Western Bay of Plenty District Council v Addison [2023] NZDC 26442 (29 November 2023)

Last Updated: 8 December 2023

IN THE DISTRICT COURT AT TAURANGA I TE KŌTI-Ā-ROHE KI TAURANGA MOANA

CRI-2023-070-001129 [2023] NZDC 26442

WESTERN BAY OF PLENTY DISTRICT COUNCIL Prosecutor

v

JOHN MURRAY ADDISON Defendant(s)

Hearing:	25 July 2023
Appearances:	A Hopkinson for the prosecutor B Nabney for the defendant
Judgment:	29 November 2023

SENTENCING DECISION OF JUDGE DA KIRKPATRICK

Introduction

[1] The defendant, John Murray Addison, has pleaded guilty to a charge in CRN- 23070500491 that between 20 December 2021 and 13 November 2022 at or near 33 Fairview Place, Te Puke, he contravened or permitted a contravention of an enforcement order, namely Judge Harland’s enforcement order dated 23 July 2010, by permitting the implement shed at 33 Fairview Place, Te Puke, to be used as a dwelling, such activity not being authorised by a resource consent.

[2] This charge is an offence under s 338(1)(b) of the Resource Management Act 1991 (RMA) for which the maximum penalty under s 339(1)(a) is imprisonment for a term not exceeding two years or a fine not exceeding $300,000.

WESTERN BAY OF PLENTY DISTRICT COUNCIL v JOHN MURRAY ADDISON [2023] NZDC 26442 [29

November 2023]

[3] At the sentencing hearing a charge of contravening Rule 18.3.5(c) of the Western Bay of Plenty District Plan by using a rural zoned property for an additional dwelling without consent or other authorisation, was withdrawn.

Background

[4] The property is a 2.99ha lifestyle property planted with avocados approximately 2.5km south of Te Puke. It is located in a Rural Zone under the Western Bay of Plenty District Plan. It is surrounded by orchards and other rural activities to the south and east.

[5] There are two existing dwellings on the property, being the main dwelling built in 1981 and a self-contained cottage built in the 1960s. A single dwelling on a property in the rural zone is a permitted activity under Rule 18.3.1.d of the District Plan, but an additional dwelling requires resource consent as a non-complying activity under Rule 18.3.5.c.

[6] In April 2008 the defendant applied to the Council for building consent to construct a new implement shed with an attached lunchroom and including a toilet and handbasin. The plans showed a split-level building with a total floor area of 167m2. On 11 April 2008 the Council advised the defendant that the proposed building was considered to be an additional dwelling, being over 50m2 in area and fully self- contained, and accordingly required resource consent as a non-complying activity. The Council noted that it might not support the grant of consent as the property is less than 4ha in size and there are already two dwellings on the site.

[7] On 14 April 2008 the defendant replied, stating that his construction business would be operating from the shed and required office space with storage for files. The shed would also provide facilities for orchard workers and the proposed lunchroom may include a pool table.

[8] On 18 April 2008 the Council responded seeking further information, including written confirmation whether the building would be rented or whether it would be used for habitable purposes, and seeking further details about whether the business use

would comply with the relevant standards in the District Plan relating to home enterprises.

[9] On 24 April 2008 the defendant replied, stating that the building would be a shed and a lunchroom and therefore would not be rented or used for habitable purposes, and advising that the nature of his business was as a builder and so the use was self-explanatory.

[10] On 20 May 2008 the Council issued a building consent authorising the building of an implement shed with lunchroom, toilet and handbasin.

Previous prosecution

[11] As a result of a complaint in early 2009, the Council commenced an investigation into the use of the shed as a dwelling. That investigation led to a prosecution and is the subject of this Court’s decision in Western Bay of Plenty District Council v John Murray Addison,1 where her Honour Judge Harland (as she then was) convicted the defendant and fined him the sum of $7,682. As well, the Court made an enforcement order under s 339(5) of the RMA. As set out at paragraph [29] of the decision:

... The terms of the enforcement order will be that you are prohibited from permitting the implement shed at 33 Fairview Place, Te Puke to be used as a dwelling, unless you obtain resource consent allowing such use.

[12] The defendant has not obtained such a resource consent.

The offending in the present case

[13] On 20 September 2022 the Council received a complaint that the shed was being lived in. A Council enforcement officer inspected the property on 18 October 2022 and found that the shed was being used as a dwelling. There was a kitchen and lounge area with laundry hanging on a drying rack. Numerous household items were visible including an electric blanket, pot plant and ornaments. There were blinds on the windows and a TV aerial on the roof. There were children’s bikes and a body

1 DC Tauranga CRI-2009-070-003761, 23 July 2010.

board beside the implement shed. There was a small car parked outside which the enforcement officer found was registered to a woman who was living in the shed with her two children.

[14] The officer then spoke to the defendant, who told him that it was just being used as a smoko room. When the officer said that he had seen that someone was living in the shed, the defendant confirmed that someone had moved in the previous Sunday.

[15] The officer spoke again with the defendant on 26 October 2022 under caution. The officer advised that he had now found out that the defendant had previously been prosecuted for using the shed as a dwelling. The defendant responded that that occurred 20 years ago and that he had seen pamphlets issued by the Council allowing for additional housing on properties, so he thought that it was alright to use the shed as a dwelling now. The defendant confirmed that he had a tenant living in the shed with her two children and paying him rent.

[16] On 27 October 2022 the defendant wrote to the Council, stating that he had given the tenant notice, that she would be gone by 26 November 2022 and that the shed would now remain empty.

[17] On 9 November 2022 the officer conducted a formal interview with the defendant under caution, during which the defendant stated:

• (a) he is a self-employed builder;
  
• (b) he did not ignore the enforcement officer but thought that the rules had been relaxed;
  
• (c) he had built the shed as a smoko room and for storing building gear;
  
• (d) he was renting the shed as a favour and the tenant was the first in the shed since 2011;
  
• (e) he subsequently admitted his son had lived in the implement shed for 12 months at some stage before the current tenant;
  
• (f) the current tenant had only been in the shed about three days before the

inspection on 18 October 2022.

Relevant district plan provisions

[18] Activities in the rural zone of the Western Bay of Plenty district are regulated in s 18 of the District Plan. In s 18.1 a significant issue in the rural zone is stated to be the character and associated amenity of the rural environment, including a predominance of natural features over human-made features, a high ratio of open space relative to the building environment and low population density relative to urban areas. A cumulative effect of a fragmented pattern of rural subdivision and the establishment of additional dwellings for non-rural production purposes has led to inefficient use of physical resources and a gradual loss of rural character and degradation in rural amenity values. In s 18.2.2 the District Plan sets out the policies for the rural zone, including:

5. Subdivision, use and development of rural land for purposes other than primary production and which have the potential to inhibit the efficient and lawful operation of existing or designated network utility operators should be avoided or minimised. ...

22. Additional dwellings should not be provided for except where these are essential for management of the land for productive rural purposes.

Prosecutor’s submissions

[19] Counsel for the prosecutor submitted that an appropriate starting point for a fine would be between $40,000 - $50,000. He submitted that the principle of deterrence was critical in this case, being not only the general requirement for compliance with the rules of the District Plan but in particular compliance with Court orders.

[20] Counsel relied on the contents of the previous decision of this Court,2 including:

• (a) at [19] that the defendant had “got the message”;
  
• (b) at [21], members of the building industry need to clearly get the message
  

2. Western Bay of Plenty District Council v John Murray Addison DC Tauranga CRI-2009-070- 003761, 23 July 2010.

that where a Council says something is not permitted, it means exactly that; and

(c) at [23], people who deliberately flout the law need to appreciate that there will be consequences that cost.

[21] Counsel noted a previous decision of this Court stressing the seriousness of breaches of abatement notices.3 Counsel submitted that it is even more serious where there has been a breach of an enforcement order.

[22] In relation to the defendant’s statements that he thought there had been some change in the regime for dwellings, counsel advised that this was only so in the urban zones of the district, not in the rural zones. In any event, counsel submitted, even if there were relevant general information, that could not alter the effect of the Court order and the defendant should have checked the matter with the Council or a legal advisor before proceeding.

[23] Against that background, counsel submitted that the actions of the defendant were deliberate and that his high culpability was aggravated because of the existence of the enforcement order. Counsel also submitted the breach of the order was undertaken for a commercial motive, and on that basis submits that there must be a commercially meaningful sentence. While the period of offending lasted only one month, that was due to the timing of the investigation.

[24] In terms of the effects of the offending, counsel submitted that the issue of the maintenance and enhancement of amenity values depends on maintaining the integrity of the plan, referring to observations of this Court in Tasman District Council v Jager4 and in Auckland Council v Hannay.5

[25] In support of his submissions as to an appropriate starting point, counsel relied on the previous decision sentencing the defendant and on the comments in Jager. Counsel submitted that a stern approach is required for both specific and general

3 Southland Regional Council v Fernlea Farm Limited [2020] NZDC 10046 at [10].

4 Tasman District Council v Jager DC Nelson CRI-2014-042-1217, 15 August 2014 at [17].

5 Auckland Council v Hannay DC Auckland CRI-2014-004-4045, 2 October 2014 at [7].

deterrence. He submitted that in a district such as Western Bay of Plenty, there is real pressure on rural land arising from proximity to large and growing urban centres.

[26] In terms of personal considerations, counsel noted that the aggravating factor of a previous conviction justifies an uplift of 10 per cent but acknowledged that the adoption of a higher starting point and such an uplift should not result in a double counting of the aggravating effect of the previous conviction. Counsel noted that in Bay of Plenty Regional Council v Balance Agri-Nutrients Limited6 I added a 10 per cent uplift where there had been previous convictions 18 years and 3 years prior to the relevant offending.

[27] In terms of mitigating factors, counsel acknowledged that the defendant had entered an early guilty plea and accordingly should receive a discount of 25 per cent in respect of that.

Defendant’s submissions

[28] Counsel for the defendant acknowledged that the defendant was subject to the enforcement order requiring him not to use the shed as accommodation.

[29] In terms of the severity of the effects of the offending, counsel noted that the building is allowed and submitted that the effect of its use on amenity values should be by comparison to its use as a smoko room or implement storage shed. In relation to the commercial gain, counsel notes that the use was only for a month and so the income would only be $1,600. Counsel noted that the cases relied on by the prosecutor involved larger structures generating more income.

[30] On those grounds, counsel submitted that the impact here was at the lower end of the scale and so there should be a lower starting point.

[31] Counsel also submitted that there was an issue of the means of the defendant. He submitted that as the defendant operates his own business, that work requires his full engagement. Overall, counsel said that the defendant has an income of $85,000.

6 [2018] NZDC 13868 at [48].

He noted that there is some equity in the property once various loans are taken into account. Counsel accepted that, in terms of the relevant sentencing purposes and principles, the penalty would be higher than imposed at a first offence. Counsel submitted that a fine in the region of $12-15,000, to reflect the defendant’s financial circumstances, would be appropriate.

Legal framework

[32] There is no dispute as to the approach which the Court should take on sentencing under the Resource Management Act. In sentencing an offender, the Court must follow the two-stage approach as set out in Moses v R,7 first identifying the starting point incorporating any aggravating and mitigating features of the offence, and then assessing and applying all aggravating and mitigating factors personal to the offender together with any discount for a guilty plea (calculated as a percentage of the starting point). The two stages involve separating the circumstances of the offence from those of the offender.

[33] All of the purposes and principles in ss 7 and 8 of the Sentencing Act 2002 must be borne in mind, as well as the purpose of the RMA to promote the sustainable management of natural and physical resources. Of particular relevance under the Sentencing Act 2002 are the purposes of accountability, promoting a sense of responsibility, denunciation and deterrence, and the principles relating to the gravity of the offending and the degree of culpability of the offender, the seriousness of the type of offence, the general desirability of consistency with appropriate sentencing levels and the effect of the offending in the community.

[34] As to the overall sentencing approach for offending against the RMA, Machinery Movers Ltd v Auckland Regional Council8 and Thurston v Manawatu- Wanganui Regional Council9 are the leading decisions of the High Court which provide a comprehensive summary of the applicable principles. Briefly, the RMA seeks not only to punish offenders but also to achieve economic and educational goals by imposing penalties which deter potential offenders and encourage environmental

7 Moses v R [2020] NZCA 296 at [45] – [47].

8 Machinery Movers Ltd v Auckland Regional Council [1994] 1 NZLR 492 at 503 (HC).

9. Thurston v Manawatu-Wanganui Regional Council HC Palmerston North CRI-2009-454-24, 27 August 2010 at [39] – [66] and [100].

responsibility through making offending more costly than compliance. Relevant considerations include the nature of the environment affected, the extent of the damage, the deliberateness of the offence, the attitude of the defendant, the nature, size and wealth of their operations, the extent of efforts to comply with their obligations, remorse, profits realised and any previous relevant offending or evidence of good character.

Evaluation

[35] The District Plan regulates activities in the rural zone. Failing to comply with the rules leads to inefficient use of resources, degradation of rural character and amenity, pressure on infrastructure, and reduces public confidence in the administration of the plan.

[36] I assess the defendant’s culpability as high, as he was aware the shed could not be used as a dwelling due to the previous prosecution and the enforcement order made in 2010. It is also of note that the defendant attempted to conceal the illegal use of the shed, initially telling Council officers that it was just a smoko room and then that his son occupied the shed for a period of six months when it was in fact occupied for longer. While the defendant may have thought that recently issued Council pamphlets allowing for additional housing on properties applied to him, he should have checked with the Council, and in any case the enforcement order was still in place. His interactions with the Council enforcement officer tend to indicate that he was aware that the tenanting of the building was not lawful.

[37] While I accept that the shed had only been used as a dwelling for a short period on this occasion, I agree that this is probably only due to the Council investigation identifying the illegal use of the shed. I also note that the defendant has also admitted the shed was used as a dwelling by his son for a period of around 12 months.

[38] The need for specific deterrence is significant in this case given Mr Addison’s previous conviction and the enforcement order that is in place, and that he has allowed the shed to be used as a dwelling for differing periods of time on at least two occasions since. There is also the need for general deterrence for property owners who are

tempted to use buildings as dwellings illegally, ignoring District Plan rules, and to discourage members of the community from ignoring Court orders.

[39] I adopt a starting point of $35,000 to reflect that the offending involved disregard of a Court order, and the need for specific and general deterrence.

[40] Counsel accepted that an uplift for the previous conviction would be appropriate and suggested 10 per cent. I agree.

[41] I accept the submission that there should be a discount of 25 per cent in recognition of an early guilty plea.

[42] Section 40(1) Sentencing Act 2002 requires the court to take into account the financial capacity of the offender. I have considered the submissions about the defendant’s financial position and have reviewed the financial information provided. The starting point that I have decided is appropriate is higher than that contended for by counsel for the defendant but less than submitted by the prosecutor. Having identified that starting point I am not satisfied that there has been a basis presented for a reduction in the fine on hardship grounds. It appears the defendant has a reasonable income and has assets. The imposition of a fine will probably mean that the defendant will have to review his financial position, but that review is a matter of making choices and is not to be treated as hardship. I will however allow the defendant to discuss with the Registrar whether the fine can be paid over a longer period of time and/or in instalments.

Sentence

[43] I convict John Murray Addison on the charge in CRN-23070500491 and sentence him to pay a fine of $28,875.

[44] As required under s 342 of the RMA, I direct that the fine, less a deduction of 10 per cent to be paid into a Crown bank account, be paid to the Western Bay of Plenty District Council.

[45] I order the defendant to pay Court costs of $130 and solicitor’s fee of $113.

[46] Under s 81(1)(b) of the Summary Proceedings Act 1957, I direct that the Registrar of the District Court at Tauranga is to determine whether to enter into an arrangement with Mr Addison allowing him greater time to pay the fine or to pay by instalments.

Judge D A Kirkpatrick

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 29/11/2023