Seymour v Auckland Council - [2015] NZHC 743

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 Respondent

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 743
Decision Date: 17 April 2015

CaseChat Overview and Summary

Miles John Stanley Seymour and Yvonne Cecelia Seymour appeal their convictions and fines for contravening building regulations in relation to a sleepout attached to their house. The Auckland Council prosecuted the Seymours after they failed to comply with a notice to fix issued under the Building Act 2004. The Seymours argue that the notice to fix did not properly apply to them and that the work they did did not require consent. The key issues for the court were whether the notice to fix applied to work done by the Seymours, whether the work they did required consent, and whether the fines were excessive. The court found that the notice to fix did not properly apply to the Seymours because it related to work done before they owned the property and before the Building Act 1991 came into force. As such, the Judge erred in convicting the Seymours on the basis of the notice to fix. The appeal is allowed and the convictions and sentences are quashed.

The court's reasoning focused on the proper application of the notice to fix. The notice related to work done on the sleepout before the Seymours owned the property and before the Building Act 1991 came into force. The court found that the notice to fix did not properly apply to the Seymours because it related to work done before their ownership and before the Act came into force. As such, the Judge erred in convicting the Seymours on the basis of the notice to fix. The remaining issues about whether the Seymours' work required consent and the amount of the fines fall away because the Seymours should not have been convicted.

Orders