Zhang v Auckand Council - [2019] NZCA 114

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA332/2018
[2019] NZCA 114

BETWEEN	JIANYING ZHANG Applicant
AND	AUCKLAND COUNCIL Respondent

CA333/2018
BETWEEN	WEN ZHI JIA Applicant
AND	AUCKLAND COUNCIL Respondent

Hearing:	8 April 2019
Court:	Miller, Collins and Toogood JJ
Counsel:	B J Meyer for Applicant Zhang (CA332/2018) SPH Elliott for Applicant Jia (CA333/2018) M R Harborow for Respondent
Judgment:	16 April 2019 at 11.30 am

JUDGMENT OF THE COURT

AThe applications for leave to adduce fresh evidence are granted.
BThe applications for leave to appeal are declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

This is an application for leave to bring a second appeal from a District Court decision in which the applicants were found guilty on charges of contravening the Resource Management Act 1991. They were convicted at trial before Judge Kirkpatrick,[1] and their appeal was dismissed by Moore J.[2]
[1]Auckland Council v Zhang [2017] NZDC 4596.
[2]Jia v Auckland Council [2018] NZHC 1133.
Jianying Zhang and her ex-husband, Wen Zhi Jia, live at 355 Richardson Road, Mt Roskill. Ms Zhang is the registered proprietor. We were told that they occupy separate parts of the building. The property’s zoning provides for one residential unit per 375 square metres gross site area.[3] Its total area is 905 square metres, so only two residential units are permitted.
[3]Auckland Council Auckland Council District Plan (Operative Auckland City − Isthmus Section 1999), Part 7: Residential Activity, r 7.7.2.1.
There is one house on the property. It has been configured so that the whole of the upper floor is a separate residential unit and the lower floor is divided into four separate units. One of them is set up as an acupuncture clinic, which is permissible. The others are residential. All of this was evidenced as a result of a search warrant. There is no planning approval and no evidence of existing use rights for this density of units.
Judge Kirkpatrick found a charge of contravening the density rule proved against both applicants.[4] He also found proved a charge against Ms Zhang of failing to comply with two council abatement notices.[5]
[4]Auckland Council v Zhang, above n 1, at [52].
[5]At [53].
The Judge fined the applicants.[6] He was satisfied they were guilty of deliberate offending undertaken for profit despite efforts by Auckland Council to get them to comply with the District Plan. The fines imposed on Ms Zhang totalled $20,000, and those imposed on Mr Jia were $15,000.
[6]Auckland Council v Zhang [2017] NZDC 8208.
On appeal before Moore J, the appellants sought to introduce a large amount of new evidence. Some of that new evidence related to Ms Zhang’s claim that she no longer had a beneficial interest in the property, although she was the registered proprietor at the relevant times, and Mr Jia’s claim that he was merely a head tenant who was subletting the property. Moore J declined to admit the evidence…

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: [2019] NZCA 114
Decision Date: 16 April 2019

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard two appeals from the applicants, Jianying Zhang and Wen Zhi Jia, against the Auckland Council. The applicants were found guilty by the District Court of contravening the Resource Management Act 1991, and their appeals were dismissed by the High Court. The applicants sought leave to bring a second appeal, claiming that the hearings below miscarried because they were self-represented and not made aware of the availability of legal aid. They also argued that the sentences imposed on them were too harsh given their financial circumstances.

The legal issues before the court were whether the applicants' self-representation led to a miscarriage of justice and whether the sentences imposed on them were appropriate. The court considered whether the applicants were aware of their rights to legal representation and legal aid, and whether the lack of legal representation affected the fairness of the proceedings. The court also examined the severity of the sentences in relation to the applicants' culpability and the nature of their offending.

The court found that there was no evidence that the applicants were unaware of their rights to legal aid, as they had been informed of these rights when the search warrant was executed and in subsequent documents. The court also noted that the applicants had chosen to represent themselves and had run available defences. The court was not persuaded that the absence of legal representation led to a miscarriage of justice, and the applicants had not shown that the issue was capable of serious argument. Regarding the sentences, the court found that the applicants' offending was profit-driven and their culpability substantial, and the sentences imposed were not inappropriate.

The Court of Appeal declined the applications for leave to appeal. However, the applications for leave to adduce fresh evidence were granted, allowing the applicants to present new information in support of their appeals. The court emphasised that the applicants' self-representation did not necessarily lead to a miscarriage of justice, and the sentences imposed were appropriate given the nature of their offending. The court did not find it necessary to consider the extent to which courts are obliged to assist lay defendants in this case.

Orders