Christchurch City Council v McLeod [2017] NZDC 20404 (11 September 2017)

Last Updated: 6 March 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT CHRISTCHURCH

CRI-2016-009-009370

[2017] NZDC 20404

CHRISTCHURCH CITY COUNCIL

Prosecutor v

NEIL JOHN MCLEOD LAI TAI LEUNG Defendant

Hearing:	11 September 2017
Appearances:	H McKenzie for the Prosecutor Defendants appear in Person
Judgment:	11 September 2017

NOTES OF JUDGE R E NEAVE ON SENTENCING

[1] The defendants, Neil McLeod and Lai Leung, are husband and wife and Ms Leung is also known as Anna McLeod. Together they own a property at [address 1], Christchurch, and Mr McLeod singly owns a further address at [address 2]. I do not think there is any dispute that the McLeods operate both those properties as boarding houses within the meaning of the Residential Tenancies Act 1986. Similar considerations apply to boarding houses under other legislation. They have been charged in respect of each of these properties with intentionally failing to comply with a direction given by a person authorised to give such a direction under the Building Act 2004. That is a somewhat convoluted way of expressing the situation which happened here, namely that the owners were given a direction by the Christchurch City Council that they wished to exercise their powers of inspection under the Building

CHRISTCHURCH CITY COUNCIL v NEIL JOHN MCLEOD [2017] NZDC 20404 [11 September 2017]

Act in respect of these properties. I will explain the statutory framework in a little more detail in a moment but the defendants initially defended the charge but after discussions this morning during which I pointed out that whilst complicated the statutory pathway along which the prosecution was proceeding was pretty clear and that the Council was entitled to inspect the properties in the circumstances concerned and that any refusal to allow them to carry out this inspection would be an offence. Much of the background to which Mr and Mrs McLeod referred me was essentially relevant to the issue of what penalty, if any, might be imposed in the event that a breach was established. After this discussion they accepted that the charge was justified and entered pleas of guilty and the matter then proceeded to consider what penalty, if any, should be imposed.

[2] An authorised officer of the Council, and there is no dispute that Mr Ford, who is the officer in question, was so authorised, is entitled at all times during normal working hours to inspect any building. The terms of that could not be wider. The purposes for which such inspections may take place are tolerably obvious. Clearly it is necessary to ensure that the requirements of matters such as the Building Act are complied with to ensure that buildings comply with the necessary codes and regulations so that they are fit for purpose and safe. There may be concerns to ensure that a property such as this is not overcrowded, is not insanitary, or has appropriate egress and safety precautions in relation to matters such as fire. That is not an exhaustive list. The powers of the Building Inspector for an inspection are even wider if there is building work being carried out and entry may be obtained at any time for that purpose.

[3] The defendants were at all times understandably concerned with the intersection between their obligations under the Building Act and the requirements on them as landlords under the Residential Tenancies Act, particularly insofar as it related to boarding houses. There are a number of relevant provisions in this respect. Section 66G of the Residential Tenancies Act notes that a tenant is entitled to the quiet enjoyment of the premises without interruption by the landlord or another tenant. That, of course, does not exclude the rights and obligations of the City Council in terms of its statutory duties under the Building Act or the Resource Management Act 1991. Under s 66I a landlord has a continuing obligation, including under subsection

(c), to comply with all requirements in respect of buildings, health and safety, under any enactment so far as they apply to the premises. So, clearly, the Residential Tenancies Act is not a code and that where there is an obligation on the landlord under other legislation clearly a landlord is required to comply with such an obligation.

[4] While a landlord under s 66Q may enter a boarding house at any time I think that is meant to be confined to the common areas of the boarding house because s 66R expressly notes that entry into the individual rooms let to the tenant is much more closely proscribed. Entrance can be obtained, obviously, at any time with the consent of the tenant freely given or there is an emergency and a landlord may also enter the room of a tenant under s 66R(2) if notice is given in the appropriate form under s 66S and, essentially, the entry is carried out under normal working hours. Section 66S provides a number of circumstances in which entry into the boarding room under such a notice may be given. Written notice is required and, importantly, s 66S(1)(c) permits entry by a landlord where it is necessary to enable the landlord to fulfil his/her obligations under this Act and, given that the landlord has requirements under the Residential Tenancies Act also to comply with the Building Act, I think that is ample authority for the entry, although I can see the argument the other way.

[5] As I understand it the Council were permitted to inspect some of the common areas of the properties, probably on more than one occasion, but the difficulty arose in relation to gaining entry to the individual rooms of the individual tenants. Mr and Mrs McLeod have had difficulties before with previous inspections which have upset the tenants, where there were adverse consequences for the tenancy and also they are concerned that they will end you being hauled before the Tenancy Tribunal for something over which they have no control. I have some sympathy for that view because it is an unfortunate consequence of modern life that if people are given an avenue of complaint they will invariably take it regardless of whether or not such a complaint is justified and it can be small consolation to the recipient of the complaint to have their position vindicated after all the worry and stress of any proceedings. But that is simply one of the hazards, to some extent, of business life in particular and ultimately if the McLeods find themselves on the receiving end of a complaint because the Council is properly exercising its statutory functions, and appropriate notice has been given under the Residential Tenancies Act, their position should be unassailable.

[6] One of the problems that arose here I think is just the sheer logistical difficulty of giving notice to all the individual tenants whose rooms may be required to be accessed as part of a Council inspection. At the end of the day providing notice is given and providing there is sufficient time for the compliance – and at least 24 hours is required under the Residential Tenancies Act – if a tenant is unable to be present then they will simply have to live with the inspection if the proper procedure has been followed.

[7] The Council endeavoured to explain to Mr and Mrs McLeod, and I have seen some of the correspondence that was sent, their obligations in this respect. Clearly Mr and Mrs McLeod did not appreciate the significance of the material they were being sent and it is perhaps unfortunate they did not take legal advice or if they did that it obviously was not satisfactory. I am also satisfied, however, that this is not a case of Mr and Mrs McLeod trying to be obstructive. They were simply trying to balance their numerous obligations to their tenants with the duties that were imposed on them by the statutes and I can well understand how they failed to appreciate that the Council was, in fact, following the appropriate statutory power. There is no suggestion here that the Council was in any respects unreasonable in what it was trying to do. There does seem to be some issue about whether or not some of the plumbing facilities were appropriately installed and there may be issues about consents being issued for those.

[8] I am quite satisfied that Mr and Mrs McLeod are, generally speaking, highly responsible landlords who do their best to ensure that the safety and interests of their tenants are protected and that to that extent both the McLeods and the Council are working to the same end. There is a tension between the Council’s obligations and powers and the duties on the landlords but there is a way through that I have already discussed and it is unfortunate that through misunderstanding I think rather than anything else the way became blocked in this case.

[9] Ms McKenzie was unable to give me any cases of which she was aware whereby the situation has arisen before and counsel assisting her, Ms Leeming, was unaware of any similar cases either.

[10] The maximum penalty is a fine of $5000 so, clearly, it is not the most significant offence on the statute books and given the fact that I am quite satisfied there was no intent to be obstructive on the part of Mr and Mrs McLeod, merely a misunderstanding on their part as to their obligations in this respect, I am prepared to adopt a tolerably lenient approach in this instance. Clearly, should the position be repeated in the future or if any other landlords should find themselves obstructive once the outcome of this case is pointed out to them, they could not expect the same degree of consideration and it think it is tolerably plain, but I want to make it absolutely clear, that I see no grounds for criticism of the City Council in this regard, although I would advise them in future to take into account in setting the timeframes for inspections that there may be considerable difficulties in making sure all the tenants receive appropriate notice and have been given the opportunity at least to have their consent considered.

[11] For all those reasons I believe that it is simply sufficient to enter a conviction and discharge in respect of each of these cases. No further penalty is required in these peculiar circumstances and, obviously, these judgments do not set a precedent for future defendants who I expect will become well and truly on notice of their obligations as a result of today’s hearing.

R E Neave

District Court Judge