Wellington City Council v PLS Consulting Limited [2021] NZDC 12506 (22 June 2021)

Last Updated: 16 July 2021

IN THE DISTRICT COURT AT WELLINGTON I TE KŌTI-Ā-ROHE KI TE WHANGANUI-A-TARA

CRI-2020-085-001021 [2021] NZDC 12506

WELLINGTON CITY COUNCIL Prosecutor

v

PLS CONSULTING LIMITED Defendant

Hearing:	22 June 2021
Appearances:	N Whittington for the Prosecutor R Flinn for the Defendant
Judgment:	22 June 2021

ORAL JUDGMENT OF JUDGE B P DWYER

[1] PLS Consulting Limited (PLS or the Defendant) has pleaded guilty to one charge of breach of s 9(3) of the Resource Management Act 1991 by using land for undertaking earthworks at 87 Sar Street, Wellington in a manner that did not comply with the Wellington District Plan. The earthworks were not authorised by ss 10 or 10A of the Resource Management Act and breached terms of resource consent SR 397162, which allowed the earthworks. The charge is contained in charging document ending 0298.

WELLINGTON CITY COUNCIL v PLS CONSULTING LIMITED [2021] NZDC 12506 [22 June 2021]

[2] Section 24A of the Sentencing Act 2002 is not applicable. No suggestion has been made that the Defendant should be discharged without conviction and it is hereby convicted of the charge against it.

[3] In preparation for this sentencing, I have considered the agreed summary of facts and the very helpful sentencing submissions filed by the parties. Having done so, I consider the factual background is adequately canvassed in paragraphs 2.2 to 2.10 of the Prosecutor’s submissions which I will simply incorporate into the written record:

• 2.2 The offending occurred at 87 Sar Street, Wadestown, Wellington, legally described as Lot 2 DP 11333 (the site). Craig Christopher Ell and Beverly Anne Ell are the registered proprietors of the site.
  
• 2.3 On 22 December 2017 Wellington City Council (Council) granted land use consent (SR 397162) for the site for a multi-unit development and associated earthworks (consent). The consent holders are Mr and Mrs Ell.
  
• 2.4 PLS was engaged by Mr and Mrs Ell as the project manager for the development. PLS has had, via its sole director Mr Phillip James Stewart, sole responsibility for the management of the site and compliance with the conditions of the consent.
  
• 2.5 On 16 October 2019, the Council reminded PLS of the need to comply with the conditions of consent, including conditions relating to the supervision of earthworks to ensure the stability of the land and that the work does not cause damage to neighbouring land. On 21 October 2019 the Council received a complaint that works at the site had done substantial damage to land at 83 Sar Street, undermined a tree, exposed sewage pipes and undermined the safety of the land.
  
• 2.6 On 21 October 2019 the Council's compliance officer Narendra Kumar visited the site and took photos. Those photographs showed shotcrete, soil and trees that had slipped and a broken pipe discharging to land.
  
• 2.7 The survey plan (dated 8 November 2019) showed the extent of the slip and encroachment into the neighbours' land. The plan showed that at the top of the cut the area was 4.5 metres in length, typically 0.5 metres wide and 0.86 metres at its widest point. The total area of the slip was approximately 2m2.
  
• 2.8 On 2 December 2019 the Council's consultant engineer inspected the landslip and undertook a geotechnical review of the site. The geotechnical review records that the actual extent of earthworks was greater than shown on the earthworks plans approved under the consent.
  
• 2.9 Work on the site was placed on hold pending compliance with notices to fix issued under the Building Act 2004 (dated 19 December 2019

and 24 January 2020) that required new building consents for a permanent engineered retaining solution.

2.10 The cut height and cut and fill area contravened rule 30.1.1.1(b) of the District Plan. The earthworks were not permitted under any other rule of the District Plan.

(footnotes omitted)

[4] I note the Defendant’s observation that it is not clear from the material before Court the extent to which the acknowledged contraventions of District Plan standards or resource consent conditions caused or contributed to the slip which might possibly have occurred even if the works were compliant with terms of the consent. The Council says that we do not know whether that is the case or not and I cannot resolve that question. What I can say is breach of conditions means that the earthworks were done illegally as they were not done as expressly authorised by the resource consent and arguably should not have been done at all.

[5] In addition to the physical damage to the neighbours’ property which is described in the summary of facts, a victim impact report from the neighbours was obtained which records.

Extent of damage, loss or harm inflicted

4.9 The earthworks undertaken by the defendant resulted in slope failure on the site and undermined the neighbouring property at 83 Sar Street. Jane McFarland and (Alan) Malcolm McFarland were the owners of 83 Sar Street at the time of the offending. The McFarland’s victim impact statement records:

• (a) that as a result of the offending they suffered physical, emotional and financial harm;
  
• (b) the danger posed by the subsidence made them fearful for the safety of their grandchildren and potential visitors; and
  
• (c) they were in the process of selling their house when the earthworks and slip occurred and damaged their property. As a result they had to delay the sale of their house and suffered financial loss when they eventually sold their property.
  

(footnotes omitted)

[6] The Defendant acknowledges that the slope failure could have caused stress and anxiety to the neighbours and in my view it is understandable that it might do so. The Defendant submits that immediately following the slip, stabilisation works were undertaken under engineering advice and supervision so things were put right as promptly as they could be. The Council accepts that its concerns about the stability of the neighbouring site have been addressed and an amended building consent for the engineered solution was obtained, so the Defendant acted to put things right. There is simply no evidence before the Court to prove any contention as to loss of value on sale and I have had no regard to that allegation in my considerations.

[7] The maximum penalty for this offending is the sum of $600,000. The Council has suggested an appropriate starting point for penalty considerations of $25,000 and PLS submits that the appropriate figure is $7,500. Obviously, both put the offending at the lower end of the scale of seriousness, although there is something of a gap between the two as to just where at the lower end this particular offending sits. The issues which have driven my sentencing outcome in this case are:

• The extent of damage caused to the neighbouring property;
  
• The need for compliance with terms of resource consents;
  
• Comparable cases.
  

[8] Insofar as the matter of damage is concerned, the works undertaken did cause slippage on the neighbouring property. Although limited in extent, it is understandable why this would be a concern to neighbours. It is apparent from the Tonkin + Taylor report which I have seen that the site was very steep and that there were apparent stability issues. As I have said, I am unable to resolve the issue as to whether slippage would have occurred in any event from the approved works but what is apparent is this was a job which required care and full compliance with resource and building consent conditions.

[9] Secondly, the need for strict compliance with the terms of resource consents is a matter of weight in my considerations. The reasons for that were set out in this

Court’s decision in Wellington City Council v Zhou cited at paragraph 6.19 of the Council’s sentencing submissions which stated:1

As a matter of general principle, compliance with plans provided in support of resource consents is important for a number of reasons:

• The plans filed with an application provide the basis on which consent authorities assess the effects of any given proposal. If the works are undertaken on a different basis, there may be entirely different effects to those which led to a consent authority granting approval in the first place;
  
• The plans filed enable potentially interested parties to identify and assess possible effects. Again, if any works are undertaken other than in accordance with the plans filed, there may be entirely different effects;
  
• Finally, the plans filed give supervising officers and interested parties a “hard” means by which they can measure progress of works and be satisfied that they are being undertaken as approved.2
  

[10] The Defendant is a contractor which should be aware of the obligation for strict compliance with building resource consent conditions, even noting the practical issues on the ground which were experienced.

[11] In terms of comparable cases, I refer particularly to the Zhou and Auckland City Council v DRT Construction Consultant Ltd cases where starting points of

$10,000 and $15,000 respectively were adopted.3 The extent of risk to stability of the

works in Zhou was the subject of considerable evidence and debate in that case, where a finding was made that there was no risk to the stability of the neighbouring site. That cannot be said in this case where there were stability issues, albeit limited and corrected, but giving understandable concern to the neighbour.

[12] Taking all of those matters into account, I determine that the appropriate penalty starting point is $15,000. No aggravating personal factors supporting any increase from that starting point have been taken into account by me. PLS is to receive a 20 per cent discount from starting point to reflect past good character (five per cent) and somewhat belated guilty plea (15 per cent).

1 Wellington City Council v Zhou [2019] NZDC 18314 (Zhou).

2 Wellington City Council v Zhou [2019] NZDC 18314 at [21].

3 Auckland City Council v DRT Construction Consultant Ltd [2017] NZDC 23751.

[13] There was some debate between counsel as to whether or not the guilty plea discount should be 15 or 25 per cent. That is a matter which must be considered in totality. The first call in this case was set for 12 June 2020. A not guilty plea was maintained as late as 20 November 2020 when directions for trial were made. A guilty plea was finally entered on 26 January 2021. PLS says that amendments to a charge were made and one charge withdrawn but that is not untypical of pre-trial processes and the Defendant has had the benefit of the withdrawal and the amendment of the charge. By seeking to also receive benefit of a full 25 per cent discount for guilty plea, the defendant effectively seeks a double benefit from the guilty plea. In my view, 15 per cent is a reasonable discount in this case where the matter had been set down for hearing.

[14] Accordingly, I determine as follows.

• PLS Consulting Limited is fined the sum of $12,000;
  
• It will pay solicitor costs as per the Costs in Criminal Cases Regulations 1987 (to be fixed by the Registrar if need be) and Court costs $130;
  

Finally, pursuant to s 342 Resource Management Act, I direct that the fine less 10 per cent Crown deduction is to be paid to Wellington City Council.

B P Dwyer

Environment/ District Court Judge