Liu v Auckland City - [2018] NZHC 1238

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2017-404-444

[2018] NZHC 1238

BETWEEN
DONGHUA LIU, RONCON PACIFIC HOTEL MANAGEMENT LTD, KELLY RONALD PARSONS

Appellants

AND

AUCKLAND CITY

Respondent

Hearing: 12 & 13 Februry 2018

Counsel:

F Pilditch for Appellants B Watts for Respondent

Judgment:

30 May 2018

JUDGMENT OF DUFFY J

This judgment was delivered by me on 30 May 2018 at 3.30 pm pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:
Carter Atmore Law, Auckland Meredith Connell, Auckland Fletcher Pilditch, Auckland

LIU, RONCON PACIFIC & PARSONS v AUCKLAND CITY [2018] NZHC 1238 [30 May 2018]

[1] The three appellants in this case are Mr Liu, Mr Parsons and Roncon Pacific Hotel Management Ltd (Roncon). On 25 May 2017 they were convicted by Judge Kirkpatrick in the District Court under ss 9(3) and 338(1)(a) of the Resource Management Act 1991 (RMA).1 Specifically, they were found guilty of excavating holes into a basalt stone retaining wall without a resource consent in contravention of Activity Table 1 of Chapter J, Part 3 of the proposed Auckland Unitary Plan (PAUP).
Sentencing took place on 25 October 2017.2

[2] All three appellants appeal their convictions. Messrs Liu and Parsons also appeal Judge Kirkpatrick’s refusal to grant discharge without conviction.

Factual background

[3]The following facts are accepted by both parties.

[4] In March 2015, Roncon owned the property located at 76 Gillies Avenue in Newmarket, Auckland. This title had been created by a subdivision in 2002 from a larger parcel of land comprising what is now 74 and 76 Gillies Avenue.

[5] Mr Liu is one of two directors of Roncon. Mr Parsons is an independent contractor engaged by Roncon to undertake development works at 76 Gillies Avenue.

[6] Alfred Kidd House, a building of historical significance, is located at 74 Gillies Avenue. Part of Alfred Kidd House also lies within 76 Gillies Avenue. That part relates to sections of a basalt stone retaining wall (the stone wall). That is because when the larger parcel of land was subdivided, part of the boundary between 74 and 76 Gillies Avenue was drawn along this wall. 74 and part of 76 Gillies Avenue comprise a Category B historic heritage place listed in the schedule in Appendix 9 of the PAUP, which was operative at the time.

[7] As a condition of the subdivision in 2002, a restrictive covenant was executed under s 108 of the RMA and attached to the title of 76 Gillies Avenue. This covenant prohibited the disturbance or alteration of the “stone wall or steps”.

1 Auckland Council v Liu [2017] NZDC 10864.
2 Auckland Council v Liu [2017] NZDC 22882.

[8] Between 9 and 13 March 2015, Mr Parsons commenced preparation to construct a fence along the boundary between 74 and 76 Gillies Avenue. This was at Mr Liu’s request. As part of the preparation, several large holes were excavated from the stone wall. Some damage was…

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: [2018] NZHC 1238
Decision Date: 30 May 2018

CaseChat Overview and Summary

The appellants, Donghua Liu, Roncon Pacific Hotel Management Ltd, and Kelly Ronald Parsons, appealed against their convictions and sentences imposed by Judge Kirkpatrick in the District Court. They were found guilty of excavating holes into a basalt stone retaining wall without a resource consent in contravention of the Resource Management Act 1991 and the Proposed Auckland Unitary Plan (PAUP). The appellants argued that the fencing rule should apply, allowing for the installation of fences without resource consent. However, the High Court found that the character of the excavation did not qualify as earthworks under the fencing rule and the more restrictive heritage rule should apply. The excavation of the stone wall constituted a modification of a structure, requiring resource consent. The appeal against conviction was dismissed. In terms of sentencing, the appellants argued that the gravity of their offending was low, and the consequences of conviction were disproportionate. However, the High Court found the offending to be moderately serious, and the consequences of conviction were not out of proportion to the gravity of the offence. The appeal against the refusal to discharge without conviction was also dismissed.

Orders