Kidd v Southland District Council
[2025] NZHC 2120
•31 July 2025
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2024-425-54
[2025] NZHC 2120
BETWEEN CHARLES EDWARD FRANCIS KIDD
Appellant
AND
SOUTHLAND DISTRICT COUNCIL
Respondent
Hearing: 28 July 2025 Appearances:
M B Brownlie for Appellant
S M Chadwick for Respondent
Judgment:
31 July 2025
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 31 July 2025 at 12.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
KIDD v SOUTHLAND DISTRICT COUNCIL [2025] NZHC 2120 [31 July 2025]
Introduction
[1] Charles Kidd (now aged 84) pleaded guilty to one charge of failing to comply with an abatement notice.1 On 29 October 2024, Judge Steven KC in the Environment Court at Invercargill sentenced Mr Kidd to a $17,500 fine.2 Mr Kidd appeals on the grounds the Judge erred by refusing to give a deduction for remedial works undertaken and in not applying a deduction for totality, making the end sentence manifestly excessive.
Facts of the offending
[2] The charge of failing to comply with an abatement notice concerns two large ex-classroom buildings in poor condition that were placed on Mr Kidd’s property at 55 Church Street, Winton, in 2019, in breach of rules in the Southland District Plan.
[3] Staff from the Southland District Council (the Council) initially engaged with Mr Kidd directly to seek compliance. The first abatement notice was not issued in respect of the 55 Church Street property until 9 September 2020. Further discussions with Mr Kidd about this breach followed (and about other issues of non-compliance on other properties he owns around the Church Street cul-de-sac). During one of these meetings Mr Kidd requested clarification of the first abatement notice. In response, the Council withdrew it and issued a second abatement notice on 4 March 2021. The second notice included additional wording to clarify the applicable plan rules he had breached but required the same outcome being that the two buildings were to be removed from 55 Church Street by 5 pm, 4 May 2021.
[4] The buildings remained on the site for a period of one year after the Council first identified the plan breach, for a further six months after the first abatement notice was issued, and then for a further three and half years after the second abatement notice was issued. The buildings were finally removed shortly before the sentencing hearing in October 2024.
1 Resource Management Act 1991, ss 338(1)(c), 339(6) and 340; maximum penalty two years’ imprisonment or $300,000 fine, and, in the case of a continuing offence, a further fine not exceeding $10,000 for every day or part day the offence has continued.
2 Southland District Council v Kidd [2024] NZDC 26549.
Environment Court decision
[5] The Judge referred to several comparator cases, and with these in mind, she set the starting point at $25,000. This was not disturbed when consideration was had to Mr Kidd’s conviction history.3 The Judge considered totality, but ultimately found this was not an appropriate case for a totality deduction given the current charge was sufficiently different to the other charges under the Building Act 2004 that Mr Kidd had recently been sentenced on.
[6] Turning to mitigating factors, the Judge adopted a five per cent deduction for Mr Kidd’s formal, albeit late, engagement of a building compliance professional. A further five per cent deduction was afforded for Mr Kidd’s age, and 20 per cent was given for his guilty pleas. The Judge declined to provide a deduction for compliance with the abatement notice. This resulted in an end sentence of $17,500 as well as an order to pay Court costs.
Principles on appeal
[7] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 As the Court of Appeal observed in Tutakangahau v R, with reference to the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.5 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.6
3 Mr Kidd has two convictions related to discharge of a contaminant and breach of restrictions on use of a lake or riverbed, a 2023 conviction for failing to comply with an enforcement order and two convictions in 2024 for breaches of the Building Act.
4 Criminal Procedure Act 2011, ss 250(2) and 250(3).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
6 Ripia v R [2011] NZCA 101 at [15].
Submissions
Appellant’s submissions
[8] Mr Brownlie, for the appellant, submits the Judge erred by not giving a deduction for remedial works undertaken. He relies on Thurston v Manawatu- Wanganui Regional Council7 for the proposition that while the starting point must be that a defendant gets no credit for belated compliance with their environmental obligations, a reduction may be appropriate where the culpability is low and the remedial works both remedy the environmental harm and demonstrate a full acceptance of responsibility.
[9] Mr Brownlie highlights several factors to submit this is such a case. First, he submits the appellant’s culpability is low because the appellant did not deliberately disregard the abatement notice. Second, compliance was difficult to achieve as removal of the buildings was dependent on obtaining approval from the Council to move the buildings to an alternate location and then arranging for transportation and placement. Third, the appellant was initially advised that resource consent was required to relocate the buildings but through later negotiation and discussion with the Council, the parties agreed a resource consent was not required. Fourth, removing the buildings fully achieved compliance with the abatement notice and there was no additional impact to the environment caused by the delay. Finally, the appellant did not financially benefit from his late compliance with the abatement notice.
[10] In these circumstances, Mr Brownlie submits a 10 per cent deduction should have been given to incentivise compliance.
[11] Mr Brownlie also submits that a deduction should have been applied to reflect the totality principle. The appellant faced two other charges in the same period, being for permitting the use of 54 Church Street without a certificate for public use8 and failing to comply with a notice to fix issued to 50 Church Street9 (the Building Act charges).
7 Thurston v Manawatu-Wanganui Regional Council [2010] ELHNZ 384 at [67].
8 Building Act 2004, s 363(1); maximum penalty $200,000 fine.
9 Section 168; maximum penalty $200,000 fine.
[12] Originally, on application by the Council, both the RMA charge and the Building Act charges were considered sufficiently connected to be heard together. However, when the appellant elected trial by jury for the RMA charge, the Council applied, instead, to sever the charges. Mr Brownlie submits the original position of the Council confirmed their view that all matters were sufficiently related in time and circumstance to be heard together. He submits that had the charges been heard together, totality principles would have been applied at sentencing and a reduction applied.
[13] In support of this submission, Mr Brownlie relies on Banora v Auckland Council10 and Auckland Council v Li11 where separate fines were imposed for Building Act and RMA charges but, when considering totality, the Court reduced the global starting point to reflect the factual overlap between the offending.
[14] Here, the Building Act charges have been sentenced separately and resulted in a global starting point of $40,000 which was reduced to $32,000 following a 20 per cent deduction for guilty pleas.12 Mr Brownlie submits that given the overlap in the time period in which the events giving rise to the charges occurred, and the similar nature of the charges (being non-compliance with regulatory requirements), had they all been sentenced at the same time, a totality deduction would have been considered and the sentence for the RMA charges would not have exceeded a $15,000 starting point.13
Respondent’s submissions
[15] Ms Chadwick, for the Council, submits the starting point was within the available range for a breach of abatement notice offence, and the end sentence of
$17,500 was not manifestly excessive, but was well within the range of fines for
10 Banora v Auckland Council [2019] NZHC 2545.
11 Auckland Council v Li [2025] NZDC 11376.
12 Southland District Council v Kidd [2024] NZDC 19006.
13 I note the submissions refer to both a $10,000 and a $15,000 starting point to account for totality, but I consider the latter was intended as, with deductions, Mr Brownlie submits the end sentence should have been $9,000.
comparable offending. In advancing that submission she refers to several cases where the specific fines for comparable RMA charges ranged from $11,361.74 to $33,000.14
[16] Ms Chadwick submits the Judge followed the correct sentencing process and that the deductions given for the appellant’s age and guilty plea were generous in the context of the appellant’s record of recent offending against regulatory legislation. She also notes that the deductions sought on appeal exceed those sought at sentencing.
[17]Addressing the specific appeal points, she submits:
(a)there is no factual overlap between the RMA charge and the Building Act charges that would justify a totality adjustment to the starting point;
(b)breaching an abatement notice is a sufficiently serious offence to warrant the application of a separate and unadjusted starting point;
(c)no deduction is available to the appellant for actions taken after a period of three and a half years to stop contravening an abatement notice and the RMA; and
(d)no remedial work was undertaken by the appellant that might attract a deduction.
[18] The Council also submits that it was not appropriate for the Judge to apply a five per cent deduction as a credit for the appellant engaging a building compliance professional. This step had no relevance to the RMA charge because the contravention had already been removed.
14 Auckland Council v Li, above n 11, at [112(c)]; Banora v Auckland Council, above n 10, at [112]; Auckland Council v Fan [2016] NZDC 7194 at [29]; Bay of Plenty Regional Council v Merrie [2018] NZDC 1621 at [104]–[106]; and Waikato District Council v AGB Solutions Ltd [2022] NZDC 20299 at [46].
Analysis
Deduction for remedial works
[19] In the District Court, the appellant sought a 10 per cent deduction for removing the buildings from the site. However, the Judge rejected that submission. Instead, the Judge was prepared to give a five per cent deduction for the appellant’s engagement with a building compliance professional and five per cent for the appellant’s age. These additional deductions were not specifically sought by the appellant.
[20] I accept, as the respondent submits, that the appellant’s submission conflates compliance and remedial work in an RMA sentencing context. A deduction might be appropriate for remedial work which is in addition to simply ceasing the activity giving rise to the breach, but not in cases where the offending has simply ceased. The removal of the two buildings from the site was compliance work ensuring the cessation of the contravention of the abatement notice. As was said in Thurston:15
The Court must begin with the proposition that the defendant must comply with his environment obligations and gets no credit for having belatedly done so.
[21] Accordingly, I agree with the respondent that a deduction is not appropriate here for ‘remedial’ works. There has been no remediation, simply compliance with the abatement notice. Furthermore, as recognised by the sentencing Judge, such compliance was belated. The appellant was well aware of the regulatory requirements; and he was given generous time to achieve compliance. The three years it took for compliance with the second abatement notice was not reasonably required to seek a new site; and had the appellant been genuine in seeking to work collaboratively with the Council the second abatement notice would not have been required.
[22]This ground of appeal fails.
15 Thurston v Manawatu-Wanganui Regional Council, above n 6, at [67].
Totality
[23] The appellant submits the Judge erred by failing to consider totality and failing to apply a deduction to reflect this principle when sentencing him on the RMA charge.
[24] The totality principle is embodied in s 85 of the Sentencing Act 2002. Specifically, it states:
(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending
[25] I note that in the present case there is no suggestion of sentences of imprisonment. The only penalty being considered was a fine. However, it is accepted that the totality principle can apply, by analogy, to sentences involving fines. Indeed, Adams on Criminal Law notes that the principle has a “wider application” which can include sentences with financial penalties.16
[26] However, there is also no fixed rule that sentences for multiple offences must be reduced to reflect totality. As the Court of Appeal noted in Ashcroft v R:17
A totality reduction is not automatic. It is only if the end sentence is “wholly out of proportion to the gravity of the overall offending” that a discount may be given.
[27] Furthermore, in R v Williams, the Court of Appeal rejected the argument that there is a particular way in which total sentences must be put together in respect of multiple offending.18 Instead, the decision of what an appropriate total sentence is for the various charges is a matter of individual discretion and assessment.
[28] Here, the Judge did consider totality. She accepted that the totality principle could apply to successive but proximate sentencing for unrelated offending.19 However, as the appellant had been sentenced for offending relating to different
16 Mathew Downs (ed) Adams on Criminal Law – Sentencing (online ed, Thomson Reuters) at [SA85.05].
17 Ashcroft v R [2014] NZCA 551 at [32].
18 R v Williams CA91/00, 31 May 2000 at [11].
19 Southland District Council v Kidd, above n 2, at [55]–[61]; citing Piao v R [2020] NZCA 607.
buildings on different properties, the Judge declined the appellant’s submission the starting point for the RMA offence should only reflect the ‘uplift’ that would have applied had this charge been sentenced together with the Building Act offending. This charge was found to be sufficiently different, and the Judge said she was not satisfied that if the matters had been heard together the ‘uplift’ would have been only $10,000. That decision was clearly available to the Judge on the facts of the offending.
[29] While I am satisfied totality was considered, and the Judge exercised her discretion on that issue in a reasonably way, for completeness, I go on to consider whether, if a totality deduction should have been applied, the end sentence was manifestly excessive, as this is, in the end, the only relevant consideration on appeal.
[30]The global starting point for both the RMA and Building Act charges is
$65,000 and a combined end sentence was $49,500. Neither the starting point nor the end sentence strike me as being wholly out of proportion to the gravity of the overall offending. Furthermore, I consider the Judge was generous in providing the further deductions she did over and above the guilty plea. There was no particular rationale identified for reducing the sentence on account of Mr Kidd’s age. This was not a case where there was any evidence to suggest that, because of his age, the sentence would cause him particular hardship. Mr Kidd clearly has a significant asset base and, as Ms Chadwick pointed out, there was nothing put forward to suggest he was unable to pay a fine.
[31] There was also no principled basis for identifying why Mr Kidd’s decision to engage the services of a professional building practitioner for future projects mitigated the gravity of the offending for which Mr Kidd was being sentenced. At best, it might possibly suggest a degree of rehabilitative potential but that is not obvious from the Judge’s sentencing notes, and appears generous in the circumstances.
[32] I also accept Ms Chadwick’s submission that the end sentence of $17,500 is well within the range of fines for comparable offending. For example, in Auckland Council v Fan, a single fine of $30,000 was imposed for one charge of breaching an abatement notice in directly comparable circumstances but with less a financial
capacity,20 and in Waikato District Council v AGB Solutions Ltd, a fine of $33,000 was imposed for a single charge of contravening an abatement notice.21 This reinforces my view that the end sentence for the totality of the regulatory offending was not out of all proportion to the gravity of the offending.
Result
[33]The appeal is dismissed.
Solicitors:
Preston Russell, Invercargill Anderson Lloyd, Dunedin
20 Auckland Council v Fan, above n 14.
21 Waikato District Council v AGB Solutions Ltd, above n 14, at [46].
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