on the balance of probabilities that the operating arrangements at the property were commercial rather than domestic.
Mr Karmarkar’s appeal grounds discussed
[27] Mr Karmarkar raises a number of arguments on appeal. He essentially contends that it was “not established beyond reasonable doubt” that the occupants of the property did not form a single household or, put another way, he contended that it had not been established “beyond reasonable doubt” that the property in question “is indeed used as a boarding house by clearly exhibiting characteristics discernible from 66A to 66Y of the Residential Tenancies Act.”
[28] I observe that Mr Karmarkar sets the standard of proof much too high. He refers to the criminal standard of beyond reasonable doubt. In fact, the standard, as noted by the Environment Court, is on the balance of probabilities. It was that standard that applied and that was the standard which was clearly and correctly applied by the Environment Court.
[29] Mr Karmarkar submits there is no evidence to suggest there is not familial domesticity between the occupants. In particular, Mr Karmarkar is concerned that the Environment Court did not look at what, he says, is a tenancy agreement that he produced in evidence between the “head tenant” and the “flatmates” which contained a “sharing agreement”.
[30] It is quite clear that the Court was well aware of that agreement—although not produced by any of the parties to it. What the Environment Court said in respect of that agreement is as follows:16
The submissions of Mr Karmarkar as to his arrangements with Mr Baby do not satisfy us that the living arrangements are those of a flat or other type of communal sharing of a dwelling. It does not appear that Mr Baby lives at the Property. Instead, he appears to be Mr Karmarkar’s manager of the Property. The agreement to share the premises appears to be a set of rules for occupancy on a commercial basis rather than a shared domestic occupancy.
16 At [69].
[31] Self-evidently, the Court addressed the very issue of the “tenancy agreement”. In the Court’s view, the substance of that agreement was that it set out rules for occupancy on a commercial basis rather than shared domestic occupancy.
[32] Mr Karmarkar was adamant the agreement was in a standard form; that it did constitute a “flatmate-type” agreement; and was reflective of domestic arrangements and shared occupancy between a wide number of Indian students all originating from the state of Kerala. The Environment Court noted that they did not give any evidence of their own pre-existing friendship or the like. The Court noted that Mr Karmarkar referred to the arrangement as a “hostel situation” but had submitted that the co-tenants lived together for a study year, were friendly and were from the same village. The Court was well aware of Mr Karmarkar’s submission and his views.
[33] The Court certainly took account of all the factual matters and, in my view, properly applied them. Understandably, the Court was particularly influenced by the intensity of use and the living arrangements which included locked rooms, with multiple kitchen, bathroom and laundry facilities. All this, in the Court’s view, despite the so-called “agreement” between the “head tenants” and the “flatmates” pointed towards commercial rather than domestic use and satisfied the definition of boarding house.
[34] In essence, the clear inference to be drawn from the Court’s decision is that the Court did not accept that 16 “flatmates” were a small group of people who had agreed to share a dwelling and have a relationship of a domestic nature with social cohesion such as friends sharing and flatting together and that the raison d’ȇtre of the dwelling was domestic, not commercial. In other words, the Environment Court, on the facts of this case, concluded that this was no household unit or dwelling, but it was effectively a commercial arrangement between a head tenant and 16 unrelated students visiting New Zealand for a year.
[35] I have set all that out in some detail because, in my view, Mr Karmarkar’s submissions focussed largely on factual matters—not matters of law as is required on appeal.
[36] On the issue of “a question of law”, Mr Karmarkar submitted that the Court had either not followed, or not properly considered, the previously discussed cases of Karmarkar and The Wanaka Gym Ltd. In my view, those principles were well understood and applied by the Environment Court. There was no failure to take into account any relevant legal provision, neither was any legal provision ignored. Any analysis of whether a property is a boarding house will be multi-factorial. It will be intensely fact specific and the conclusion the Environment Court reached was based on that very approach. I do not accept Mr Karmarkar’s submission that the Court failed to consider the nature of the written agreement. Clearly it did and it reached a conclusion about it that was unfavourable to Mr Karmarkar.
[37] The Environment Court did not say this, but when I read the agreement, it is certainly open to conclude that it is a device or a mechanism to get around the provisions of the Plan and the definition of a boarding house. That was not a conclusion that the Environment Court reached. It simply said, that as one of number of factors, the agreement to share the premises simply spoke to a commercial arrangement rather than shared domestic occupancy.
[38] In my view, in the appeal as formulated by Mr Karmarkar, there is no question of law, as that well known legal concept is understood, that arises. In the end, Mr Karmarkar’s concerns are entirely matters of fact and the factual application in this case to the agreed law.
[39] I note that Mr Karmarkar wishes to give evidence that his situation has changed since the Environment Court’s decision and that the property is being worked on to comply with the approved consent. He says the number of people occupying the property is now seven.
[40] On that point, I agree with the Council’s submission. Potential changes to the existing situation are irrelevant to this appeal. I must determine the appeal on the facts and evidence that were before the Environment Court at the time. I put those matters raised by Mr Karmarkar to one side.
Conclusion
[41] “Matters of law” is a concept with a settled meaning which I have already set out. Parliament has chosen to restrict appeals from the Environment Court to only these matters. That must be taken as intentional. The Environment Court is a specialist court with specialist knowledge and can apply that specialist knowledge to the facts of a case. Putting it bluntly, an appeal will only lie if the Environment Court gets the law wrong.
[42] Appeals from an Environment Court are not a second look at the facts. They are not akin to a right of general appeal where appeals are conducted as a re-hearing with no assumption that the decision being appealed against is right.
[43] I conclude that Mr Karmarkar has attempted to “dress-up” his appeal as being a matter of law. But no amount of packaging or disguise can turn what were quintessentially factual matters into matters of law.
[44] In short, I conclude that the correct legal tests were comprehensively set out by the Environment Court. Mr Karmarkar does not dispute that. Applying those legal tests to the facts is where Mr Karmarkar takes issue with the Environment Court. But that is what the Environment Court’s task is. Its assessment of the facts is essentially final. There is no appeal on any question of fact unless, for instance, the conclusion on the facts is one on which no court could reasonably have come to. This is certainly not the case here. Mr Karmarkar’s appeal must fail. I therefore dismiss it.
“Stay” discontinued after 14 days
[45] I also address the issue of the stay of the abatement notice. Counsel for the Council ask that the stay be discontinued in 14 days’ time which is 5.00 pm on 23 April 2025. I so order.
Costs
[46] As to costs, in the ordinary course, costs follow the event. The party which is not successful bears the cost. Costs should be paid on a scale 2B basis. Mr Karmarkar
if you do not agree that you should pay costs, or want to make further submissions, you have 14 days from today to make written submissions as to whether you should pay costs. If those submissions are filed within 14 days, then the Council has 14 days to respond in writing. Those submissions should be no longer than three pages.
[47]I can say no more. The decision speaks for itself.
[48] In short, Mr Karmarkar you are caught by your very limited appeal rights which are on a question of law only and I hold there is no question of law. If there was such a question of law which I just cannot see, on what has been presented to me, it certainly is one that I rule in favour of the Council.
Becroft J
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