O'Byrne v Waimakariri District Council HC Christchurch CRI 2009-409-188

[2010] NZHC 645

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2009-409-000188

ROGER WILLIAM O'BYRNE

Appellant

v

WAIMAKARIRI DISTRICT COUNCIL

Respondent

Hearing:         29 April 2010

Counsel:         Appellant In Person

S C Newell for Respondent

Judgment:      29 April 2010

JUDGMENT OF FOGARTY J

[1] Mr O’Byrne is a farmer and an engineer. He pleaded guilty to carrying out building work other than in accordance with the building consent as required by s 40 of the Building Act 2004. He started building a six bale hay shed without applying for a building permit.

[2]      Judge Bisphan in the District Court fined him $7,500 and then awarded costs to the Council of $339, directed 90% of the fines go to the Council and that he pay

Court costs of $130.   He appeals against the sentence.

O'BYRNE V WAIMAKARIRI DISTRICT COUNCIL HC CHCH CRI 2009-409-000188  29 April 2010

[3]      Most of Mr O’Byrne’s argument is he has had a long history with the Council whereby the Council has significantly imposed costs on him in his dealings with them over the years, particularly in trying to provide road access to a block of land that he sold many years ago and which had a paper road access.   He also had problems with the Council wanting to create an esplanade around a stream passing through his property.

[4]      The problems with the paper road easement issue were that he lost four opportunities to sell the block.  He paid a lot more in costs and expenses than was necessary and he rates his losses in excess of $100,000 by reason essentially of incompetence on behalf of the Council.   He similarly argues that the idea of an esplanade easement through the stream passing through nine paddocks on an operating farm was silly and in the end proved to be.  The Council was satisfied and they backed off it.

[5]      So it was against a background of frustration and belief that the Council had imposed on him a lot of costs that he went ahead building the hay shed without applying for a building consent.  This was also in part because of the fact that his previous  arrangement  for  storage  of  hay  was  terminated  at  short  notice  on

16 October 2008 and that he considered he did not have enough time to go through the building consent process, relying on his previous experience that the Council never processed applications in time.

[6]      As  I  explained  to  Mr  O’Byrne  after  hearing  this  argument,  it  is  not  a mitigating feature that one has had problems with the Council in the past.   The sentencing  Judge,  Judge  Bisphan,  was  quite  correct,  I  find,  when  noting  that Mr O’Byrne, as an engineer, knew perfectly well that you cannot erect a brand new building without a building permit and that was a deliberate breach of the Act.

[7]      The sentencing Judge, however, did not apply the Court of Appeal in the case of R v Hessell [2009] NZCA 450. Hessell has largely removed a lot of discretion of sentencing Judges in how to deal with guilty pleas.   We now follow what is virtually a code, set of rules.  As a result it was necessary for Judge Bisphan to go beyond setting an appropriate starting point of somewhere between $10,000 and $15,000 and

fixing a starting point.  Secondly, he was then obliged by Hessell to take aggravating and mitigating factors into account before applying the discount.  This he failed to do.  The result was that we have no clear impression as to how the ultimate fine of

$7,500 was taken into account.

[8]      The Judge did take into Mr O’Byrne’s favour that the building was well built. The Judge said, maybe even better built than if it had been built in accordance with a Council permit.  The Judge also found there was no specific harm to the public or anybody else.   The only harm is he got away, as the Judge said, for a wee while, building a building without a permit.

[9]      The Judge recognised that if Mr O’Byrne had applied for a permit in the very particular position the strong likelihood is that the permit would have been granted.

[10]     The Judge obviously considered the case carefully and when finding that an appropriate starting point would be somewhere between $10,000 and $15,000 he was finding that the starting point could be as low as $10,000 and as high as, but not beyond, $15,000.     Ms Newell argued that it had to be a figure in-between and literally the phrase “would be somewhere between” is that.  But, on the other hand, if it is necessarily going to be higher than $10,000 then the Judge should not have said it was between $10,000 and $15,000.

[11]     In these circumstances I think the appropriate course is to take the $10,000 figure  as  the  starting  point.    Then  the  question  becomes  how  to  discount  for mitigating factors.  I have already recounted the Judge’s findings of mitigation and on that account I also need to balance the Judge’s concern for a need for a deterrent sentence because of the quite deliberate flouting of the law in not applying for a building permit in the first place.  I distinguish the cases that Mr O’Byrne urged on me where conversions of buildings took place without a building permit being applied.  It seems to me that it is more serious to build a substantial building from scratch without any building permit than to get into the murky area of altering buildings which may or may not require building permits.

[12]     Taking these factors together I discount the $10,000 starting point by $1,000 and reach a sum of $9,000.  There is no doubt that Mr O’Byrne entered his guilty plea at the earliest time so therefore, according to Hessell, he is entitled to one-third discount.   Accordingly, I reduce the fine to $6,000.   The rest of the orders of the District Court remain in place.

Solicitors:

Buddle Findlay, Christchurch, for Respondent