Kidd v Southland District Council - [2025] NZHC 2120

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…

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 2120
Decision Date: 31 July 2025

CaseChat Overview and Summary

Charles Kidd, an 84-year-old individual, pleaded guilty to a charge of failing to comply with an abatement notice, resulting in a $17,500 fine imposed by the Environment Court. Kidd appealed the sentence, arguing the Judge erred by not deducting for remedial works undertaken and not applying a deduction for totality, making the sentence manifestly excessive. The key legal issues revolved around whether the Judge should have considered a deduction for remedial works and whether the totality principle warranted a reduction in the fine.

Regarding the deduction for remedial works, the court found that Kidd's actions merely ensured compliance with the abatement notice, not additional remediation. The court emphasized that compliance with environmental obligations does not attract a deduction, particularly when the compliance was belated. The court held that no deduction was appropriate as the removal of the buildings was merely compliance and not remediation.

As for the totality principle, the court noted that while the principle can apply to fines, it is not automatic. The court found that the Judge had reasonably exercised her discretion in considering totality and determined that the RMA charge was sufficiently different from the Building Act charges. The court concluded that the sentence was not manifestly excessive, as it was within the range of fines for comparable offences. The appeal was dismissed.

The court's decision affirmed the Environment Court's judgment, upholding the $17,500 fine imposed on Kidd. The court found that the Judge had appropriately considered the totality principle and that the sentence was not manifestly excessive.

Orders