Wanaka Gym Limited v Queenstown Lakes District Council
[2013] NZCA 397
•27 August 2013 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA709/2012 [2013] NZCA 397 |
| BETWEEN | THE WANAKA GYM LIMITED |
| AND | QUEENSTOWN LAKES DISTRICT COUNCIL |
| CA710/2012 | |
| AND BETWEEN | FIONA CAROLINE GRAHAM |
| AND | QUEENSTOWN LAKES DISTRICT COUNCIL |
| Hearing: | 12 August 2013 |
Court: | Ellen France, Rodney Hansen and Mallon JJ |
Counsel: | J A Dean for Applicants |
Judgment: | 27 August 2013 at 11.30 am |
JUDGMENT OF THE COURT
The application for special leave to appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Rodney Hansen J)
Introduction
After a defended hearing in the Queenstown District Court, the applicants were convicted by Judge Holderness of 14 charges under the Building Act 2004 (the Act).[1] They were fined and ordered to pay costs. An application by Dr Graham for a discharge without conviction was refused.[2]
[1]Queenstown Lakes District Council v The Wanaka Gym Ltd DC Queenstown CRN-8059500156, 19 April 2010.
[2]Queenstown Lakes District Council v The Wanaka Gym Ltd DC Queenstown CRN-8059500156, 10 January 2011.
Their appeal to the High Court against conviction and sentence was dismissed by French J.[3] Their application for leave to appeal to this Court having been dismissed by Lang J,[4] they apply for special leave to appeal. They also apply for leave to adduce fresh evidence in support of the appeal.
Factual background
[3]The Wanaka Gym Ltd v Queenstown Lakes District Council [2012] NZHC 284.
[4]The Wanaka Gym Ltd and Fiona Caroline Graham v Queenstown Lakes District Council [2012] NZHC 2662.
The alleged breaches of the Act relate to a property in Tenby Street, Wanaka. It is owned by The Wanaka Gym Ltd (Wanaka Gym). Dr Graham is the sole shareholder and director of the company.
The building was originally a joinery factory. It was converted to a commercial gym. A residential unit was added to the rear with the commercial gym operating at the front. In about 2000, Dr Graham decided to close the gym and convert the building into low-cost residential accommodation. The target market was young people visiting Wanaka. It was envisaged that there would be communal living facilities and a group sleeping area.
Since the plan was first mooted in 2000, there has been a succession of disputes and legal proceedings between the applicants and the respondent, the Queenstown Lakes District Council (the Council). The issue of particular relevance to the present application is the conditions relating to fire standard requirements attached to a building consent issued by the Council in 2005.
Six of the 14 charges faced by the applicants arose out of the failure to meet those fire standards. Although not at the forefront of their case in the District Court, on appeal the applicants argued that the fire standard conditions had been imposed unlawfully. Their case is that the conditions are inapplicable to the building as it was intended to be used and has been used. The applicants’ argument is that the convictions based on the failure to comply with the fire standards should be set aside.
The Building Code classifies residential buildings under seven categories, called classified uses. The classified use of a building determines the fire safety requirements or “prescribed acceptable solution” as they are termed, that the building must meet. Those classified uses are as follows:[5]
[5]See Building Regulations 1992, sch 1, cl A1.
| TYPE | DESCRIPTION |
| 2.0 Housing | Applies to building or use where there is self care and service (internal management). There are three types. |
| 2.0.2 Detached dwellings | Applies to a building or use where a group of people live as a single household or family. Examples: a holiday cottage, boarding house accommodating fewer than 6 people, dwelling or hut. |
| 2.0.3 Multi-unit dwelling | Applies to a building or use which contains more than one separate household or family. Examples: an attached dwelling, flat or multi-unit apartment. |
| 2.0.4 Group dwelling | Applies to a building or use where groups of people live as one large extended family. Examples: within a commune or marae. |
| 3.0 Communal residential | Applies to building or use where assistance or care is extended to the principal users. There are two types: |
| 3.0.2 Community service | Applies to a residential building or use where limited assistance or care is extended to the principal users. Examples: a boarding house, hall of residence, holiday cabin, back country hut, hostel, hotel, motel, nurse’s home, retirement village, time-share accommodation, a work camp, or camping ground. |
| 3.0.3 Community care | Applies to a residential building or use where a large degree of assistance or care is extended to the principal users. |
The Council classified the proposed building as “Visitor Accommodation”, a term used in the Council’s District Plan, though not in the Act or the Building Code. The question of whether this classification was correct itself became what French J described as a bone of contention[6] which served to divert the parties from the real issue. That is whether the fire safety standards applicable to the building should have been those required for a single unit residential dwelling (as contended by the applicants) or, as the Council maintains, for a group dwelling.
[6]The Wanaka Gym Ltd v Queenstown Lakes District Council, above n 3, at [78].
The fire safety requirements for residential dwellings are less onerous than those for buildings in the remaining categories. The Building Code does not prescribe a fire safety standard for buildings in the group dwelling category. The conditions attached to the consent were the prescribed acceptable solution “C/AS1” for the sleeping accommodation (SA) purpose group which corresponds to the 3.02 community service category. They exceed the standard required for group dwelling use but, in the absence of a prescribed solution, provide an acceptable outcome.
The applicants elected to upgrade the building to that standard, notwithstanding their view that a lesser standard would have been acceptable. They say they did so because of an undertaking they gave under pressure at an earlier hearing in which the Council sought an injunction. We find that explanation unconvincing as the undertaking, given two months before the applicants made their proposal to the Council, did not commit them to the standard they agreed to meet. As French J observed,[7] it would always have been open to Wanaka Gym to devise an alternative solution rather than rely on a prescribed acceptable solution. On that basis, French J concluded that the Council had never imposed the community service fire standard. She also rejected the applicants’ contention that the building should have been classified as a single household unit and that a lesser fire standard would have been sufficient.
Approach to application
[7]At [80].
This application is brought under s 144 of the Summary Proceedings Act 1957. The High Court may give leave to appeal against a determination of the High Court on a question of law arising in any general appeal. If leave is refused, the Court of Appeal may grant special leave to appeal. Leave will be granted only if the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.[8]
Conviction appeal
[8]Summary Proceedings Act 1957, s 144; and see R v Slater [1997] 1 NZLR 211 (CA).
The appellants say the findings of Judge Holderness and French J on the classification of the building and the fire safety standards imposed were erroneous. They pose the following questions of law:
(a)Whether as a matter of law the High Court was correct to classify the residential building as anything other than a single household unit.
(b)Whether as a matter of law the High Court was correct to hold that C/AS1 purpose group SA was the appropriate acceptable solution to meet the Building Code fire safety requirements for a residential building; and in particular those imposed by the intended respondent in respect of the residential building at 155 Tenby Street, Wanaka.
We acknowledge that it is at least arguable that a decision to impose a fire standard that exceeded what was required by the Building Code could give rise to a question of law. But, as we have already said, the Council did not impose the fire standards prescribed in the consent. It simply incorporated the acceptable solution put forward by the applicants themselves. Any question of law must arise from the Council’s prior determination that the building was visitor accommodation (a group dwelling in terms of the Building Code) and not, as contended by the applicants, a single household unit.
A single “household unit” is defined as follows in s 7 of the Act:
(a)means a building or group of buildings, or part of a building or group of buildings, that is—
(i)used, or intended to be used, only or mainly for residential purposes; and
(ii)occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household; but
(b)does not include a hostel, boardinghouse, or other specialised accommodation.
Mr Dean for the applicants sought to persuade us that the question of whether the building is a single household unit, in terms of the definition, is a question of law. He argued that Judge Holderness, in adopting the analysis of Judge Neave in the injunction proceedings,[9] took into account irrelevant considerations and overlooked relevant factors. However, in her decision French J independently reviewed the issue, relying on a determination of the Department of Building and Housing.[10] It is clear, as Lang J said,[11] that what was undertaken by all Judges who considered the issue was the evaluative process of applying the definition to the facts. Reduced to its essentials, the applicants’ case is simply that the lower courts reached the wrong conclusion on the evidence. A question of law does not arise where the fact-finding court has merely applied the law, which it has correctly understood, to the facts of an individual case.[12]
[9]Queenstown Lakes District Council v The Wanaka Gym Ltd DC Christchurch CIV-2003-002-268, 18 November 2008.
[10]Regarding conditions to a building consent and the use of a building at 155 Tenby Street, Wanaka Department of Building and Housing Determination 2011/69, 12 July 2011.
[11]At [34].
[12]Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25].
Even if it could be said that a question of law arises from the findings in the District Court and High Court, we are satisfied it would not involve a question of general or public importance or for some other reason justify the granting of leave. Mr Dean submitted that the interaction between the Act, the classified uses specified in the Building Code and the purpose groups which specify fire safety standards is confusing and appellate guidance would be helpful. He contended that although any decision would arise out of the particular facts of the case, it would have a precedential value as it has potential application to group dwellings numbering in the thousands. He said a decision would have particular application to classifications required for the purpose of the Christchurch rebuild. Mr Dean also referred to the substantial costs incurred by the Council in legal fees and the general public interest in the underlying dispute.
We are not persuaded that there would be anything to be gained by this Court exploring the issues raised by the applicants. As we have said, it would effectively involve undertaking the same exercise that has already been carried out at first instance and on appeal. Any findings would be fact-specific and of limited application to other cases. The dispute between Dr Graham and the Council has undoubtedly attracted considerable local media attention but we are unable to discern any wider interest that would be served by an examination of the issues at a second tier of appeal.
Sentence appeal
The question of law formulated for the purpose of the proposed appeal against sentence is:
Whether as a matter of law the High Court misapplied the s 107 ‘Gateway Test’ by restricting the inquiry into the direct and indirect consequences of a conviction to [Dr] Graham’s residential status, and excluding the direct and indirect consequences of a conviction on her career simpliciter.
The “gateway test” referred to is the stipulation in s 107 of the Sentencing Act 2002 that a Court must not discharge an offender without conviction under s 106 of the Sentencing Act unless it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
Dr Graham’s application to be discharged without conviction relied on the consequences of convictions for her career, particularly in Japan where she has previously resided and worked. Her achievements and qualifications are undoubtedly unique. She has developed close links with Japan since going there as an exchange student at the age of 15. She obtained a degree at Keio University and completed a doctorate in social anthropology at the University of Oxford. She undertook training to become a geisha. It was initially an academic project but she received permission to continue training, formally debuting as a geisha in December 2007. She is reported to be the first Caucasian woman to work in the role.
In the District Court, Judge Holderness rejected Dr Graham’s application for a discharge without conviction. He rejected a submission that the offending was minor. He said those offences relating to safety in the event of fire potentially compromised the safety of persons sleeping in the building. He did not accept that the company could be regarded as the principal offender. He said Dr Graham was the alter ego of the company and controlled its operations. Judge Holderness found that the possible consequences for Dr Graham’s employment prospects in Japan did not outweigh the seriousness of the offending.
The application was renewed before French J, supported by further evidence. She also rejected a submission that the offending was of a minor nature, assessing its gravity as in the medium to high category.[13] She examined expert evidence relied on by Dr Graham to show that a conviction would prevent her obtaining permanent residence in Japan in 2012 when her then current three-year visa expired. French J concluded that while the convictions would prevent her from obtaining permanent residence in 2012, it had not been shown that they would prevent her from obtaining a renewal of her visa or from eventually obtaining permanent residence.[14] She said the most that can be said is that the convictions will reduce her chances of attaining the outcomes she seeks. French J concluded that the direct and indirect consequences of convictions would not be out of all proportion to the gravity of the offending.
[13]The Wanaka Gym Ltd v Queenstown Lakes District Council, above n 3, at [168].
[14]At [175].
Mr Dean said that French J did not turn her mind to the direct and indirect consequences of a conviction for Dr Graham’s career, in particular her unique status as the first Western geisha and her academic career in the field of social anthropology.
We do not accept that French J did not turn her mind to the effect of convictions on Dr Graham’s career. That was an accepted consequence of any impediment to her renewing her visa and obtaining permanent residency. French J acknowledged this when, referring to Dr Graham’s claim to be the world’s foremost expert in her field, she commented that, if her international standing and contribution to Japanese society is as significant as is being claimed, the risk of non-renewal of her visa would be mitigated.[15]
[15]At [175].
Apart from the consequences that would flow from difficulties obtaining a visa or permanency residency, there was no evidence that convictions would otherwise jeopardise Dr Graham’s career as a geisha or as a social anthropologist. At the time she gave evidence before the High Court, she was continuing to practise as a geisha. The major difficulty she faced arose from her failure to pay affiliation fees as a result of the financial drain of the ongoing litigation with the Council.
We are satisfied that French J correctly applied the test in s 107 of the Sentencing Act. We are also left in no doubt that she was right to conclude that the direct and indirect consequences of convictions would not be out of all proportion to the gravity of the offending.
Result
The application for special leave to appeal is dismissed.
In the circumstances, it is unnecessary for us to deal with the application for leave to adduce further evidence.
Solicitors:
John Dean Law Office, Wellington for Applicants
Macalister Todd Phillips, Queenstown for Respondent
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