Wanaka Gym Limited v Queenstown Lakes District Council
[2012] NZHC 2662
•12 October 2012
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
CRI-2011-425-000002
CRI-2011-425-000003 [2012] NZHC 2662
THE WANAKA GYM LIMITED AND FIONA CAROLINE GRAHAM
Intended Appellants
v
QUEENSTOWN LAKES DISTRICT COUNCIL
Intended Respondent
Hearing: 8 October 2012
Counsel: D More for Dr Graham
Dr Graham (Shareholder and Director) for the Wanaka Gym (by leave)
R S Cunliffe and T Surrey for Respondent
Judgment: 12 October 2012
JUDGMENT OF LANG J
[on applications for order granting leave to appeal to Court of Appeal]
This judgment was delivered by me on 12 October 2012 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
THE WANAKA GYM LIMITED AND FIONA CAROLINE GRAHAM V QUEENSTOWN LAKES DISTRICT COUNCIL HC INV CRI-2011-425-000002 [12 October 2012]
[1] Dr Graham is the sole director and shareholder of The Wanaka Gym Limited (“the company”). The events that give rise to the present application relate to a building that the company owns in Wanaka.
[2] The building was originally a joinery factory, but the company converted it to a commercial gymnasium. It then added a residential unit to the back of the building, with the gymnasium operating at the front. In or about 2000, the company applied to the Queenstown Lakes District Council (“the Council”) for a building consent permitting it to convert the gymnasium into low cost residential accommodation for visitors to Wanaka. The proposal was to create communal living facilities and a group sleeping area for guests.
[3] The application for a building consent set in motion a series of events that has seen Dr Graham at loggerheads with the Council for approximately 12 years. It has also led to significant litigation in both the District Court and this Court.
[4] In December 2008, the Council instituted a criminal prosecution against the company and Dr Graham in the District Court at Queenstown. The Council laid 14 informations against them alleging offences against the Building Act 2004 (“the Act”). The company faced nine charges, and Dr Graham faced five charges in her capacity as a director of the company.
[5] Following a defended hearing in November and December 2009, Judge Holderness found the charges proved.1 He subsequently imposed fines on Dr Graham and the company totalling $64,000, and declined an application to discharge Dr Graham without conviction.2
[6] The company and Dr Graham appealed to this Court against both conviction and sentence, but in a judgment delivered on 27 February 2012 French J dismissed
1 Queenstown Lakes District Council v Wanaka Gym Ltd & Anor DC Queenstown CRN
08059500156-169, 19 April 2010.
2 Queenstown Lakes District Council v Wanaka Gym Ltd & Anor DC Queenstown CRN
08059500156-169, 10 January 2011.
the appeals.3 The company and Dr Graham now seek leave to appeal to the Court of
Appeal against that decision.
Relevant principles
[7] There is no dispute regarding the principles to be applied in the present situation. This Court has the power to grant leave to appeal to the Court of Appeal under s 144 of the Summary Proceedings Act 1957, which relevantly provides:
144 Appeal to Court of Appeal
(1) Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 of this Act or against any determination of the High Court on a question of law arising in any general appeal:
Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.
(2) A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the [High Court] may grant leave accordingly if in the opinion of that Court 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] The leading authority on applications under s 144 is R v Slater.4 In that case, the Court of Appeal said:5
Section 144 was not intended to provide a second tier appeal from decisions of the District Court in proceedings under the Summary Proceedings Act. Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court, other than when the conditions it has specified in subs (2) and (3) are met and leave to appeal is granted. Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.
3 The Wanaka Gym Ltd v Queenstown Lakes District Council [2012] NZHC 284.
4 R v Slater [1997] 1 NZLR 211 (CA).
5 Ibid, at 215.
[9] Although the Court has a residual discretion to refuse to grant leave even where the criteria are satisfied, the discretion does not extend to granting leave where the requirements of the section are not satisfied. The Court cannot enlarge the jurisdiction by construing its discretion more broadly than the statute permits.6
The proposed question of law
[10] I gave Dr Graham leave to make submissions on behalf of the company. It became clear from her submissions that she views the proposed appeal as a means of re-litigating an extremely wide variety of issues. She is convinced that she has been persecuted by the Council over a very long period. She also believes that the Council instigated the criminal prosecutions as a convenient means of concealing grave errors that it made during the building consent process. She considers that the prosecutions form part of a much wider plan by the Council to force her out of business. Notwithstanding the force with which Dr Graham delivered her submissions, however, she did not succeed in formulating a question of law justifying leave to appeal to the Court of Appeal.
[11] Dr Graham’s counsel adopted a much more refined approach. He pointed out
that several of the charges alleged that the company had failed to comply with s
40(1) of the Act by carrying out building work otherwise than in accordance with a building consent the Council had issued on 21 July 2005. The building consent in question contained conditions requiring the building to comply with certain fire safety standards. These were shown on an approved plan that formed part of the building consent.
[12] Dr Graham and the company had defended six of the charges on the basis that the Council had imposed the fire safety standards unlawfully. Dr Graham’s counsel contended that, in imposing the conditions, the Council had wrongly classified the use to which the building was to be put. It ought to have imposed fire safety standards applicable to a building used as a dwelling by a single household unit. Instead, it imposed conditions that were far more onerous than the use of the
dwelling justified. The Council therefore imposed the conditions unlawfully.
6 Idem.
[13] The proposed question of law, as formulated by counsel for Dr Graham, is “whether, on all the evidence, the proper classification for the dwelling was as a single household or residential unit.”
The argument
[14] The New Zealand Building Code prescribes functional requirements and performance criteria that buildings must meet in their intended use.7 The intended use of a building must be matched to its classified use. Clause A1 of the Building Code classifies residential buildings under seven different categories. These are called classified uses. The classified use of a building determines the fire safety requirements (“prescribed acceptable solutions”) that the building must meet in
respect of the escape and spread of fire.
[15] The classified uses relating to residential buildings are:
Type Description
2.0 HousingApplies 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 six 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, nurses’ home, retirement village, time-share accommodation, a work camp, or camping ground.
2.0.3 Community care Applies to a residential building o ruse where a large degree of assistance or care is extended to the principal users.
[16] Under the Building Code, residential buildings that are classified as Detached Dwellings or Multi-Unit Dwellings under Types 2.0.2 and 2.0.3 are subject to less onerous fire safety standards than buildings classified under the remaining categories. An anomaly also exists in that the Building Code does not contain a prescribed acceptable solution for residential dwellings that fall within the “Group Dwelling” category.
[17] In the present case, the building consent imposed fire safety standards reflecting the prescribed acceptable solution for buildings classified under Type 3.0.2 as being for community service use. Dr Graham and the company contend that this was wrong. They say that the company’s building was always used, and intended to be used, as a dwelling for a single household unit. The Council should therefore have imposed the prescribed acceptable solution applicable to buildings classified under Type 2.0.2. Had that occurred, the building consent would have contained much less onerous fire safety conditions than it did. As a further consequence, the company and Dr Graham would not have been subject to the conditions that formed the basis of six of the charges that they faced.
Question of fact or law?
[18] There is a real issue as to whether it can properly be said that the Council imposed the fire safety standards at all. This is because the conditions in question originate from a report prepared by a fire safety expert that the company itself had engaged to provide it with advice in relation to the application for the building consent. The company provided the report to the Council in support of its application for a building consent. The report recorded that Dr Graham had “elected to upgrade the dwelling to a standard required of Visitor Accommodation notwithstanding the intent to continue with residential accommodation”.
[19] In addition, the company had expressly given an undertaking in similar terms when an application by the Council for a permanent injunction was adjourned part- heard in the Alexandra District Court8. It can therefore be argued that the Council
never classified the building as a single household unit at all. Rather, it accepted as
appropriate the fire safety standards that the company’s own expert proposed.
[20] Putting that issue to one side, the applicants must show that their proposed question is truly a question of law.
[21] Counsel for Dr Graham appeared to accept that the threshold issue of whether or not the building was used as a dwelling by a single household is an issue of fact. He emphasised, however, that important legal consequences flowed from determination of that issue. This led him to characterise the proposed question as raising an issue of mixed fact and law.
[22] The fact that important legal consequences may flow from a factual decision does not, however, alter the essential nature of that decision. A factual issue is not converted into an issue of mixed fact and law merely because it produces legal consequences.
[23] The starting point in the present case is s 7 of the Act, which contains a
definition of the term “household unit”. It relevantly provides as follows:
7 Interpretation
In this Act, unless the context otherwise requires,—
...
household unit —
(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
[24] The important feature of the definition for present purposes is that the building in question must be occupied, or intended to be occupied, exclusively as the
home or residence of not more than one household. The section does not, however, offer any assistance as to what is meant by the term “household”. This issue forms the basis of the dispute in the present case, because Dr Graham has always contended that the occupants of the company’s building at any given time co-exist as a single household.
[25] Judge Neave was required to determine whether Dr Graham’s argument was correct when he determined an application by the company to rescind an injunction that the Council had obtained against it on 8 August 2008.9 The Judge derived
assistance10 from two earlier authorities, both of which considered the meaning to be
given to the term “household”, albeit in different statutory contexts. In both cases the statute in question used the term “household”, but did not define that term. It was therefore left to the Court to ascertain its meaning.
[26] In Hopper Nominees Ltd v Rodney District Council11, Anderson J considered the meaning of the word “household” as that word is used in s 30 of the Rating Powers Act 1988. In doing so he observed:12
Such an intent is most consistent, I think, with the ordinary New Zealander’s concept of a “household”, namely “an organised family, including servants or attendants, dwelling in a house” (see the Oxford Dictionary (2nd ed)). The word “family” has a wide meaning adequate in modern use to connote relationships of blood or marriage or other intimate relationships of a domestic nature, including, for example, persons sharing a dwelling such as students or friends. The essential connotation of the term is familial domesticity.
In my judgment the institutional provision of board whether or without medical care and irrespective of the attentiveness of the providers of board, does not come within the ambit of the term “household” as such term is commonly understood in New Zealand society. The ordinary New Zealander would not regard as a “household” or institution which provides board as a commercial activity or as a community facility or service, such as a hotel, hospital or rest home. That persons may reside in an institution, even on a long-term basis, participating to a substantial degree in the organisation of the institution, submitting to the rules of it and recognising someone as the head of it, may frequently be features of, but are not definitive elements of, a “household”. If they were, a prison could be called
9 Queenstown Lakes District Council v The Wanaka Gym Ltd DC Christchurch CIV 2003 002 0265,
18 November 2008
10 Ibid, at [22] – [25].
11 [1996] 1 NZLR 239.12 Ibid, at 242.
a “household” as an acceptable description in ordinary use. Plainly any such
use would be simply wry.
[27] In Simmons v Pizzey13, the House of Lords rejected an argument that a place of refuge for women who had been ill-treated by their husbands or partners constituted a single household for the purposes of s 19 of the Housing Act 1961 (UK). In doing so, Lord Hailsham said:14
I do not find any of these references particularly helpful except to make clear to me that I would have supposed in any case that both the expression
‘household’ and membership of it is a question of fact and degree, there
being no certain indicia the presence or absence of any of which by itself is conclusive.
[28] His Lordship considered15 that three factors placed the use of the premises in that case outside the limits of what could be called a single household. These were the large number of residents at any given time, the fluctuating nature of the resident population and His Lordship’s view that it was “a temporary place of refuge for fortuitous arrivals.”
[29] Judge Neave adopted a similar approach. In determining that the company’s building could not properly be described as a dwelling for use as a single household unit, he said:
[27] It seems to me in this case the following factors are relevant:
a. There is considerable variance in the numbers at any given time;
b. There are large numbers of people involved in the occupation of the building;
c. There is a significant degree of restriction as a matter of contract on the freedoms of the occupant which is inconsistent with people being resident in a household;
d. The relatively short term of the residence;
e. The fact that there is no necessary connection with the others residing in the house;
f. There is no agreement of the residents to reside together;
13 [1977] 2 All ER 432.
14 Ibid, at441-442.
15 Ibid, at 442.
g. The whole raison d’être of the building essentially is commercial rather than domestic.
[30] French J adopted the same approach. She referred16 to findings that the Department of Building and Housing had made in a report that it prepared in response to several issues that Dr Graham had referred to it.17 The Department issued the report on 12 July 2011, well after Judge Holderness had convicted and sentenced the company and Dr Graham on the charges laid in the District Court.
[31] The report considered the issue of whether or not the company’s building had
been incorrectly classified, and concluded:
6.6Based on the design of the building and the evidence provided by the applicant about the intended use of the building, and how the building was being used through the time period of the building consent applications and issue of the building consent, I have come to the conclusion that the classified use of the building in terms of Clause A1 of the Building Code is closest to a group dwelling, in the broader category of Housing, as it is ‘... a building or use where groups of people live as one large extended family’ ...
[32] French J agreed. She said:18
[78] Having read the determination and the evidence, I am satisfied that there is no merit in the challenge to the legality of the fire safety conditions in the consent. It is unfortunate that the parties, including Wanaka Gym’s own fire safety report, have used the term ‘visitor accommodation’ , because it appears to have become a bone of contention ever since as to whether Tenby Street was visitor accommodation or not. Yet, in my view for present purposes, that debate is entirely irrelevant. What matters is the finding that it was not a single unit dwelling and that in the absence of an acceptable prescribed solution for a group dwelling use, the more onerous prescribed acceptable solution for [sleeping accommodation] purpose group was an appropriate proxy.
[79] I agree with the authority that the building is not a single residential unit.19
[33] The approach taken in each of these cases confirms my view that the question the intended appellants seek to have determined by the Court of Appeal is essentially
16 Fn 3 at [67] to [79].
17 Regarding conditions to a building consent and the use of a building at 155 Tenby Street, Wanaka,
Department of Housing and Building, Determination 2011/069, 12 July 2011.
18 The Wanaka Gym Ltd v Queenstown Lakes District Council, n 2 above.
19 The same conclusion, that it was not a single household unit, was reached by Judge Neave in
Queenstown Lakes District Council v The Wanaka Gym Ltd DC Christchurch CIV-2003-002-000265,
18 November 2008.
a question of fact. They do not challenge the test to be applied in determining whether the company’s building is used as a single household unit, or the essential reasoning that French J used to reach her ultimate conclusion. Rather, they seek to challenge that conclusion.
[34] As the cases referred to above demonstrate, the issue of whether or not a building is used as a dwelling for a single household unit is a question of fact and degree. The ultimate conclusion is reached through an evaluative process that takes into account all the factual issues that are relevant to the case in question.
[35] In reality, the intending appellants want the Court of Appeal to undertake the same exercise as that which was undertaken by French J. They hope that the Court of Appeal will reach a different conclusion applying the same test and based on the same set of facts.
[36] These factors persuade me that no question of law arises in the present case. The proposed question is purely a question of fact, and as such it falls outside the scope of s 144.
[37] Even if that was not the case, the intending appellants also need to show that the question raises an issue of general or public importance, or that it justifies the granting of leave for some other reason.
Does the proposed question raise an issue of general or public importance?
[38] Counsel for Dr Graham submitted that the approach taken by the Council in the present case has significant ramifications. He contended that a wide variety of residential buildings may now be classified as “Group Dwellings”, and may therefore be subject to much more onerous fire safety standards than is presently the case. By way of example, he submitted that student flats in metropolitan areas may now fall within this category. As a consequence, landlords and building owners will be faced with considerable extra expense to bring their buildings up to the required fire safety standards.
[39] This submission is answered in part by the fact that, as outlined above, the fire safety standards in the present case were not initiated by the Council. Rather, they were first suggested by the company’s own expert. Secondly, nearly three years have now passed since Judge Holderness found the charges proved. There is no evidence before the Court to suggest that his decision has prompted local authorities to alter their stance in the manner suggested by counsel for Dr Graham.
[40] The most compelling answer to the argument, however, is that each case in this area will turn on its own unique set of facts. The facts of the present case are only relevant to the present case. The proposed question therefore has no precedential value or significance beyond the present case. For that reason alone it cannot be said that the proposed question raises any issue of public or general importance.
Should leave be granted for any other reason?
[41] The conclusions I have already reached are sufficient to dispose of the application. I record, however, that counsel for Dr Graham stressed the significance of the present case for his client. He submitted that she is vitally affected by the convictions, and that they reflect seriously on her character.
[42] I do not regard these factors as justifying a grant of leave to appeal, particularly given my earlier conclusion regarding the nature of the proposed question. They do not bear in any way on the question that the intending appellants wish the Court of Appeal to consider. Moreover, the same argument could be advanced in many cases. It also needs to be remembered that the proposed question is only relevant to six of the fourteen charges that Dr Graham and the company faced. The convictions on the remaining charges will remain regardless of the outcome of any appeal to the Court of Appeal on the proposed question.
Result
[43] It follows that the intending appellants have not brought their proposed question within the parameters of s 144. The applications are accordingly dismissed.
Lang J
Solicitors:
Macalister Todd Phillips, Queenstown
Counsel:
David J More, Dunedin
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