Tan v Auckland Council - [2015] NZHC 3299

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-323 [2015] NZHC 3299

BETWEEN
CHIN KEON (DANIEL) TAN

Appellant

AND

AUCKLAND COUNCIL Respondent

Hearing: 30 November 2015

Counsel:

S C Price and S A Jammes for Appellant
T Hu and S P Symon for Respondent

Judgment:

18 December 2015

JUDGMENT OF BREWER J

This judgment was delivered by me on 18 December 2015 at 11:00 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Minter Ellison Rudd Watts (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

TAN v AUCKLAND COUNCIL [2015] NZHC 3299 [18 December 2015]

Introduction

[1] The appellant, Mr Tan, has been charged by Auckland Council (“the Council”) with one charge of carrying out building work without a building consent contrary to s 40 of the Building Act 2004 (“BA04”).

[2] Mr Tan is the project manager of the property being built. He argues that he cannot be charged under s 40 as he did not “carry out” any building work. In other words, he did not physically do any building work.

[3] The parties sought a pre-trial determination from the District Court on the interpretation of “carry out” in s 40. Judge Thorburn ruled that it includes the supervision and instruction of people who do the physical building work and held that the charge against Mr Tan was good.1 Mr Tan appeals that decision.

Facts

[4] Mr Tan is employed by Alpha Laboratories (NZ) Ltd (“Alpha”) to manage the expansion of a block of units in East Tamaki for use in a food processing business (“the property”).

[5] On 7 July 2014, an officer from the Auckland Council’s building compliance team visited the property. The officer observed that three of the four units on the property had been consolidated into one and there was a large air-conditioning system on the roof. Steel structures to support and brace the air-conditioning system had been installed as well as draining, plumbing and associated fixtures and pipe- work. In addition, part of the connecting fire-rated wall and the connecting fire-rated stud wall that separated the units had been removed. Internal partitioning had been installed and the interior walls had been clad with thermal and fire retardant panels.

[6] All of this building work required building consent. The Council had not received any application for building consent.

1 Auckland Council v Tan [2015] NZDC 18189.

[7] Mr Tan did not physically do any of the building work. His involvement was limited to instructing and supervising the actual builders.

[8] Mr Tan admitted knowing that the project needed building consent, but he had caused the work to be done to avoid delay.

The interpretation issue

[9] Section 40 provides:

40Buildings not to be constructed, altered, demolished, or removed without consent

(1) A person must not carry out any building work except in accordance with a building consent.

(2) A person commits an offence if the person fails to comply with this section.

(3) A person who commits an offence…

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.

Keep reading for free

Create a free CaseChat account to read Tan v Auckland Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NZHC 3299
Decision Date: 18 December 2015

CaseChat Overview and Summary

Chin Keon (Daniel) Tan appeals against the decision of Judge Thorburn of the District Court that he is liable for building work carried out without consent. The appeal was heard by Brewer J in the High Court. Mr Tan was charged with building work carried out without consent contrary to s 40 of the Building Act 2004. He was the project manager of the property in question and did not physically do any of the building work. He limited his involvement to instructing and supervising the actual builders. Mr Tan admitted knowing that the project needed building consent but had caused the work to be done to avoid delay. The issue before the Court was whether the term “carry out” in s 40 of the BA04 is limited to the physical carrying out of building work or does it include the supervision or instruction of those who physically carry out building work. The Court considered the ordinary meaning of the term, the purpose of the Act, the internal and external statutory context, whether either interpretation will result in absurd consequences and the principle of lenity. The Court concluded that the term “carry out any building work” in s 40 of the BA04 is not limited to the physical carrying out of building work but includes the supervision or instruction of those who physically carry out building work. The appeal is dismissed.

Orders