Page v Wanganui District Court HC Wanganui CRI 2010-483-40

[2010] NZHC 1152

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2010-483-000040

ADRIAN NEIL PAGE

Appellant

v

WANGANUI DISTRICT COUNCIL

Respondent

Hearing:         5 July 2010

Counsel:         Appellant in person

L C Rowe for respondent

Judgment:      6 July 2010

RESERVED JUDGMENT OF DOBSON J

[1]      Mr Page has been charged with two offences pursuant to the Building Act

2004.  Those charges relate to:

•  carrying out work not in accordance with a building consent (s 40(1)), and

•  failing to comply with a notice to fix (s 168(1)).

[2]      The charges relate to earthworks conducted by Mr Page at a property he owns with his partner at 86 Ikitara Road, Wanganui.

[3]      Mr Page appeals against the conditions imposed on his bail by Judge Radford on 5 May 2010.   The Wanganui District Council (the Council) is also pursuing charges  under  the  Resource  Management  Act  1991,  and  bail  was  set  on  those charges by Judge Kelly on 29 April 2010.  Before Judge Radford on 5 May 2010, Mr Page sought to have varied the condition of bail (set in the proceedings before Judge Kelly) that he not go to 86 Ikitara Road.   Judge Radford declined.   The conditions of bail that Mr Page is therefore subject to are:

a)        that  he  not  communicate  or  contact  or  attempt  to  communicate directly or indirectly with the complainant;

b)        that he not go to the address of 86 Ikitara Road, Wanganui;

c)        that he not conduct earthworks involving storm water run-off on the subject property.

[4]      An appeal against conditions imposed under s 31 of the Bail Act 2000 (the Act) is by way of rehearing.[1]     However, this is an appeal from an exercise of discretion.   Unless the appellant can point to changed circumstances, he must demonstrate that the Judge erred in principle, “or that the Judge failed to consider all relevant matters or took into account irrelevant matters, or that the decision was plainly wrong”.[2]

[1] Bail Act 2000, s 41(6).

[2] R v Blaikie CA386/99, 27 September 1999 at [8]; Webster v Police HC Auckland CRI-2008-404-0053, 18 April 2008 at [12].

[5]      Section 31 of the Act provides:

31       Conditions of bail

(1)Subject to section 32 and to sections 39A and 65A, if a defendant is granted bail, the defendant must be released on condition that the defendant attend personally—

(a)      at the time and place at which the hearing is adjourned; or

(b)at every time and place to which, during the course of the proceedings,   the   hearing   may   from   time   to   time   be adjourned.

(2)       The District Court or Registrar may impose, as a further condition of the defendant's release, a condition that the defendant report to the police at the time or times and at the place or places that the Court or Registrar orders.

(3)Whether or not the District Court or Registrar imposes a condition under subsection (2), the Court or Registrar may impose any other condition that the Court or Registrar considers reasonably necessary to ensure that the defendant—

(a)appears in court on the date to which the defendant has been remanded; and

(b)does not interfere with any witness or any evidence against the defendant; and

(c)      does not commit any offence while on bail.

(4)       Despite subsection (3), the Court or Registrar must not require as a further condition of the defendant's release the deposit of any sum or the entering into of any obligation in the nature of a bond, guarantee, or surety, whether by the defendant or any other person.

[6]      The Court of Appeal in R v Fatu held that there must be a “rational link” between  any condition  imposed and the relevant consideration.[3]     Moreover, the Court noted “the need to analyse the need for the justification for, and efficacy of, unusual terms of bail”.[4]

[3] R v Fatu (2005) 22 CRNZ 524.

[4] At [10].

[7]      Mr Page  complains  that  the  Council  has  wrongly  attributed  to  him  an intention to subdivide the property at 86 Ikitara Road.   He attributes fraud to a Council planning officer, in attributing to the content of a report produced by a Wellington consulting engineer on his behalf, the prospect of up to five building sites “proposed for future development”.

[8]      Mr Page claims he has no present intention to subdivide.  He claims that the work he was undertaking at the property is solely for landscaping purposes and, because of that, the standards by which the work is being measured should not in fact apply to it.

[9]      The  concerns  on  behalf  of  the  Council  at  the  nature  of  works  being undertaken caused the Council to apply to the Environment Court for enforcement

orders.  Such orders were made on 22 June 2009.  Those orders required Mr Page and his partner (Ms Wilson) to undertake remedial work at the site.  The terms of the orders were, in material part, as follows:

A.  Erosion and Sediment Control Plan

i.Have   prepared   by   a   chartered   professional   engineer, practising in civil engineering, an Erosion and Sediment Control Plan for the site in accordance with ‘Erosion and Sediment Control in the Wellington Region’ (GWRC 2002). A copy of the Erosion and Sediment Control Plan is to be provided to the Council within fifteen (15) working days of the date of the Enforcement Order.

B.        Earthworks Plan

ii.Have   prepared   by   a   chartered   professional   engineer, practising in geotechnical engineering, an Earthworks Plan; which shall include the removal of all uncontrolled fill at the site and the work necessary to stabilise cut batters, including re-vegetation.   A copy of the Earthworks Plan is to be provided to the Council within fifteen (15) working days of the date of the Enforcement Order.

C.        Stormwater Design Plan

iii.       Have   prepared   by   a   chartered   professional   engineer, practising in civil engineering, a Stormwater Design Plan covering the removal of temporary stormwater systems; the design of any new temporary or permanent stormwater systems; and the allowance for secondary flow paths.   A copy of the Stormwater Design Plan is to be provided to the Council within fifteen (15) working days of the date of the Enforcement Order.

[10]     Mr Page now complains that his complete exclusion from the site is itself causing  deterioration.    He  claims  to  have suffered  a  loss  in  terms  of  materials transported to the site, most particularly bags of cement that will no longer be usable. After numerous exchanges of the diametrically opposed positions between him and the Council, I indicated my intention to vary the terms of bail so as to permit him to go onto the property with appropriate experts retained to prepare the plans required by  the   enforcement   orders,   as   a   pre-condition   to   carrying  out   any  works recommended by such plans.   However, Mr Page’s response was that such steps were unnecessary, and a waste of time and money, and that they would not be occurring.

[11]     I am satisfied that the existing conditions of bail are rationally linked to the circumstances of the alleged offending, and are warranted both to reduce the risk of re-offending and to avoid interference with the scene of the alleged offending.

[12]     In order to address Mr Page’s concerns about deterioration of the property, it is appropriate to vary the conditions so that some progress could be made, but there is no possible basis for doing so on terms inconsistent with the enforcement orders obtained by the Council.

[13]     If Mr Page wishes to go forward on the basis that the works are purely landscaping, and that he has no intention to subdivide, then the reports obtained may well reflect lesser requirements, subject to the scope of work then not qualifying for any subsequent application for subdivisional consent.

[14]    If Mr Page is not prepared to proceed in a manner consistent with the enforcement orders, then there is no scope for varying the existing bail conditions. He has complained about the delay in resolving the criminal proceedings brought against him.  Mr Rowe pointed out that the delays are at least in part of Mr Page’s own making.  Mr Page had originally elected summary trial, but on the date set down for a defended hearing in the Environment Court at the end of April 2010, Mr Page claimed he had elected trial by jury.   That was taken by the Environment Court Judge as affording an entitlement to make a further election.  Mr Page then did so, and in electing trial by jury, the ultimate outcome has inevitably been delayed. Mr Rowe  also  indicated,  in  relation  to  the  criticisms  Mr  Page  mounted  as  a consequence of  a decision  to  withdraw  a criminal  nuisance charge,  that  further charges under the Crimes Act 1961 are very likely.

[15]     The Council opposes any variation to the terms of bail until the reports contemplated by the enforcement orders have been obtained.  Mr Rowe submitted that Mr Page’s conduct in the past justifies concerns on the part of the Council that if Mr Page is afforded access to 86 Ikitara Road he will continue to commit further offences.

[16]     The complete ban could unreasonably impede Mr Page giving instructions to appropriate engineering experts who would be needed to complete the three plans contemplated  in  the  enforcement  orders.     He  should  not  be  prevented  from instructing experts to prepare such reports, as a first step towards further work at the site that would not be objected to by the Council as unlawful.

[17]     Accordingly, I propose to qualify the conditions of bail sufficiently to allow that to occur, if Mr Page wishes to do so.  Once Mr Page has signed a further bail bond reflecting the amended terms set out below, they are to apply until the date to which the substantive proceedings have been adjourned.

[18]     The amended conditions of bail are:

a)       That he is not to communicate or contact or attempt to communicate directly or indirectly with the complainant, except for the purposes of any discussion reasonably necessary to progress the recommendations made in reports complying with the enforcement orders made by the Environment Court and issued on 22 June 2009.

b)That he is not to go to the address at 86 Ikitara Road, Wanganui, except when accompanied by any engineering experts retained for the purposes of producing reports of the type specified in the enforcement orders issued by the Environment Court on 22 June 2009.

c)       That he is not to conduct any earthworks involving stormwater run-off on the subject property, except in accordance with the recommendations of any report prepared to comply with the enforcement orders made by the Environment Court on 22 June 2009, and thereafter only with the concurrence of the Wanganui District Council.

[19]     Whether Mr Page avails himself of the relaxation in terms of his bail is a matter entirely over to him.

Dobson J

Solicitors:

Armstrong Barton, Wanganui for respondent
Copy to:

Adrian Page, 151 Waikupa Road, Wanganui