Lau v Auckland Council
[2016] NZHC 2397
•7 October 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-002063 [2016] NZHC 2397
BETWEEN AUGUSTINE LAU
Appellant
AND
AUCKLAND COUNCIL Respondent
Hearing: 4 October 2016 Appearances:
Appellant in person
B Watts for RespondentJudgment:
7 October 2016
JUDGMENT OF FOGARTY J
This judgment was delivered by Justice Fogarty
On 7 October 2016 at 4.00pm Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors:
Meredith Connell, Auckland
Copy to Appellant
LAU v AUCKLAND COUNCIL [2016] NZHC 2397 [7 October 2016]
[1] This is an appeal seeking to overturn the decision of the Environment Court delivered on 28 July.1 The decision rejected three appeals lodged under s 325 of the Resource Management Act 1991 (RMA). All appeals are limited to questions of law, by s 299(1) of the RMA.
[2] The appeals to the Environment Court had challenged abatement notices that the Council had issued in respect of three properties with which the appellant is concerned. Two of these are properties on which re-locatable homes have been lodged without consent. The third has been subjected to earthworks beyond the permitted maximum.
[3] The activities – the subject of the abatement notices were generally summed up this way in paragraph [27] of the Judgment under appeal:
These breaches are not of the same severity, but indicate a pattern of activity which seeks to place re-locatable houses on land and occupy them with tenants in circumstances where there appears to have been no or very little consideration of either building consent requirements or the RMA. While we appreciate that there is an enormous pressure in Auckland for housing, but it cannot be the intention that people are placed in houses that are unsafe and unchecked. In the circumstances we are not satisfied that any of these properties have been operating in accordance with the Resource Management Act and I have deep suspicions as to whether they comply with the Building Act.
[4] That led to the appeals being dismissed by the Environment Court, with costs being deferred for a later hearing.
[5] The appellant has now appealed to the High Court. He has not instructed counsel. He does not understand that the appeals must be limited to questions of law.
[6] He argues that the sitting Judge was prejudiced as a result of a previous decision which did not favour Mr Lau and that further grounds would be lodged after he obtains the return of documents seized from his office on 9 and 16 August.
The subject properties
676 Mt Albert Road, Royal Oak
[7] This property contains two buildings – a single level weatherboard dwelling house and a shed. The house was constructed pre-1940, although extensions have been subsequently made. A subdivision of the property into two cross-leases was approved back in June 2012 by the Council, but it has not been given effect to. There are two dwelling units on the property. The Council takes the view that it breaches the District Plan’s density limit for residential units. Two abatement notices were addressed to Ms Chen, the registered owner. The first to cease using the property as more than two residential units. The second to provide a site plan to demonstrate how the property would be reinstated as no more than two residential units.
[8] Mr Lau’s appeal of the abatement notices alleged the property enjoys existing use rights. This is denied by the Council. The Council argues that there is no possibility that the conversion of the dwelling house into five residential units was lawfully undertaken.
423 Ormiston Road
[9] This site is located in the semi rural area of Flatbush. It is an area of more than two and a half hectares. The registered owner is a company called Te Ormiston Co Ltd. The zoning is a mixture of proposed road zoning, storm water management and public open space.
[10] For the purpose of the abatement notices, the relevant District Plan has rules restricting earthworks. Rule 9.8.2 only allows earthworks up to 200 cubic metres as permitted activity and r 9.8.3.4 classifies earthworks on a storm water management area as restricted discretionary activity. A variety of building works, including earthworks, have been going on the property noticed since July 2014. Mr Lau argues, that the earthworks having been started, now have to be finished.
436 Paremoremo Road
[11] This is an area of 1.48 odd hectares. It is zoned Rural 1. A large house has been relocated onto the site. Neighbours have made complaints regarding earthworks and the removal of pine trees. The Council has noted building work going on, starting with a garage on the site into which partitioning walls were being added. Abatement notices were issued. They have not been complied with. Mr Lau disputes that he brought the house onto the land.
Decision under appeal
[12] The decision under appeal is an oral decision of the Environment Court, Judge J A Smith, Environment Commissioner A C E Leijnen and Environment Commissioner S K Prime. The oral decision was that the appeals are dismissed and all of the appeals, are in any event, struck out. The Court held that counsel was to file an application for costs within 10 working days and any reply is to be filed five working days thereafter. A final reply, if any, was to be filed five working days after that.
The appeals to this Court on questions of law
[13] Mr Lau had no comprehension of the difference between an appeal limited to questions of law and a general appeal. Nor did he understand that it is not possible on appeal to introduce new evidence. For these reasons Mr Lau attempted a general re-hearing of the entire case. That was entertained by me to a degree, but I was conscious of the quite extraordinary findings by the Environment Court as to his credibility. The Environment Court had said: “We conclude that Mr Lau’s evidence was both disingenuous and intended to obfuscate the issues and deviate away from
the real situation”.2
[14] More generally the Court said at paragraphs [22]-[25] of the Judgment:
[22] The Court has serious concerns as to whether the evidence given by Mr Lau to this Court is true and correct. This may warrant further investigation. Nevertheless, for current purposes this Court is only
required to be satisfied to a civil standard whether the matters made out in the application for appeal and strikeout are established.
[23] Quite simply, we have concluded that none of the appeals are warranted in the slightest. We consider them an abuse of process, and to be misfounded both in law and in fact. It must follow, therefore, that we would have been minded to strike them all out as an abuse of process under the Act. It must also follow, therefore, that Mr Watts' application for strikeout must be successful to the extent he sought it. We note that not all of the abatement notices were sought to be struck out by the Council.
[24] This is a case where it appears to the Court that the Council has been involved in this matter at enormous expense and difficulty, with a person who has sought to evade their responsibilities under the RMA, and probably under other acts such as the Building Act.
[25] The Commissioners wish me to express their concern that Council officers have been engaged in what appears to be hundreds of hours of investigations and research in circumstances where the situation was clear. Given that there are other enforcement actions involving Mr Lau before this Court, this Court's view is that this matter needs to be brought to a head.
[15] It was my impression that Mr Lau either genuinely had no comprehension of the need to obtain appropriate consents from the Auckland Council when commencing significant new activities on land, be it placing structures on the land or doing major earthworks, or was not telling the truth.
Resolution of the appeals in this Court
[16] The task of this Court on appeal is to identify whether or not there were any errors of law of a material nature in the decision of the Environment Court. As already noted, Mr Lau has failed to specify errors of law or questions of law to be resolved.
[17] In his notice of appeal, he did allege that Judge Smith was prejudiced against him because he had previously made unfavourable findings against him in another case.3 That is a misconception of the law. The fact that a Judge has previously found against a litigant in a previous case, does not mean that the Judge cannot sit on subsequent cases. It is no basis for finding any prejudice. In fairness to Mr Lau, he did not make this argument before me.
[18] Some of Mr Lau’s arguments relied on the Auckland Unitary Plan (AUP).
[19] Mr Lau did not understand that the AUP was not in force at the time of the abatement notices. It was then the proposed AUP, known as PAUP. It only gained legal effect on 19 September 2016. It is currently in the appeal phase. Further, Mr Lau did not appear to understand that he was not being charged in any way with breach of the AUP. It appeared he was arguing in a most general fashion that what he was doing was in accord with some of the objectives of the AUP. This argument was irrelevant and no defence to the charges. For example, one of his arguments was there was a failure of the Environment Court to take into account the proposed re- zoning of 676 Mt Albert Road under the PAUP.
676 Mt Albert Road, Royal Oak
[20] The notice of abatement in respect of 676 Mt Albert Road was made out to Ms Meijuan Chen. Mr Lau received notices pertaining to the property. He told the Court he is the Property Manager of the addresses and collects rent in respect of the property. The Court was puzzled on what basis Mr Lau was seeking to advance the appeal, as he was not the owner. It recorded the argument of Mr Lau that the property has been divided for occupation by tenants for some years. When he was directed to evidence of recent construction work, he acknowledged it had occurred but said that the work was by the tenant. He repeated that in respect of other work. There was clear evidence that there is something in the order of six tenancies on site.
[21] Mr Lau did not produce any evidence that he had authority to represent the owner, Ms Chen. As a matter of law, non-compliance with the plan in the past is not a ground for non-compliance at the time of the abatement notice; and finally, the Court was satisfied that further works had been undertaken on the premises at the time when, even by Mr Lau’s evidence, he had authority as Property Manager.
[22] The Environment Court dismissed this appeal on the grounds:
Mr Lau did not produce any evidence that he had authority to represent the owner, Ms Chen in these proceedings.
[23] The Auckland Council submitted in the High Court that Mr Lau could not possibly appeal under s 325 of the RMA against the abatement notices issued to Ms Meijuan Chen. The Council’s primary submission was that the appellant had no standing under 325(1) and that Mr Lau provided no evidence of authority from Ms Chen to bring the appeal on her behalf. It was submitted the Environment Court was therefore correct to strike out the appeal. I agree. This appeal is dismissed.
436 Paremoremo Road
[24] In respect to 436 Paremoremo Road, the issue of fact here is whether the relocated house was placed on the property by Mr Lau. The Environment Court recorded that a considerable amount of evidence had been given by Mr Lau about that. Mr Lau went through that material before me. Essentially Mr Lau appeared to be arguing that the house was placed on the site by a house moving company and therefore not by him. He resisted any suggestion that the house moving company would be simply acting on instructions. The Environment Court made a critical finding of credibility:
[15] The Relocated House appears to have been placed on the site around February 2016 and the question is therefore whether Mr Lau was responsible for placing it on the site or not. A considerable amount of evidence has been given by Mr Lau, and I do not intend to go through the extensive evidence of the Council or the cross-examination of Mr Lau in respect of it.
[16] Quite simply, wherever there is a difference between Mr Lau's evidence and that of the Council we prefer the evidence of the Council. We conclude that Mr Lau's evidence was both disingenuous and intended to obfuscate the issues and deviate away from the real situation. This is supported by a number of factors:
(a) the number of cell phones that Mr Lau seems to operate and his denial that he was responsible for exchanges of texts with Council officers;
(b) the fact that he attended meetings with the Council, and that almost in every case when council officers questioned people on site they referred to Mr Lau as the person providing instructions;
(c) the use of emails with very similar numbers and addresses. As Mr Watts put to Mr Lau, none of those persons have been proved to date to be real;
(d) in some cases Mr Lau himself acknowledges that he may have had some input into the emails that were sent.
[25] This was a completely hopeless appeal to this Court. The Court rejected as incredible Mr Lau’s attempts to distance himself from the placing of this house on the property by blaming it on the transport company. Again, Mr Lau failed to identify any error of law. This appeal is dismissed.
423 Ormiston Road, Flatbush
[26] The notices in respect of Ormiston Road related only to a requirement to cease all earthworks. They were issued against three parties, including Mr Lau. Mr Lau filed a notice of appeal in respect of each party. This is a semi-rural property, in an area that is being suburbanised. Mr Lau admitted he managed the property. Mr Lau also admitted that more than 200 cubic metres of fill had been moved onto the property. He contended he had to do more work on the fill in order to level it. He argued he did not create the problem that he had now, but he needed to sort it out. The Environment Court was extremely sceptical that the wrong persons had been subject to the abatement notices.
[27] During the hearing before the Environment Court, Mr Lau abandoned his appeal. At the close of the evidence and hearing submissions, Mr Lau conceded that all the earthworks required at 423 Ormiston Road had been done, and accordingly he was letting go of his appeal.
[28] During the delivery of the oral judgment Mr Lau interrupted the Court to say that his withdrawal was subject to a condition that he did not have to pay costs. One might applaud Mr Lau’s bargaining instincts, during the delivery of a judgment, but they have no place in a Court of law. He had no merit argument in respect of Ormiston Road.
[29] I find this appeal was abandoned in the course of the hearing. This appeal is dismissed.
Conclusion
[30] The three appeals are dismissed. No error of law was proved.
Costs
[31] Mr Lau has not advanced any serious argument entitling him to avoid meeting an order for costs.
[32] The Crown has asked that costs be reserved. Presumably this is because the Crown wish to file further submissions on costs. Costs are accordingly reserved on the basis that costs will be payable by Mr Lau, the question being the basis of
calculation and the amount that he will be ordered to pay.
Fogarty J
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