Koroniadis v Wellington City Council

[2013] NZHC 1825

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-0028 [2013] NZHC 1825

BETWEEN  A & Z KORONIADIS Appellants

ANDWELLINGTON CITY COUNCIL Respondent

Hearing:                   16 July 2013

Counsel:                  A J Romanos for the Appellants

A Cornor for the Respondent

Judgment:                24 July 2013

JUDGMENT OF GODDARD J

This judgment was delivered by me on 24 July 2013 at 2 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Langford Law, Wellington

DLA Phillips Fox, Wellington

KORONIADIS v WELLINGTON CITY COUNCIL [2013] NZHC 1825 [24 July 2013]

[1]      This is an appeal from a decision of Judge Kelly in the District Court, in which the Judge found the appellants were properly served with an abatement notice by the respondent Council in accordance with the provisions of the Resource Management Act 1991 (the Act).  In the event the appeal is dismissed, the appellants challenge the penalty imposed on them as disproportionate to their alleged transgression.

[2]      The appellants were each charged with failing to comply with an abatement notice issued by the Wellington City Council requiring the removal of an addition to a garage situated at the southern corner of 119 Pirie Street, Mt Victoria, which had not been authorised by resource consent or, alternatively, did not comply with the proposed and operative Wellington City District Plan. The offences are ones of strict liability,  carrying a maximum  penalty of two  years imprisonment  or a fine not exceeding $300,000 and a further fine of $10,000 for every day on which the offence continued.

The issues

[3]      As recorded by Judge Kelly, the only issue to be determined was whether the appellants were served with the abatement notice in accordance with the legislative requirements.   The substantive elements of the alleged offence were not in issue. The questions arising are: whether the physical effecting of service on the appellants by a process server, rather than by an enforcement officer, was permissible, having regard to ss 322 and 352 of the Act when read together; secondly, whether the mode of service constituted effective service, having regard to s 352 of the Act.

Was service of the abatement notice effective?

[4]      In relation to the first question, the appellants’ argument is that the statutory language  of  ss  352  and  322  of  the Act,  when  read  together,  envisage  that  an abatement notice must be (can only be) served by an enforcement officer.  In their case, physical service of the abatement notice was effected by a process server rather than by the enforcement officer herself who had issued the notice.

The legislative scheme

[5]      Part 12 of the Act dealing with “Declarations, enforcement and ancillary powers” provides for abatement notices.   Under the heading “Scope of abatement notice” s 322 provides a discretionary power for enforcement officers to serve an abatement notice on any person as follows:

(1)     An abatement notice may be served on any person by an enforcement officer –

...

(b)   requiring that person to do something that, in the opinion of the enforcement officer, is necessary to ensure compliance by or on behalf of that person with this Act, any regulations, a rule in a plan or a proposed plan, or a resource consent, and also necessary to avoid, remedy, or mitigate any actual or likely adverse effect on the environment –

...

(ii)     relating to any land of which the person is the owner or occupier

...

(4)     An  abatement  notice  shall  not  be  served  unless  the  enforcement officer has reasonable grounds for believing that any of the circumstances in subsection (1) or subsection (2) exist.

[6]      The definition of “serve” under the Act is provided for in s 2 of the Act as follows:

Serve means serve in accordance with section 352 or section 353.

[7]      The  operative  section  for  the  purposes  of  this  proceeding  is  s 352,  a Miscellaneous provision under Part 14 of the Act.  Section 352 specifies the means by which service of notices of documents is to be effected for the purposes of the Act. A variety of modes of service are provided for as follows:

352     Service of documents

(1)      Where a notice or other document is to be served on a person for the purposes of this Act, it may be served—

(a)     By  delivering  it  personally  to  the  person  (other  than  a

Minister of the Crown); or

(b)     By delivering it at the usual or last known place of residence

or business of the person …; or

(c)     By sending it by pre-paid post addressed to the person at the usual  or  last  known  place  of  residence  or  business  of the person; or

(ca)    Repealed.

(d)     by posting it to the Post Office box address that the person has specified as an address for service; or

(e)     by leaving it at a document exchange for direction to the document exchange box number that the person has specified as an address for service; or

(f)      by sending it to the fax number that the person has specified as an address for service; or

(g)     by  sending  it  to  the  email  address  that  the  person  has specified as an address for service; or

(h)     by serving it in the manner that the Environment Court directs in the particular case.

Background events

[8]      In  the  appellants’ case,  a  duly  appointed  enforcement  officer  under  the Resource Management Act (RMA), issued an abatement notice, requiring them to take action in relation to the non-compliant addition to the garage at 119 Pirie Street, Mt Victoria by a  certain date.   The issue of this  notice followed  a  number of inspections of the subject property, carried out in 2010 and 2011, and numerous requests by the respondent Council to remove or alter the addition in order to render it compliant.

[9]      Following  the  issue  of  the  abatement  notice,  service  was  effected  on Mr Koroniadis by a process server, Mr Desmond, by means of personal delivery. Judge Kelly described his effecting of service in this manner as follows:

[53]     ... The evidence of Mr Desmond is in fact that:

15.  At 16.40 Mr Koroniadis came back up towards the upper entrance of 15 Edwards Street.   When he was beside the upper entrance to the south side of the building I approached him and said “Arthur Koroniadis, Abatement Notice from the council, you are served” and held out the documents for him.   The documents

were a covering letter, abatement notice and relevant excerpts from the District Plan and Plan Change 72.

16.  Mr  Koroniadis  said  nothing  and  started  to  turn away at which point I threw the documents at his feet. Mr Koroniadis ran away from me towards the arcade between Edward Street and Victoria Street.

[10]     Following this episode with Mr Koroniadis, Mr Desmond travelled to the last known address of Mr and Mrs Koroniadis and placed the documents in their letter box,   together   with   a   note   identifying   them   as   the   documents   served   on Mr Koroniadis.  This then effected service on both appellants.  As the Judge clearly recorded, there is no dispute that the address at which the documents were left is the appellants’ address as, subsequently, substituted service was successfully made on them at that address in relation to this proceeding.

The District Court decision

[11]     In  respect  of  whether  the  requirements  of  s  322  were  fulfilled  and  the abatement notice was served on the appellants in accordance with the Act, Judge Kelly’s essential findings for the purposes of this appeal were as follows:

(1)     Section 2 of the RMA makes it plain that s 352 of the RMA governs service of abatement notices.   There is no requirement in s 352 for service  of  an  abatement  notice  to  be  effected  by  an  enforcement officer;

(2)     It would be illogical to require some forms of service to be effected by an enforcement officer and some forms of service to be effected by a third party such as a postman delivering a notice to a letterbox;

...

(7)     Although s 322(1) refers to the fact that an abatement notice may be served by an enforcement officer it does not specify that it must or shall be served by an enforcement officer; and

(8)     I find that the requirements for the issue and service of the abatement notice are distinct elements of the charge that must be proved and this is consistent with the RMA provisions I have referred to.

The argument on appeal

[12]     By way of  background  to  his  argument  Mr  Romanos  for  the  appellants submitted that the Act makes clear the primacy of enforcement officers in effecting

compliance under the Act, referring to s 38 of the Act and in particular to s 38(6), which provides for the authorisation and responsibilities of enforcement officers.  In particular a local authority may authorise an enforcement officer to carry out all or any of the functions and powers under the Act.  Mr Romanos  highlighted s 38(6), which provides for every enforcement officer exercising or purporting to exercise any power conferred under the Act to have with him or her, and to produce if required to do so, his or her warrant and evidence of identity.

[13]    Against that contextual background, Mr Romanos referred to the power conferred on an enforcement officer to serve an abatement notice on a person in s 322, as set out in [7] above.

[14]     Mr Romanos then submitted that s 352, providing for the modes by which service of documents, including an abatement notice, might be effected, should be read in light of s 322 and the directive in that section that an abatement notice “may be served by an enforcement officer”.  He said that as s 322 envisages that abatement notices may be served by an enforcement officer but does not authorise any other person to do so and s 352 is silent as to the persons who might effect service of an abatement notice.  By implication, he said, an abatement notice can only be served by an enforcement officer.

[15]   In relation to finding (2) above, Mr Romanos submitted this was a misinterpretation of the operative parts of s 352(1) and had led the Judge to an erroneous conclusion that, under s 352(1)(c) a postman performs an elemental role of service.  Mr Romanos’ argument in this respect was that a postman’s role is but a mere incidental conduit and of no significance to the effecting of service.  It is not an elemental role.   Thus the finding in (2) above he submitted, was “inherently mistaken”.

[16]     In relation to the finding in (7) above, Mr Romanos submitted that it is incorrect to find that because s 322(1) does not contain mandatory language in respect of an enforcement officer, an enforcement officer’s role in service of abatement notices is to be viewed only as a permissive role.   In Mr Romanos’

submission, the object of s 322 as a whole “is plainly to direct the circumstances in

which an enforcement officer may serve an abatement notice”.

[17]     Overall,  the  argument  advanced  was  that  having  regard  to  the  specified modes of service in s 352, abatement notice can only be served by an enforcement officer in one of the ways specified and service by any other person other than an enforcement officer must render such service void.  Mr Romanos contended that a strict approach to interpretation was required, referring to the decision of the Court

of Appeal in Civil Aviation v Heavylife,[1] in which the Court held that service in that

case should have been effected exactly in accordance with a specific directive of the Attorney-General: viz. “personal service upon a representative of Heavylift at the company’s registered office”.

Discussion

[1] Civil Aviation v Heavylife [2008] 2 NZLR 391.

[18]     The issues raised concerning effective service under the Act are narrow and not difficult.

[19]     In relation to the question concerning who may effect service of an abatement notice, it is clear from the provisions of s 322 that it is a matter for the discretion of an enforcement officer as to whether an abatement notice should be issued.   The discretion evident in the permissive “may” is directed to the decision to issue an abatement notice, rather than to the mode in which physical service of the notice once issue will be undertaken.   In this respect, I differ from Judge Kelly’s finding number (7).   That aspect of difference does not, however, affect the outcome or correctness of her decision.

[20]     As to how service should be effected (i.e. mode of service), that is simply a mechanical perfection of the process once a notice is issued and a matter for the enforcement officer or someone under his or her direction to determine under s 352.

[21]     It is clear from the broad range of modes of service provided for under s 352 that an enforcement officer may have little or no involvement in this essentially

administrative task.   For instance, it is entirely conceivable that an enforcement officer might give directions for an abatement notice to be sent by post but not physically place the notice into the post him or herself.  Such a task is likely to be undertaken by secretarial or administrative staff and the process perfected when the postman places the notice in the recipient’s letterbox.   It is also significant in this regard that the majority of modes of service provided for in s 352(1) do not involve any direct, let alone personal, contact: for example, those in subsections (b)-(g). That underlines that the manner in which physical service is effected on the recipient does not go to the validity of the abatement notice itself: its validity derives solely from s 322.

[22]     This ground of appeal against conviction must fail.

Was the method of service in accordance with the Act?

[23]     The  appellants  question  whether  service  was  sufficiently  effected  by the process server throwing the documents at Mr Koroniadis’ feet while the latter was turning around and running away.  The appellants further question why the process server,   if   he  had   properly  effected  service   by  throwing  the  documents   at Mr Koroniadis,  nonetheless  felt  the  need  to  effect  service  again  by  placing  the documents in the appellants’ letterbox.  This Mr Romanos submitted, amounted to two instances of service upon Mr Koroniadis, inconsistent with “the certainty that the law demands of the service of documents”.  It was contended that the reason why the process server put a ‘confirmation of service’ notice in the letterbox was because of “an inkling, at least, that service had not been properly effected”.

[24]     Another aspect put forward by Mr Romanos was that the act of throwing the documents at Mr Koroniadis without any real indication that he had received them could not suffice as properly effected service.

[25]     Judge Kelly found, in relation to the confrontation with Mr Koroniadis that service had been effected on him, as per the quote from the judgment in [9] above.

[26]     In  relation  to  the  placement  of  the  documents  in  the  letterbox  at  the

appellants’ last known address, the Judge further found:

[54]     Likewise I reject the submission of the defendant that placing the documents in the letterbox at 17 Hobart Street was not sufficient to effect service on Mr and Mrs K.   There is no dispute that address is their last known address.  There is no requirement that the notices be affixed to the property and placing them in the letterbox is the well accepted method of service.

[27]     In relation to the mode by which service was effected in this case, it is not necessary for Mr Koroniadis to have received the notice in terms of accepting it from the process server’s hand.   It is clear on the facts that he was fully aware of the situation and that he did have the opportunity of taking the documents from the process server’s hand.   The fact that he chose to run away does not equate to an absence of knowledge of what was occurring  or that service was being validly effected.

[28]     The subsequent placement of the same documents in the appellants’ letterbox at their last known place of residence, with a note identifying them as the documents already brought to Mr Koroniadis’ attention, constitutes valid service on both appellants.

[29]     I accept the submission of Mr Cornor that it was out of an abundance of caution that the process server regathered the documents he had served on Mr Koroniadis and delivered them to the appellants’ address.  His decision to do so has no bearing on the validity of the earlier act of service, nor on his subsequent act of service in placing the documents in the letterbox.

[30]     As already noted, the appropriateness of the address used was not challenged, as substituted service of the informations laid in this proceeding was successfully effected by delivering at that same address.

[31]     This ground of appeal against conviction also fails.

Appeal against sentence

[32]     The sentence imposed by Judge Kelly on the appellants can only be disturbed on appeal if it is clearly excessive or inadequate or inappropriate.

[33]     In  his  submissions  Mr  Romanos  focused  on  the  nature  and  size  of  the offending structure and submitted that it was essentially a tool shed no more than

1.1 metres higher than the height allowable under the Regional Plans.   He further submitted that the effects of the tool shed were relatively insignificant and in the main constituted “shading, dominance and bulk on the adjacent property on the eastern  boundary  and  additional  effects  on  the  townscape  and  streetscape  of Mt Victoria”.

[34]     Mr Romanos submitted that Judge Kelly had overemphasised the effects of the structure in characterising them as “no less significant than any other types of effects such as the physical effects of the discharge of contaminants”, referring by way of contrast to a number of decisions concerning the deliberate discharge of contaminants into the environment and cases involving unsightly structures or wrongful use of a structure.

[35]     In  her  sentencing  notes  Judge  Kelly  carefully  identified  the  leading authorities  in  relation  to  sentencing  under  the Act,  as  well  as  referring  to  the appropriate sentencing principles in the Sentencing Act 2002.  She then reviewed the available  range  of  starting  points  in  relevant  cases  submitted  by  the  parties concerning breaches of abatement notices and conducted her sentencing exercise accordingly.

[36]     The Judge found the deliberate nature of the appellants’ offending and their attitude and conduct of particular relevance.  These aspects were given at least equal, if not greater, weight by the Judge in establishing an appropriate starting point for sentence, as she gave to the physical proportions of the offending structure.  In this regard, it is relevant to note that the appellants chose to ignore advice given to them on several occasions by planning compliance officers, that the structure in question contravened the operative District Plan and the proposed plan.   They consistently failed to act to rectify the situation despite numerous requests to remove or alter the structure to render it compliant.  Following the issue of the subject abatement notice, the appellants still failed to take action.

[37]     In addition and relevant to Mr Koroniadis as a personal aggravating factor is a previous conviction for carrying out the building work without a building consent.

[38]     The start and end points of the sentence determined by Judge Kelly can be seen as coming well within the range of sentences identified in the relevant cases referred to the Judge for her consideration.  The starting point she adopted, and the end sentence appropriately reflected the nature and seriousness of the offending and the culpability of the defendants.

[39]     The apportionment of the end point global fine of $30,000 together with costs, reflecting the totality of the offending, was appropriately apportioned between Mr and Mrs Koroniadis.

[40]     The appeal against sentence also fails.

Enforcement orders

[41]     The enforcement orders made by Judge Kelly as part of the sentence imposed not only derived jurisdiction from s 339(5) of the Act but were made by consent.  On that basis there is no reason to declare these orders void and they remain in force.

Conclusion

[42]     The   appeals   against   conviction   and   sentence   are   dismissed   and   the enforcement orders continue in force.

Goddard J