O'Byrne v Waimakariri District Council

IN THE COURT OF APPEAL OF NEW ZEALAND

CA584/2010
[2011] NZCA 130

BETWEEN ROGER W O'BYRNE
Applicant

AND WAIMAKARIRI DISTRICT COUNCIL
Respondent

Hearing: 31 March 2011

Court: Glazebrook, Simon France and Lang JJ

Counsel: Applicant in Person
S C Newell for Respondent

Judgment: 4 April 2011 at 10.00 am

JUDGMENT OF THE COURT

The application for special leave to appeal against sentence is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

Mr O’Byrne pleaded guilty to erecting a hay shed without a building consent. He was fined $7,500 plus costs. He appealed the sentence. Fogarty J reduced it to $6,000 plus costs. Mr O’Byrne then sought leave to appeal to this Court, which was declined. He now seeks special leave to appeal.
Mr O’Byrne’s position is that he wrongly accepted legal advice to plead guilty. Having now himself looked at the Building Act 2004, he believes that his situation came within the provisions of s 41(1)(c) of the Act which provides a defence where the work is urgent and there is not time to obtain a permit.
It was explained to Mr O’Byrne that to withdraw his guilty plea, he must appeal his conviction. He will also now need leave to appeal out of time.
No issue is raised about his sentence, which is the only matter actually appealed to date. The application for special leave must, therefore, be declined. The respondent does not seek costs.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

In the case of O'Byrne v Waimakariri District Council, the appellant, Roger W O'Byrne, sought to appeal the sentence imposed upon him by the Waimakariri District Council for constructing a hay shed without obtaining the required building consent. The sentence was initially set at $7,500, plus costs, but this was later reduced to $6,000, plus costs, by Fogarty J. O'Byrne then sought leave to appeal to the Court of Appeal, which was denied. The Court of Appeal subsequently declined O'Byrne's application for special leave to appeal against the sentence. The appellant argued that he had mistakenly followed legal advice to plead guilty, and having reviewed the Building Act 2004, he believed his situation fell within the provisions of s 41(1)(c) of the Act, which provides a defence where the work is urgent and there is not enough time to obtain a permit.

The primary legal issue before the Court of Appeal was whether O'Byrne should be granted special leave to appeal against the sentence. The Court explained that for O'Byrne to withdraw his guilty plea, he would need to appeal his conviction and obtain leave to appeal out of time. However, no issue was raised about the sentence itself, which was the only matter actually appealed to date. Consequently, the application for special leave had to be declined.

The Court of Appeal, comprising Glazebrook, Simon France, and Lang JJ, found that O'Byrne's application for special leave to appeal against the sentence should be declined. The Court emphasised that the appellant had not raised any issue about the sentence itself, and the application for special leave was based solely on the premise of withdrawing the guilty plea. The Court of Appeal was of the opinion that no special circumstances warranted granting special leave in this case. As a result, the Court denied the application for special leave, and the respondent did not seek costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established