Auckland Council v Samyak Trustees Ltd [2021] NZDC 4416 (10 March 2021)

Last Updated: 22 September 2021

IN THE DISTRICT COURT AT WAITAKERE I TE KŌTI-Ā-ROHE KI WAITĀKERE

CRI-2020-090-002053

[2021] NZDC 4416

AUCKLAND COUNCIL

Prosecutor v

SAMYAK TRUSTEES LTD Defendant

Hearing:	10 March 2021
Appearances:	A Schaaf for the Prosecutor M Atkinson for the Defendant
Judgment:	10 March 2021

NOTES OF JUDGE K J GLUBB ON SENTENCING

[1] Samyak Trustees Ltd appears before the court on five charges of carrying out building work without consent. The Trust has pleaded guilty to those charges and is for sentence. I note that Mr Ranchhod, the director of that trust, is in court today in support of the Trust.

[2] The facts are, this prosecution relates to building work undertaken at 965 Old North Road, Waimauku. That was a four-hectare property. Prior to the defendant’s ownership of that property, the buildings were consented and built on the left side of the property, half way up the boundary.

AUCKLAND COUNCIL v SAMYAK TRUSTEES LTD [2021] NZDC 4416 [10 March 2021]

[3] There were further consents given and ultimately a certificate of compliance was issued on 20 August 2018 under the Resource Management Act 1991 for the Ranchhod Group to utilise the existing barn as a home occupation to operate a yoga and meditation wellness studio. That code of compliance had certain requirements, one of which was one person was to be living on the property during the hours of operation between 7 am and 7 pm, Monday to Friday.

[4] On about 30 October 2019, the Council received a notification from a contractor working at the property regarding potentially dangerous work. An officer visited at the property and met the builder on site and confirmed that he had been contracted to undertake minor alterations to the main dwelling bathrooms. They were advised that other work on the property had been undertaken by someone else. The Council officer undertook an inspection and noted significant work had been undertaken on the existing dwelling and the outbuildings, and that they were now capable of being used as a hostel.

[5] The work noted was not shown on the original building plan. It was a new veranda of 20 square metres attached to the existing dwelling, an additional bathroom installed with associated plumbing at the existing dwelling, a new veranda exceeding 20 square metres attached to the existing barn, an extension to the existing barn with an additional sanitary fixture installed with associated plumbing, and five new restroom cubicles with associated plumbing and drainage installed. The Council has filed photographs of that work with the summary of facts and I have reviewed them.

[6] It is also noted that the wastewater treatment system at the property was not set up for the additional plumbing fixtures installed.

[7] The inspector was not able to fully inspect the property at that time, and subsequently returned upon 4 November 2019 by arrangement with the owners. An inspection was completed, which was able to confirm that sanitary fixtures had been added to the existing barn so that it could be used as a hostel. The verandas were photographed, and it was at that stage that the inspector was advised that the code of compliance for the use of the property as a yoga studio had been obtained.

[8] Following that visit, the Council issued a notice to fix which related to all the unauthorised work detailed. The defendant had until 25 February 2020 to complete that work or remove the unauthorised work. There were ongoing meetings and discussion about how to remedy the circumstances.

[9] On 9 March, the Council again inspected the property, confirmed that the veranda structures connected to the main building had been removed in compliance with the notice to fix, but no other work appeared to have been undertaken.

[10] In terms of the aggravating factors of this offending, there is a degree of premeditation. I am satisfied that this was to a moderate level. Clearly there had previously been a code of compliance sought so that it could be used in a manner consistent with the proposed usage, but thereafter, despite obtaining that certification, nothing further was done in terms of getting this work certified.

[11] The defendant claims that he relied upon tradespeople, and the submission essentially is that he should have been able to rely on those tradespeople undertaking this work. What I simply observe is it is the defendant’s responsibility, and that failure to undertake the necessary inquiries with council that should have been made does not in any way absolve responsibility, and as the defence has acknowledged, that is accepted by virtue of the pleas that have been entered.

[12] There is the potential for harm. One wall had been replaced and substituted for windows. There had been verandas that had been installed which were below code, as detailed in the summary. Specifically, that it would fail over time was the observation in the summary of facts. It is also noted that the wastewater system was not sufficient, although I am advised by the defence that in fact there had been an upgrade to the septic tank system to take the additional load that might be forthcoming from the additional toilet facilities that had been installed.

[13] Another matter I look to is the permanence of the alterations that had been made. I am satisfied that these were permanent fixtures that had been put in place, and but for the intercession of the Council, they would have been on site unconsented or observed. There is the scale of the offending. I am satisfied it was moderate in the

circumstances. I do not accept that these were minor alterations. There was a wall removed, there were additional bathrooms put in place and verandas installed in that way. I see that as moderate.

[14] I do not see any mitigation in terms of this offending.

[15] The prosecution has filed submissions. They submit a starting point in the range of $35,000 to $40,000 in a global sense, and thereafter, a discount for a plea and good conduct. The discount of 25 per cent for plea and five per cent for good conduct.

[16] Defence counsel have filed comprehensive and helpful submissions as well. Starting point there, they observe, is $15,000 to $20,000, and a 30 per cent discount for plea and good conduct.

[17] I make reference to a number of authorities that have been cited, specifically Wilson v Fowler.1 That was a decision of the High Court prior to the amendment to the legislation which doubled the penalties for offending under this Act. That traversed the approach to sentencing in such cases, and I follow that. There is also Banora v Auckland Council, a decision of Gault J.2 That reflected the increase and brought sentencing ranges up to date in consequence.

[18] The prosecution has also made reference to the decision of Abatal Ltd v Waitakere City Council, a decision from 1999. The significance of that judgment is where the Court notes:3

There was undoubtedly a real financial incentive to cut corners and proceed without building consent. It is the Court’s job to ensure that fines operate to blunt such financial incentives.

[19] Whilst I make that observation, there is no suggestion here that the actions of the defendant were deliberate and for the purpose of cutting corners. As counsel for the defence has observed in submissions made, the defendant has in fact already felt the force of the failings to obtain consents, given the work that was done has had to be

1 Wilson v Fowler HC Auckland AP203/98, 16 March 2009.

2 Banora v Auckland Council [2019] NZHC 2545.

3 Abatel Ltd v Waitakere City Council HC Auckland A24/02 5 July 2002 at [15].

undone and it has incurred significant cost in consequence. Whilst that is a factor the Court appreciates, it is not something that impacts upon the ultimate sentence imposed.

[20] There is also Auckland Council v Plastertech Systems Ltd, Tasman District Council v Wallenweber and Porirua City Council v Johnston.4 The defence has also made reference to the Porirua City Council, and The Wanaka Gym Ltd v Queenstown Lakes District Council.5

[21] Mr Atkinson placed some weight on both an assessment of the Wanaka decision and the Porirua City Council decision. What I observe is that both of those sentencing outcomes arose prior to the amendment to the legislation. Starting point in the Wanaka case was $14,000, and in the Porirua City Council case, was $10,000. Simple arithmetic would suggest that a much higher starting point would have been adopted under the current regime.

[22] For present purposes, the starting point that I identify and adopt for each of those charges is one of $5,000. Cumulatively, that is $25,000 as a global starting point. I do not place it as high as the Prosecution have sought, and nor do I place it as low as defence seek. I am satisfied that the course of conduct undertaken on this occasion was such that it needs to be met by appropriate sanction, and the culpability is properly reflected in a starting point of $25,000.

[23] I recognise that the plea was entered at an early opportunity and also that there is no evidence of any prior failing on the part of the defendant. Accordingly, I give 25 per cent for plea and five per cent for good conduct, which appears, from review of the authorities, to be consistent with discounts applied on other occasions. Where that then gets me to is; from a start point of $25,000, 30 per cent is $7,500, brings me down to $17,500.

[24] On that basis, I convict and sentence the defendant on each charge to be fined the sum of $3,500. I also award court costs in the sum of $130 on CRN 423.

4 Auckland Council v Plastertech Systems Ltd [2017] NZDC 21464; Tasman District Council v Wollenweber [2018] NZDC 24284; Porirua City Council v Johnston [2011] DCR 511.

5 The Wanaka Gym Ltd v Queenstown Lakes District Council [2012] NZHC 284.

Mr Ranchhod, I am sure we will not see you back before the Court. Any works to be done on that property moving forward, make sure they are consented.

[25] One final matter, I also make an order that 90 per cent of the global fine be awarded to the Auckland City Council pursuant to s 389 of the Building Act 2004.

Judge KJ Glubb

District Court Judge

Date of authentication: 22/03/2021

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.