O'Byrne v Waimakariri District Council

[2011] NZCA 130

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

1. 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.

2. 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.

3. 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.

4. 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