Seymour v Auckland Council
[2015] NZHC 743
•17 April 2015
IN THE HIGH COURTOF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-409
CRI-2014-404-410 [2015] NZHC 743
BETWEEN MILES JOHN STANLEY SEYMOUR
AND YVONNE CECELIA SEYMOUR Appellants
AND
AUCKLAND COUNCIL Respondent
Hearing: 30 March 2015 Counsel:
R Dellow for Appellants
C Paterson for RespondentJudgment:
17 April 2015
JUDGMENT OF BREWER J
This judgment was delivered by me on 17 April 2015 at 3:30 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors: Galbraiths Lawyers (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent
Counsel: David Connor/Ross Dellow
SEYMOUR v AUCKLAND COUNCIL [2015] NZHC 743 [17 April 2015]
Introduction
[1] Mr and Mrs Seymour own a house which has an attached sleepout. The Auckland Council considers the sleepout has unconsented features which need to be fixed. So, it issued a notice to fix and then prosecuted the Seymours when they did not comply with it. On 14 May 2014 they were convicted by Judge K Glubb in the District Court at Auckland.1 On 3 November 2014 the Judge fined Mr Seymour
$8,631 and Mrs Seymour $4,306.2
[2] Mr and Mrs Seymour now appeal their convictions and their sentences. To understand the issues raised by their appeals, some more background needs to be set out:
(a) Mr and Mrs Seymour bought the property in 1993, after the Building Act 1991 had come into force. They say that the sleepout already existed at that time. They cannot be liable to fix unconsented work if it existed when they bought the property and had been completed before the 1991 Act came into force.
(b)Mr and Mrs Seymour accept that they upgraded the sleepout. But, they say, it was work in the nature of maintenance or replacement of what was already there. They argue that they do not need a consent to maintain or replace what was already there.
(c) The Auckland Council did not accept the Seymours’ arguments. From
2010 the Council issued a number of notices to fix. After the third notice to fix was issued on 24 September 2010, Mr and Mrs Seymour applied, pursuant to s 177 of the Building Act 2004, for a determination in relation to the notice to fix. The 2004 Act prescribes a process by which they could do this. Essentially, the process involves a qualified person examining a situation, receiving any relevant evidence, and making a determination on the issues between
the parties. A determination is binding on the parties concerned3 and although there is a right of appeal to the District Court,4 it must be filed within 15 working days after the date of the determination. In this case, the determination went against Mr and Mrs Seymour’s
position. However, they did not appeal it. The Council continued to issue notices to fix, with the final notice being issued on 22 September
2011. The notice relied on the determination. It was this notice to fix which founded the prosecution of the Seymours.
[3] At the trial, Mr and Mrs Seymour maintained their position that they had not done the illegal conversion work on the sleepout and could not be compelled to fix it. They denied that the work they had done on the sleepout amounted to anything more than maintenance or replacement of what was already present.
[4] The Judge, and I summarise broadly:
(a) found that the unlawful conversion of the sleepout took place before
Mr and Mrs Seymour bought the property and before the Building Act
1991 came into force;
(b)rejected the Seymours’ argument that all they had done was maintain or replace. He decided that much of the work they had done required consents and hence the notice to fix was issued validly but was not complied with;
(c) convicted Mr and Mrs Seymour accordingly, and fined them.
Issues
[5] The issues for me to decide are:
(a) Given the Judge’s finding that the unlawful conversion of the sleepout took place before the Building Act 1991 came into force, did he err in deciding that the notice to fix applied to work done by the Seymours?
(b)If the notice to fix does apply to work done by the Seymours, should the Judge have found that their work was merely maintenance or replacement of building components and thus no consents were required?
(c) If the convictions stand, are the fines manifestly excessive in all the circumstances?
Was the Judge wrong to hold that the notice to fix applied to work done by the
Seymours?
[6] The relevant part of the notice to fix is:
The utility building established under building permit in 1981 is currently in use as a self-contained dwelling unit. Work giving effect to the conversion was undertaken without building consent when consent was required under section 32 of the Building Act 1991, and the works remain non-compliant with Schedule 1 of the Building Regulations 1992 (the Building Code). All building works must comply with the Building Code: s 17.
The specific works that fail to comply are as follows:
· B1 (Structure) floor
· B2 (Durability) floor, ceiling and roof
· E1 (Surface water) stormwater catchment
·E2 (External moisture) floor, ceiling, wall cladding, openings and roof
· E3 (Internal moisture) floor
· G1 (Personal hygiene) floor and floor surfaces
· G3 (Food preparation) floor and floor surfaces, kitchen
· G13 (Foul water) internal waste pipes
· H1 (Energy efficiency) insulation to floor
We also refer you to section 5.4.1 of Department of Building and Housing
Determination 2011/033 dated 13 April 2011 for further clarification.
Please note that the above description includes only those non-compliant items that are known. Further items may be identified during any building approvals process initiated and may be subject to further Notices to Fix.
[7] The Judge recognised that the Seymours’ case in their defence was that the sleepout was built before the Building Act 1991 applied and therefore there had been no change in its use, and no unconsented works.5
[8] The Judge then said:6
That clearly sets out the jurisdictional issue. What that means is that any building that predates the Act which remains unaltered (and that is the critical point) does not need to meet the requirements of the building code. Accordingly, if I was to find that the building had remained unchanged after the passage of the 1991 Building Act, then the territorial authority could not issue a notice to fix, and that would be a complete answer to the prosecution. However, nothing is as simple as that.
[9] So, the Judge had to look at the evidence and decide what the prosecution had proved about when the sleepout was built, and what had been done to it since it was built. He did, and held that:7
… it is clear that the main structure of the sleepout, the flooring, the toilet
and shower, the hand basin existed at the time the property was purchased.
[10] The Judge then looked at the work Mr and Mrs Seymour had done to see if that required consent under the 1991 Act:8
It is also clear that it had a significant upgrade in terms of wall linings, ceiling described, as I say, by Scott Seymour as “black paper and chicken wire”, the installation of a kitchen, the change of the doors, the door out on to the deck and the door internal, the installation of windows, all of which I am satisfied, having heard from Mr Holmes, would have been consentable works. Certainly, if it was intended to link the main residence with the sleepout, that too should have been included. It was not.
[11] The Judge’s conclusion was:9
I conclude that that should have been the subject of consent, and therefore it is clear that the territorial authority had grounds for and were entirely justified in their issuing of the notices to fix. Not all work done on that sleepout predated the Act. It follows, therefore, that it was incumbent upon
5 Auckland Council v Seymour, above n 1, at [14]: “The reason this first issue is critical to the prosecution is on account of the effect of s 8 Building Act 1991, which states: ‘…Except as specifically provided to the contrary in this Act, nothing in this Act shall be read as requiring any building, the construction of which was completed or commenced before the coming into force of Part VI of this Act, to meet the requirements of the building code’”.
6 At [15].
7 At [87].
8 At [89].
9 At [93].
the defendant to engage with the council and resolve the differences. Importantly, having received the notices to fix he was required to comply, and he did not.
[12] And:
[96] I also find that when the new service line was installed that the facilities were then connected. The fact that they were to be reconnected was never expressly notified to the territorial authority. Accordingly, any consent given at that time could not be construed to have authorised that connection and it amounts to new work that should have been the subject of express consent, and not obliquely referred to by the owner as “proposed” connections to WC/GT.
[97] I also find that there was no express indication on any plans of an intention to join the new extension to the sleepout. That too was new work and does not feature on any plan furnished to the territorial authority in 1994 or 1995. It too should have been included so it could have been approved. It was not part of the consent granted. I also find as a fact that the owner did the following works:
(a) Relining of all the internal surfaces, including the ceiling. (b) Installation of a kitchen.
(c) Installation of windows.
(d) Installation of a replacement doors, replacing the ranchslider
(external), and an internal sliding door with standard doors.
[13] Mr and Mrs Seymour’s argument is that the Judge’s findings do not tie back to the notice to fix. The notice was based on the determination. It is referred to in the notice. The work the Judge found to be done by Mr and Mrs Seymour is not specified in the notice as work needing to be fixed.
[14] Ms Paterson for the Auckland Council submits that the notice complies with the requirements of s 164 of the Building Act 2004, the section which gives the power to issue a notice to fix:10
4.25It was very clear that the notice related to the sleepout at 39 Onedin Place. The street address was provided, and the “building name” was specified as “residential dwelling and out-building”. Further, the notice very clearly specified:
The utility building established under building permit in 1981 is currently in use as a self-contained dwelling unit. Work giving effect
10 Respondent’s submissions on appeal, dated 17 March 2015.
to the conversion was undertaken without building consent when
consent was required under section 32 of the Building Act 1991…
4.26The notice then went on to specify, as well as the Council was able to at the time, the building works that the respondent had reasonable grounds to believe had been completed without consent when consent ought to have been obtained. Section 164 does not require that level of detail. The particulars were made with as much specificity as was possible, having regard to the available evidence. There was no room for the appellants to be in doubt as to which building the notice related to. Although there is no requirement in s 164 of the Building Act to do so, in good faith the Council endeavoured to specify the work required to be done, on the basis of the information it had to hand.
4.27Council is not a building or planning consultant. It is not for Council to act as an adviser to people with whom it interacts. In this case, the Council specified as best it was able the works it considered on reasonable grounds were required to be done to fix the property. Thereafter, it was incumbent upon the appellants to resolve the issues and ensure the matters of non-compliance were rectified.
[15] I have reached a clear view that, on the facts found by the Judge, Mr and
Mrs Seymour should not have been convicted.
[16] Section 164 of the 2004 Act required the Auckland Council to issue Mr and Mrs Seymour the notice to fix because it considered on reasonable grounds (the determination) that they were failing to comply with the Act.
[17] It is true, as Ms Paterson submits, that s 164 simply provides for the issue of a notice requiring the party “to remedy the contravention of, or to comply with, this Act or the regulations” and does not require the level of detail that the notice to fix in this case contained. Indeed, it is silent on what should be specified in a notice. But, the notice to fix in this case did set out “the specific works that fail to comply”. These were related back to the determination. So, the Auckland Council told Mr and Mrs Seymour that the works were non-compliant and told them what to fix. The only reservation was:
Please note that the above description includes only those non-compliant items that are known. Further items may be identified during any building approvals process initiated and may be subject to further Notices to Fix.
[18] A person charged with a criminal offence has some basic procedural rights. One is to know the case against him. As the Court of Appeal has emphasised, “an
accused is entitled to know, with all available particularity, the substance of that with which he is charged”.11 This right is enshrined in both the New Zealand Bill of Rights Act 199012 and the Criminal Procedure Act 2011.13 The key purpose of the right is to ensure that the defendant has sufficient information about the jeopardy he faces in order to allow him to prepare to meet the prosecution’s case against him. That information enables the defendant to make decisions about how to plead,
whether to engage a lawyer, what investigations need to be made so that he may defend himself and what form of procedure should be followed.14 The degree of particularity that must be revealed to the defendant will depend, of course, on the nature of the case.15
[19] It follows from this that a defendant has the right to have the charge against him decided on whether or not the prosecution has proved its case on the basis on which it was brought. In other words, the prosecution must prove the essential elements of the charge against him. The essential elements of the offence include both the legal elements of the offence and the factual particulars essential to the prosecution’s case. As the Chief Justice identified in R v Mead (writing on the
principle of jury unanimity)16: “The statutory elements [of an offence] will need to
be anchored to the facts relied upon by the prosecution as the basis of liability and put in contention by the defence”.17 Her Honour identified that the particulars contained in the count assist in identifying the essential elements in the case.18
[20] Here, the charge was that the notice to fix was not complied with. Failing to comply with the specific requirements set out in that notice is an essential element of
11 R v Gamble [2012] NZCA 91 at [31].
12 New Zealand Bill of Rights Act 1990, s 24(a): “Everyone who is charged with an offence shall be informed promptly and in detail of the nature and cause of the charge”.
13 Criminal Procedure Act 2011, s 17(4): “A charge must contain sufficient particulars to fully and
fairly inform the defendant of the substance of the offence that it is alleged that the defendant
has committed”.
14 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: a commentary (Lexis Nexis, Wellington, 2005) at 732; Paul Rishworth, Grant Huscroft, Scott Optican and Richard Mahoney The New Zealand Bill of Rights Act (Oxford University Press, 2003) at 600.
15 Police v Wyatt [1966] NZLR 1118 (CA) at 1133.
16 That is, the principle that a jury must be unanimous to the essential ingredients of the offence.
17 R v Mead CA146/01, 31 July 2011 at [15] (per Elias CJ).
18 At [17]. I acknowledge that her Honour’s judgment was a dissent, but her approach was later adopted by the Court of Appeal in Carlos v R [2010] NZCA 248 in which it held that an essential element of the charge of attempting to obtain a pecuniary advantage by deception is the establishment of the representation stated in the particulars of the charge.
the offence. The Judge found that the work that the notice specified as failing to comply was not the responsibility of Mr and Mrs Seymour to fix. That should have been the end of the prosecution. It was not open to the Judge to, in effect, find the charge proved on a basis different to the one on which it was brought.
[21] My finding on this issue means that the remaining issues fall away. The Auckland Council has the Judge’s view that other works identified in the evidence should have been consented. If it concurs then it will have reasonable grounds to consider that Mr and Mrs Seymour are in contravention of the Act, and another notice to fix must be issued.
Decision
[22] The appeal is allowed. The convictions and the sentences are quashed.
Brewer J
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