[1] The appellants, Wenzhi Jia (“Mr Jia”) and Jianying Zhang, (“Ms Zhang”) faced charges brought by the Auckland Council (“the Council”) under the Resource Management Act 1991 (“the Act”).

[2] The prosecution alleged they unlawfully used a house in Mt Roskill as multi- residential units, and in Ms Zhang’s case also failed to comply with abatement notices requiring that use to stop. The Judge-alone trial took place before Judge D A Kirkpatrick. The defendants represented themselves.

[3] Both defendants were convicted¹and fined.²They now appeal their convictions and sentence.

Background facts

[4] The property in question is a two storey residential building at 355 Richardson Road, Mt Roskill (“the property”). It is approximately 905 m². It has a rear yard of approximately 300 m²and each floor has a foot print of approximately 280 m², making a total area across the two levels of 560 m².

[5] At all material times Ms Zhang was the registered proprietor of the property. She lived there with Mr Jia. The Council’s case is that Mr Jia and Ms Zhang were married although at the hearing before me that claim was challenged.

[6] The charges are reproduced below:

Mr Jia and Ms Zhang jointly

(a) on 6 November 2013 they contravened s 9(3) of the Act by using the land at the property in a manner that contravenes a District Rule, namely rr 7.7.2.1 and 7.8.1.8B of the Plan, by using the building at the property as multi-residential units; and

¹Auckland Council v Zhang [2017] NZDC 4596 [Conviction Decision].

²Auckland Council v Zhang [2017] NZDC 8208 [Sentencing Decision].

Ms Zhang only

(b) on 6 November 2013 she contravened an abatement notice issued pursuant to s 322(1)(a)(i) of the Act and an abatement notice issued pursuant to s 322(1)(b)(ii) of the same Act, both issued by Auckland Council on 20 February 2013, the particulars of which are that by not ceasing to use the building at the property as multi-residential units and not undertaking the actions required by the abatement notices in order to ensure compliance with the Plan.

[7] Rule 7.7.2.1 concerns the number of residential units which may be permitted in different residential zones. The property is zoned Residential 6a in the Operative Auckland Council District Plan (Auckland City Isthmus Section 1999) (“the Plan”). The Plan permits a density of one residential unit per 375 m²of gross site area.

[8] Rule 7.8.1.8B sets out rules relating to outdoor living areas for various zones including 6a. While non-compliance with this rule is referred to as a particular of the charge, it did not form a central part of the case before Judge Kirkpatrick,³nor before me. The focus was on use of land in contravention of r 7.7.2.1. Judge Kirkpatrick recorded no challenge was made by the defendants to this aspect of the charge.⁴

[9] The significance of 6 November 2013 is that on the afternoon of that day, the Council’s investigating officer, Mr Fryer, led a team of Council staff to the property to execute a search warrant which had been obtained two days earlier.

[10] However, this was not the first occasion on which the Council had visited the property. Mr Fryer first became aware of compliance issues at the property on 27 March 2012, when Ms Zhang attended Council offices to speak about an abatement notice which had been issued to her. She alleged on 7 February 2012 a Council inspector had forced her way into her home. Mr Fryer investigated her complaint, concluding the inspector may have exceeded her powers and that the investigation be recommenced “from scratch”.

³Conviction Decision, above n 1, at [5].

⁴At [24].

[11] Mr Fryer took over the management of the case in July 2012. He identified nine complaints covering various issues involving the site between October 2010 and February 2012. These included complaints concerning overcrowding, noise complaints in respect of construction activity at the site, removal of a retaining wall, and installation of new flats in the lower level of the building. In response to the most recent complaint, made on 30 November 2011, an inspector undertook a partial inspection in December 2011.

[12] Mr Fryer wrote to Ms Zhang on 20 July 2012 formally cancelling the previous abatement notice. But he also advised her that the Council remained concerned over various unresolved contraventions of the Act. There then followed several email exchanges with Ms Zhang during August 2012, seeking to negotiate access for a proper inspection of the property, and to explain the various complaints. These efforts culminated in a letter from Mr Fryer on 4 September 2012 advising that a search warrant might be sought if an inspection could not be arranged by consent. There were also meetings on 14 and 17 September 2012 when Mr Fryer attempted to negotiate an inspection by consent.

[13] Eventually, on 3 October 2012, with the consent of the appellants, Council officers inspected the property. They discovered it had been divided into four distinct groups of rooms.

[14] The upper level of the house comprised a single residential unit. However, the lower level was made up of three separate groups of rooms. One was used for a home occupation business in the form of an acupuncture clinic operated by Ms Zhang. This suite of rooms comprised an entrance and reception room, a waiting room, three treatment rooms, a bathroom and a kitchen. In the kitchen was a bench, sink and fridge. There were no food or cooking facilities.

[15] The other two suites on the lower level were designed as independent and separate residential units. Each had its own lounge, kitchen and bathroom. One unit contained two bedrooms; the other one. The suites were separated by an internal door which was locked and obstructed by furniture.
[16] The presence of three residential units on the property did not comply with the development controls in the Plan. As a result, on 20 February 2013, the Council issued two abatement notices to Ms Zhang. One required the use of the building as multi- residential units to cease. The other required various actions to be taken to ensure compliance with the development controls in the Plan, which included removing excessive paving from the front yard, and removing all kitchen features and facilities and all locks or obstructions preventing internal access through doorways in the lower level of the house.

[17] The abatement notices required Ms Zhang to comply with the Council’s requisitions by 20 May 2013. This was extended to 20 June 2013, after complaints by Ms Zhang, and agreement following a meeting that Ms Zhang would first seek authorisation through resource consent for the contraventions. Contact was made with Mr Fryer by a planning consultant the Council had put Ms Zhang in touch with on 25 June 2013, requesting information about the abatement notices. On 22 July 2013, a little over a month after the extended deadline, Mr Fryer wrote to Ms Zhang’s planning consultant advising unless an application for resource consent was lodged by 31 July 2013, further enforcement action would ensue. On 20 August 2013, the consultant advised he was no longer engaged by Ms Zhang. He said he had put her in touch with another consultant. However, when Mr Fryer contacted that consultant he was told Ms Zhang had not been in touch. No application for any resource consent was received by the Council.

[18] It was against that background that Mr Fryer obtained and executed the search warrant on 6 November 2013. This search revealed that the abatement notices had not been complied with. In fact, while the top storey residential unit appeared to have the same layout as had been observed on the 3 October 2012 visit, substantial new modifications had been made to the lower level configuration. There were now four separate and distinct suites of rooms on the lower level. The acupuncture clinic had been split into two separate suites, with one converted into an extra residential unit. The acupuncture clinic now comprised an entrance and reception room, a waiting room, two treatment rooms and a kitchen.
[19] The other three suites were configured for use as residential units with each having its own lounge, kitchen and bathroom facilities. The units were separated by locked doors or by sheets of plywood fixed to door frames.

[20] In a bedside drawer in the main bedroom of the top unit tenancy, related documents were found covering a period from May 2007 to August 2013. The documents contained references to separate units at the property sometimes described as “A”, “B” or “C” and sometimes as “1”, “2” or “3”. Where there was a reference to the landlord, the name used was “Jia”. At the trial Mr Jia confirmed he had seen these documents and that it was his signature which appeared on them.

[21] The extra residential unit would appear to have been created at some time before 20 December 2012. This is because the tenancy agreements contained no reference to unit 355C before that date.

[22] Thus, in summary, the charge jointly faced by Mr Jia and Ms Zhang focused on the contravention of the Plan by using the house at 355 Richardson Road as multi- residential units. The charge against Ms Zhang solely related to her refusal to comply with the requisitions contained in the abatement notices issued by the Council on 20 February 2013.

Procedural history

[23] Given the foregoing chronology it is unsurprising this matter has a long and complex procedural history.

[24] In the District Court, prior to the defended hearing before Judge Kirkpatrick, the defendants challenged the validity of the warrant. Judge Harland determined that the warrant was valid and the search properly executed.⁵In this Court, Davison J dismissed the appeal.⁶Although he found that the deployment of 12 Council staff was unreasonable, he determined that in terms of s 30 of the Evidence Act 2006 the exclusion of the evidence would not be a proportionate response to the breach. Mr Jia

⁵Auckland Council v Zhang [2015] NZDC 20392.

⁶Zhang v Auckland Council [2016] NZHC 962.

and Ms Zhang then sought leave to appeal to the Court of Appeal. That Court refused leave for a second appeal.⁷

[25] The hearing before Judge Kirkpatrick occupied five consecutive sitting days commencing 27 February 2017. He delivered his judgment convicting both defendants on 17 March 2017. Sentencing took place on 2 May 2017.

[26] Mr Jia and Ms Zhang’s appeal was first called in this Court on 9 June 2017, when both appellants appeared in person with the assistance of a Mandarin interpreter. As Lang J noted at the time, there were several difficulties with the notice of appeal as it was then framed.

[27] First, it purported to be an application for leave to appeal when the appeal was, in fact, a general appeal. Secondly, and as the Judge observed more importantly, several of the grounds of appeal simply did not make sense. For example, grounds 6(a)(vii), (ix) and (xi) challenged findings in the lower Court. Ground 6(a)(vii) claimed the District Court erred in holding that the property in question fell within the definition of the “Fourth Unit”. Ground 6(a)(ix) alleged that the District Court erred in its findings in respect of the relationship between Ms Zhang and Mr Jia. Another bewildering ground, 6(a)(xi), alleged the District Court erred “by holding that fine for [Mr Jia] and [Ms Zhang]”. Lang J also expressed some surprise in respect of ground 6(a)(viii) which alleged that the District Court erred in finding that Ms Zhang was the proprietor of the property.

[28] There were various other grounds of appeal which were similarly problematic. These included allegations the District Court erred in finding the search warrant was valid. Similarly curious was ground 6(a)(xii) which claimed the District Court erred by not punishing Council officers.

[29] Lang J, in his Minute of 9 June 2017, directed the appellants to recast their grounds of appeal and file and serve a new document, “Points on Appeal”, no later than Wednesday, 21 June 2017. He directed that the matter be listed again on 23 June 2017.

⁷Zhang v Auckland Council [2016] NZCA 332.

[30] On 21 June 2017 Toogood J extended the time for filing the points on appeal. This extension was made at the appellants’ request, apparently due to difficulties in expressing themselves in English in a way which would permit the Judge on appeal to understand their grounds.

[31] The appellants filed their amended points on appeal on 4 July 2017.

[32] In a Minute of 7 July 2017, Lang J acknowledged the amended points on appeal had been filed but observed that they were unlikely to address the concerns expressed by the respondent. He nevertheless determined there was little point in endeavouring to refine them further given the appellants were self-represented and were not, apparently, in a financial position to instruct counsel. He therefore set the appeal down to be heard on 4 September 2017 and allocated one day. In doing so Lang J observed it would be necessary for the appellants to make oral submissions on the points on appeal, an exercise he acknowledged was likely to present a challenge for the presiding Judge, who would need to endeavour to refine the points as best he or she could. He directed an interpreter be available to ensure the appellants’ submissions were properly conveyed to the Court.

[33] In concluding his comments, Lang J observed:

“[5] I make no further direction that the appellants are to file any further submissions. In the event that they wish to file further evidence, they should do so no later than 21 August 2017. I have explained to the appellants that they will need to file any evidence in the form of an affidavit or affirmation. It will be for the presiding Judge to determine whether to accept the evidence and, if so, the weight to be given to it.”

[34] Unfortunately, for administrative reasons, the hearing on 4 September 2017 was required to be adjourned. Lang J directed the one day appeal be heard on 11 December 2017.

[35] By the time the matter came before me the appellants had filed further evidence in the form of a large Eastlight folder containing several hundred pages of documents. Although the file was tabulated its organisation was difficult to follow. Contrary to Lang J’s order, none of the material was presented in affidavit form.
[36] At the hearing before me the appellants were assisted by a Mandarin interpreter who interpreted all of the oral submissions made by Mr Jia and Ms Zhang.

[37] Mr Jia addressed me from 10:00 am until shortly before 1:00 pm at which point I interrupted him to inquire how much longer he expected his submissions would take. He indicated he would require a further three hours. I pointed out that the hearing had been set down for one day and that Mr Watts, for the respondent, was also entitled to be heard. Through the interpreter, Mr Jia advised he had understood that the one day allocated was for his submissions only, and that the respondent would be heard the following day. I pointed out to Mr Jia that due to my commitments I was not available the following day. I advised Mr Jia the Court would resume at 2:15 pm and that he would need to spend the luncheon adjournment reformulating his argument so that the balance of his submissions could be dealt with in the one hour and 15 minutes available before 3:30 pm.

[38] From 2:15 pm to 3:30 pm Mr Jia continued to address me. Mr Jia still had not completed his oral submissions by the afternoon adjournment. More particularly, he had not addressed me on the question of penalty.

[39] In the course of his submissions Mr Jia produced further documents, mostly in the form of selected photographs taken from the search of the address by the Council. Other documents produced included copies of tenancy agreements, correspondence with Work and Income and the Ministry of Business, Innovation and Employment. These were produced in contravention of Lang J’s orders in that, again, they were not in sworn or affirmed form.

[40] Following the afternoon adjournment I invited Mr Watts to address me. His oral submissions were abbreviated and confined to the points Mr Jia had advanced orally. Despite the brevity of his submissions, they occupied some time because it was necessary for a consecutive interpretation to take place.

[41] At the end of Mr Watts’ submissions I explained to both appellants that the Court had run out of time and I was concerned that I had not received any oral submissions on the appeals against sentence. I asked Mr Jia if he had any submissions.
His response, consistent with the points filed and his extensive written submissions, was that because he was not guilty he should not have been fined.

[42] Although the notices of appeal, points on appeal and written submissions were all expressed as filed on behalf of both appellants, Mr Jia was the only appellant who addressed me orally. For that reason I asked Ms Zhang if Mr Jia’s submissions covered all the matters she wished to raise on her appeal. Ms Zhang responded by saying that although she agreed with Mr Jia’s submissions there were some matters that she wished to advance herself.

[43] By this time it was shortly before 5:00 pm. I told both appellants that while there was no more hearing time available, I was prepared to receive written submissions on any further matters either appellant wished to place before me.

[44] The timetabling orders I made for that purpose were generous. I directed that the appellants were to file and serve any further or additional submissions by 2 February 2018. These orders and my reasons for making them were contained in a Minute which I directed was to be conveyed to the appellants.⁸

[45] Since making those directions no submissions nor any documentation of any form has been received from either Mr Jia or Ms Zhang, despite the fact that more than four months has elapsed since I issued my Minute.

[46] In the circumstances I have determined the only appropriate and available course is to deal with the appeals on the material available to me for the following reasons:

(a) The voluminous documentary material filed in support of the appeal runs to several hundred pages. The intituling describes the documents as being filed for the appellants, i.e. both Mr Jia and Ms Zhang.

(b) Secondly, the points on appeal were filed in a single document by both appellants.

⁸Zhang v Auckland Council HC Auckland CRI-2017-404-000184, 13 December 2017.

(c) Thirdly, the extensive memorandum of submissions filed for the appeal runs to 68 pages and containing 147 paragraphs. It is described as the “Memorandum of submission for the appellants”.

(d) Fourthly, in his oral submissions to me, Mr Jia’s submissions covered the position of both appellants.

[47] For that reason, although Ms Zhang indicated there were further matters she wished to raise in argument, I am satisfied the position of both appellants on this appeal has been more than adequately traversed both in writing and orally, and there is nothing further, of a substantive nature, which could be raised by either appellant. For these reasons I propose to deal with the appeal on the material now before me.

[48] I propose to address the conviction appeal first, before considering the appeal against sentence. Before engaging in those exercises there is, however, the matter of the further evidence the appellants sought to adduce on the appeal before me.

Fresh evidence

[49] Section 335 of the Criminal Procedure Act 2011 (“the CPA”) permits the Court to receive new evidence on appeal if it thinks such a course is necessary or expedient in the interests of justice. New evidence is not admitted as of right and requires the Court’s leave.⁹

[50] The leading decision on the admission of fresh evidence on appeal remains

R v Bain, which was summarised by this Court in Everiss v Police as follows:¹⁰

“[9] The test for admission of new evidence has been expressed by the Court of Appeal in R v Bain in the following terms:

‘An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is:

(a) sufficiently fresh; and

(b) sufficiently credible.

⁹R v Bain [2003] NZCA 294; [2004] 1 NZLR 638 (CA) at [23].

Everiss v Police [2012] NZHC 1926 at [9] and [10] (footnotes omitted). See generally R v Bain, above n 9, at [21]-[27].

Ordinarily if the evidence could, with reasonable diligence, have been called at trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice.’

[10] The decision in Bain emphasises that the relative significance of evidence and the greater the risk of miscarriage of justice if it is not admitted can influence the Court’s overall assessment. Credibility may be assessed both inherently and in a contextual way. The evidence must be sufficiently fresh and sufficiently credible before jurisdiction to admit the evidence exists. Once those elements are made out, then the Court still has to evaluate whether there is a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the fact-finder at trial.”

[51] As the procedural background described above reveals, Lang J expressly stated in his Minute of 7 July 2017 that if the defendants wished to file further evidence they were required to do so no later than 21 August 2017 and that the evidence would need to be in the form of an affidavit, sworn or affirmed. He expressly reserved, for the presiding Judge, the decision whether or not to accept the evidence and, if so, what weight should be given to it.

[52] The appellants filed the voluminous material described. The provenance of many of the documents was unclear and contrary to Lang J’s direction it was not produced through the medium of an affidavit.

[53] An examination of the material contained in the folder reveals that a good deal of it duplicates, at least in part, documents which were produced at the trial. However, some of the included material appears to be new in the sense it was not produced at trial. These include:

(a) deeds relating to the trusteeship of and beneficial interests in the property;

(b) divorce documents;

(c) various documents relating to building consents for the property;

(d) water and wastewater charges for the property; and

(e) documents relating to Ms Zhang’s acupuncture practice.
[54] I do not propose to admit this evidence on appeal for the following reasons:

(a) The documents are produced in a form which is contrary to Lang J’s expressed direction.

(b) The new evidence is not sufficiently fresh in the sense that it could, with reasonable diligence, have been adduced at trial. The issues which the appellants submit the documents are relevant to were squarely before the Court at the time of the trial and, in most cases, were extensively discussed.

(c) Vitally, for reasons which are more fully discussed later in this judgment I do not consider any of the new evidence bears on the primary issues engaged on this appeal. In that sense there is no risk of a miscarriage of justice if the evidence is not admitted.

Conviction appeal

Legal principles

[55] Section 229 of the CPA provides the appellants with a general right of appeal against conviction. Section 232(2) requires the appeal Court to allow the appeal if it is satisfied that:

(a) in the case of a Judge-alone trial the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(b) in any case, a miscarriage of justice has occurred for any other reason.

[56] Section 232(4) defines miscarriage of justice as meaning any error, irregularity or occurrence in or in relation to or affecting the trial that:

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.
[57] A broad approach is required to determine whether a matter is “an error, irregularity, or recurrence ... affecting the trial”.¹¹A real risk arises when there is a reasonable possibility that a not guilty or a more favourable verdict might have been delivered if nothing had gone wrong.¹²Irregularities which do not either individually or collectively affect the result of the trial are not properly characterised as miscarriages of justice and the appeal Court must disregard them.¹³

[58] It is well settled that the appeal Court, while paying appropriate deference to the findings made by the Judge who had the advantage of hearing and seeing the witnesses on questions of credibility, must nevertheless review with care the evidential basis for factual findings.¹⁴

The conviction decision

[59] After traversing the evidence, Judge Kirkpatrick set out the legal elements of both charges before turning to consider the defences advanced by Mr Jia and Ms Zhang.

[60] He noted that Mr Jia had attempted to challenge Mr Fryer on the validity of the search warrant, the reasonableness of the search and the admissibility of the evidence obtained. Although the Judge, repeatedly it seems, directed Mr Jia not to pursue that line of questioning, at the conclusion of the defendants’ case Ms Zhang handed up several bundles of documents which all appeared to relate to a collateral challenge to the proceedings before Judge Harland, Davison J and the Court of Appeal.

[61] It would appear that much of Mr Jia’s challenges related to the exercise of parallel regulatory functions undertaken by the Council including building control, valuation and rating and an apparent authority for an acupuncture clinic to operate at the address. It was Mr Jia’s case that the Council’s building inspectors had found no issues when they inspected the property and that various internal alterations to the

¹¹Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [26].

R v Sungsuwan [2005] NZSC 57, [2006] NZLR 730 at [110] per Tipping J; Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30]- [31].
Matenga v R, above n 12, at [30]. In Wiley v R, above n 11, at [30] the Court of Appeal confirmed these principles apply to s 232(4)(a) of the CPA.
Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5] and [13].

house were therefore undertaken lawfully and with the approval of the Council. As he did on the appeal, Mr Jia placed particular emphasis on the Council’s valuation and rating records, in which at 1 July 2005, and again on 10 November 2014, the property was described as a “house and two granny flats”. This, he submitted, clearly conveyed that the Council was aware of the house’s configuration and had approved it. Judge Kirkpatrick accepted the Council’s submission that regulatory approvals under other legislation, and the valuation and rating of the house, do not remove the requirements for compliance with the relevant rules of the Plan, and did not otherwise provide a defence to the charges.

[62] Another issue advanced by Mr Jia was his claim that the house did not meet the definition of a “resource” for the purposes of ss 9 and 338 of the Act. That proposition was based on the notion that a resource is necessarily a natural rather than human-made thing. The Judge rejected that submission, observing it was not supported by the Act and although there is no definition of “resource”, the Act does define “natural and physical resources” as including “land, water, air, soil, minerals, and energy, all forms of plant and animals ... and all structures”.¹⁵A structure is separately defined in s 2 to mean “any building, equipment, device, or other facility made by people and which is fixed to the land ...”.

[63] Another submission advanced by the appellants appeared to engage the principle of existing use rights. The Judge rejected a submission regarding the property’s treatment under the building, valuation and rating legislation on the basis “lawfully” at s 10 means “lawfully in terms of the Resource Management Act 1991”.¹⁶

[64] The appellants, as they did on the appeal, also complained about what they regarded as the heavy-handed enforcement methods adopted by the Council. Questions were put to Council witnesses as to how the Council was organised and administered. The Judge was of the view that this line of challenge may have arisen as a consequence of difficulties in interpretation. But he also considered it amounted to an attempt to relitigate the earlier challenges to the search warrant. This confusion

¹⁵Resource Management Act 1991, s 2.

Conviction Decision, above n 1, at [42], citing Schmuck v Far North District Council & Ors [2014] NZEnvC 101; One Tree Borough Council v Lowe SC Wellington M270/84, 25 March 1986.

was apparently compounded by Mr Jia’s misinterpretation of Davison J’s judgment. Mr Jia submitted that because the High Court had not specified what evidence was admissible, none of the evidence should be admitted.¹⁷

[65] Mr Jia also suggested that the photographs produced by Mr Fryer, having been taken four years earlier, may have been photoshopped or otherwise maliciously altered. In the absence of any supporting evidence the Judge properly dismissed this claim.

[66] Another area of challenge which underscored Mr Jia’s misunderstanding of the applicable law related to the requirement under the Search and Surveillance Act 2012 for the release of seized items if proceedings have not been commenced within six months of the items’ seizure. Given that the proceedings were commenced within the six month period, the provision was not engaged.

[67] The Judge directed himself that contravention of the “residential unit” rule does not turn on the actual use, but rather the way in which the buildings or rooms have been designed and configured, which is an objective assessment. Having considered all of the evidence and having rejected each of the defences advanced by the appellants, the Judge concluded on the joint charge that the appellants were acting in contravention of the residential density r 7.7.2.1, there being no evidence of an existing use in terms of s 10 of the Act, and the establishment of a fourth unit in late 2012 defeating any recourse to existing use rights. Ms Zhang was liable as registered proprietor, and Mr Jia as landlord in the tenancy agreements; both had used the land in an impermissible manner or allowed it to be used in that way.

[68] As for Ms Zhang’s second charge, no challenge was mounted beyond the general defences the Judge dismissed. He convicted each defendant as charged.

Grounds of appeal

[69] Despite attempts to clarify the grounds of appeal, the final document, signed by both appellants, remains difficult (and in some places impossible) to follow.

To no avail, Judge Kirkpatrick tried to explain to Mr Jia that in fact Davison J’s decision concerned whether the evidence should be excluded, rather than whether particular items should be admitted.

Additionally, the appellants’ 68-page memorandum of submissions do not follow the points on appeal in a structured or comprehensible way, and appears to raise certain new grounds, while others are all but incomprehensible.

[70] From a combination of the points on appeal, initial grounds of appeal, and the appellants’ memorandum of submissions, Mr Watts has attempted to collate the appellants’ various challenges into three broad grounds: errors of law, erroneous factual findings, and the search warrant.¹⁸That categorisation provided significant clarity to the points on appeal.

[71] With the benefit of hearing, the alleged errors advanced by Mr Jia were further refined, and pivoted around five central topics:

(a) whether the property was actually being used in a manner contravening the Plan at the relevant time, and whether that affects liability;

(b) whether the use the appellants put the land to was permitted as an existing use under s 10 of the Act;

(c) whether Ms Zhang and Mr Jia could properly be liable, as registered proprietor and landlord at the relevant time;

(d) other issues with the search warrant and procedure adopted by the Judge; and

(e) the abatement notice.

[72] I pause to comment on one aspect of the Judge’s approach. While he expressly set out the elements of the offences which needed to be proved by the Council beyond reasonable doubt, in determining whether the Council had discharged that onus the judgment could have been clearer in outlining whether each element was proved to the requisite standard. For transparency, doing so is preferable. Nevertheless, it is

¹⁸The sentence appeal, which I consider below, was only dealt with in brief by the appellants.

apparent the Judge was satisfied each of the essential elements was proved to the required standard.¹⁹

[73] Contravention of s 9 is a strict liability offence; that means the prosecution does not need to prove the defendant intended to commit the offence.²⁰Rather, in respect of the charge of contravening s 9 the prosecution must prove beyond reasonable doubt that:²¹

(a) the defendant(s) used the land. That use contravened a rule in the District Plan;

(b) contravention of the r 7.7.2.1 of the Plan in this case requires more than one residential unit per 375 m²of gross site area, or as Judge Kirkpatrick put it a number of residential units exceeding the quotient of the area of the property;

(c) the use must not be expressly allowed by a resource consent;

(d) the use must not be allowed by existing use rights under s 10; and

(e) the contravention must be by or permitted by the defendant(s).

[74] In respect of failure to comply with an abatement notice, the elements are:²²

(a) the existence of an abatement notice;

(b) service of that notice; and

(c) failure to comply within the specified time.

¹⁹Conviction Decision, above n 1, at [25]-[33].

²⁰Resource Management Act 1991, s 341(1).

Smith v Auckland City Council [1996] 1 NZLR 634 (HC) at 637 per Fisher J, and Conviction Decision, above n 1, at [10]-[11].

²²Waikato Regional Council v Huntly Quarries Ltd [2004] NZRMA 32 (DC) at [16].

[75] With those requirements in mind, I now turn to address each of these central topics, which broadly reflect the alleged errors gleaned by Mr Watts.

The use the property was being put to

[76] Two discrete alleged errors, helpfully distilled by Mr Watts, arise under this heading:

(a) the District Court erred by failing to require evidence that the unlawful residential units at the property were tenanted on the date of the offence; and

(b) the District Court erred in its assessment of the existence of a third residential unit within the lower level of the house.

[77] The first issue assumed prominence at the hearing and was developed in the appellants’ memorandum. The essence of the submission is that the Council failed to prove that what it believed were residential units were tenanted at or about the time the warrant was executed on 6 November 2013.

[78] The difficulty with that submission lies in the nature of the charge; use of land in a way which contravenes a district rule, and the way that concept has been interpreted in case law. Rule 7.7.2.1 (the residential density rule) stipulates that in residential 6a zone the density limitation is one residential unit per 375 m²gross site area. The certificate of title records the area of the property being 905 m². Thus the use of any more than two residential units on the property contravenes the residential density rule.

[79] “Residential unit” is defined in the Plan as follows:

“Residential unit means a building, a room or group of rooms used or designed to be used exclusively by one or more persons as a separate household unit.”

[80] The term “household unit” is also defined in the Plan:

“Household unit means a separate housekeeping unit, consisting of either:

(a) one person: and up to four people unassociated with the household; or

(b) two or more persons related by blood, marriage, adoption or legal guardianship: and up to four people unassociated with the household; or

(c) a group of not more than eight persons unrelated by blood, marriage, adoption or legal guardianship:

and includes any of the normal domestic household activities which may occur on the premises.”

[81] Judge Kirkpatrick discussed these provisions. He also referred to a number of authorities which have considered them, particularly the definition of “residential unit”.²³These authorities, starting with Landeman v Cavanagh, provide that the rule does not turn solely on the actual use of the building or rooms, but includes the way they have been designed to be used. It involves an objective assessment which the Court of Appeal in Landeman v Cavanagh described in the following way:²⁴

“Determining the design use of the building ... involves an objective assessment of the plan of the building, its nature, size, layout and its relationship to the other building or buildings on the property.”

[82] This Court in Jayashree Ltd v Auckland Council observed that the ease by which units may be made exclusive by shutting and locking doors was indicative of the design and exclusivity of use when viewed objectively.²⁵

[83] I agree with the Judge that these decisions are directly on point. The question of whether the groups or suites of rooms in the lower level each constitute a residential unit is not determined by proof of whether or not they were either in actual use or were tenanted. I thus agree with the Judge it was not necessary for the Council to prove that the groups of rooms were, in fact, tenanted by separate households on or about

²³Landeman v Cavanagh [1998] NZRMA 137 (CA); Holm v Auckland City Council [1998] NZEnvC 22; [1998] NZRMA 193 (EnvC); B & C Shaw Ltd v Auckland City Council EnvC Auckland C56/2003, 9 May 2003; and Jayashree Ltd v Auckland Council [2015] NZHC 2085.

²⁴Landeman v Cavanagh, above n 23, at 142.

²⁵Jayashree Ltd v Auckland Council, above n 23, at [43]-[45].

6 November 2013. What was required was proof that rooms designed for that purpose were in existence at the property at the relevant time.

[84] Judge Kirkpatrick was presented with detailed evidence, including photographs taken during the execution of the search warrant, which guided him towards his conclusion that the property was designed to be used as four residential units (as well as the acupuncture clinic). These revealed each unit contained a bathroom, kitchen, and at least one bedroom, and was separated from the other units by way of locked doors or in one case plywood fixed to a door frame. The tenancy agreements which Mr Jia accepted he had signed provided corroborative evidence of use and design.

[85] That there was evidence from which it might be inferred the spaces were or had been tenanted, including the letterboxes, simply adds to the body of evidence available to the Court in finding the necessary elements are met. But absent that evidence, there remained sufficient other evidence to prove this element. As such the Judge did not err in identifying the relevant legal principles.

[86] As for whether the Judge erred in his application of those principles, the appellants allege he erred in concluding the four rooms marked on Mr Fryer’s floor plan constituted a third residential unit on the lower level of the house. In order to explain the appellants’ complaint, it is necessary to review this aspect of Mr Fryer’s evidence. He prepared a floor plan of the lower level of the house which identified four rooms marked “B1”, “B2”, “B3” and “B4”. He described the rooms in the following ways:

(a) Room B1: This was a lounge/dining room containing a microwave oven, a table, chairs and a television set. Two doors providing access to other parts of the lower floor area had been modified to prevent access. One was locked with a bolt and chain; the other was boarded over using a sheet of plywood.
(b) Room B2: This was a bedroom accessible from Room B1 (the lounge/dining room). It contained a double bed and a desk. Some acupuncture needles and tissues were also observed.

(c) Room B3: This was a bathroom, also accessible from Room B1. It contained a bathroom vanity, shower and lavatory.

(d) Room B4: This was a kitchen accessible from Room B1, containing a sink and jug, a single bed and some acupuncture paraphernalia. This room provided the only external entrance to the “B” group of rooms. It had the letter “C” affixed above the door.

[87] Mr Fryer’s evidence was that the “B” group of rooms were originally part of the acupuncture clinic when the lower level was inspected during 3 October 2012. However, by 6 November 2013 the rooms had been reconfigured and appeared to create a separate and distinct residential unit.

[88] As noted, and while not consequential, this conclusion was corroborated by the contents of the tenancy agreements relating to “355C” seized from the upper level master bedroom. These documents included:

(a) a tenancy agreement between Mr Jia and Kahu Cassidy dated 20 December 2012 relating to 355C Richardson Road, which set the weekly rent and contained a chattel list;

(b) a letter from Work and Income to Mr Jia approving payment of Ms Cassidy’s bond;

(c) a tenancy agreement between Mr Jia and Vivekaraj Jairaj dated 29 January 2013 relating to 355C Richardson Road;

(d) a 24 January 2013 application form filed by Mr Jairaj and a Mr Ajai Vivekaraj for 355C Richardson Road;
(e) a print out of Mr Jairaj’s LinkedIn profile recording his occupation and work experience;

(f) a 24 February 2013 letter from the Ministry of Business, Innovation and Employment, Building and Housing to Mr Jia acknowledging receipt of Mr Jairaj’s bond and asking how many bedrooms the premises had; and

(g) two bond refund forms signed by Mr Jia and Mr Jairaj.

[89] The appellants admitted that the agreements with Mr Jairaj and Ms Cassidy related to the “B” group of rooms but maintained that the “C” on the door stood for “Clinic” and that Mr Jairaj and Ms Cassidy were a doctor and an assistant renting clinical, rather than residential, space.

[90] However, given all the circumstances it is unsurprising that Judge Kirkpatrick did not believe the appellants in that regard. He put it this way:²⁶

“The principal challenge to this evidence was made by questions put to Mr Fryer by Mr Jia to the effect that the unit adjacent to the clinic was used for work purposes by an opthamologist who worked in the clinic, suggesting the two units [B and D on Mr Fryer’s plan] were actually used as one. This challenge is undermined by the documents which include a tenancy application which records that the opthamologist sought to rent 355C Richardson Road “to live with my son” and there is no reference to any use of the unit for medical purposes.”

[91] The tenancy agreements seized during the search on 6 November 2013 support the conclusion that 355C Richardson Road was established between the 3 October 2012 inspection and the execution of the warrant on 6 November 2013. While the agreements relating to 355A and 355B Richardson Road date back to 2009 and 2010 respectively, the documents relating to 355C Richardson Road date back only to December 2012, indicating this residential unit was set up after the other two, sometime after December 2012 but before the search of 6 November 2013.

²⁶Conviction Decision, above n 1, at [23].

[92] When the layout of the “B” group of rooms is considered together, the plain inference is that this suite was designed for use as a discrete residential unit. That conclusion is fortified by the measures taken to separate the “B” group of rooms from the other units on the ground floor. That it appears to have been, in fact, used for that purpose is supported by the documentary evidence discussed above, but is not consequential in terms of the applicable legal test, which merely turns on the designed use.

[93] The Judge therefore did not err in concluding the defendants were using the land in contravention of rule 7.7.2.1.

Was the use an existing use?

[94] Several of the errors alleged by the appellants related to the issue of whether the impugned use or design of the property was captured by s 10 of the Act. They claim the Judge erred by failing to:

(a) require evidence that the appellants undertook modifications to the property to create the unlawful residential units;

(b) recognise the significance of building consents and rates levied for the property; and

(c) recognise the property had existing use rights for up to eight residential units.

[95] The first claim is repeated throughout much of the appellants’ documentation filed in this appeal. It, too, is misconceived. The offence is not one of creating unlawful residential units. Section 9(3) of the Act places the prohibition on any person using land in a manner which contravenes a district rule unless that use is authorised either by resource consent, an existing use right under s 10 or is an activity permitted by s 10A of the Act. It is the contravening of s 9 of the Act which creates an offence under s 338(1)(a).
[96] The offence is founded on the continued existence of the residential units as observed on 6 November 2013. Proof of that offence is unaffected by when the modifications were undertaken or by whom.

[97] In principle, existing use provides a defence to contravention of a rule under s 9. Section 10 of the Act relevantly provides:

“10 Certain existing uses in relation to land protected

(1) Land may be used in a manner that contravenes a rule in a district plan or proposed district plan if—

(a) either—

(i) the use was lawfully established before the rule became operative or the proposed plan was notified; and

(ii) the effects of the use are the same or similar in character, intensity, and scale to those which existed before the rule became operative or the proposed plan was notified:

...

(3) This section does not apply if reconstruction or alteration of, or extension to, any building to which this section applies increases the degree to which the building fails to comply with any rule in a district plan or proposed district plan.”

[98] But existing use cannot be proved by reference to other regulatory schemes. The appellants submit that because they have paid rates and water charges for three dwellings at the property, it follows that the dwellings were authorised by the Council and are a permissible existing use.

[99] I agree with Mr Watts these arguments are misconceived for the following reasons:

(a) the use of land, including the number of residential units permitted on land, is regulated under the Act and the plans created under it;

(b) the way in which buildings are constructed is regulated under the Building Act 2004; and
(c) rates are levied under the Local Government (Rating) Act 2002.

[100] The obligations created under each of these statutory instruments is different. Compliance with one of the Acts does not excuse non-compliance with another. Logically, it cannot be claimed that the payment of rates under the Local Government (Rating) Act 2002 equates to approval under the Act. Compliant residential units are not exempted from the payment of rates and, conversely, the payment of rates cannot legitimise what would be otherwise non-compliant activities under the Act. Moreover, regulatory agencies responsible for payment of rates or building regulation are not responsible for enforcing district plans. Their treatment of the number of residential units on a property is not determinative of whether that land use is in breach of another regulatory scheme outside their purview.

[101] As for s 10 generally, the defence was described by the Judge in the following way:²⁷

“The issue of whether there are any existing use rights was raised inferentially rather than directly. Existing use rights arise through operation of law and do not require any application to be made to the territorial authority for consent.

...

No evidence was presented specifically to show there were any existing use rights in relation to the property. The residential density rule 7.7.2.1 became operative as part of the Isthmus Section of the (then) Auckland City District Plan sometime in 1999. The defendants produced what appeared to be the original building consent plans when the house was built in the 1950s. Those plans do not show any separate residential units on the ground floor. The tenancy agreements seized by the prosecutor and presented in evidence date back only as far as November 2009.”

[102] I agree with Mr Watts that three key points arise in respect of the existing use rights under s 10:

(a) First, the use must have been lawfully established in the first place. As Judge Kirkpatrick observed, this means lawful in terms of the Act.

(b) Secondly, the effect of uses that were once lawful can never change in character or increase in intensity or scale once a rule is introduced

²⁷At [26]-[27].

which requires a resource consent to be obtained for that activity. Each time a new rule is introduced the character, intensity and scale of the efforts of the activity are limited again by reference to their nature at that time.

(c) Thirdly, there is a distinct rule in s 10(3) for reconstruction, alteration and extension to buildings. If such works increase the degree to which the building fails to comply with the rule, then any existing use rights are extinguished, and recourse to s 10 is unavailable for contravention of a District Plan rule.

[103] Mr Jia and Ms Zhang claim the original building plans for the property reveal it could have been used as eight residential units at that time and, as such, the property now enjoys existing rights for eight residential units.

[104] There are a number of difficulties with that proposition. The first is that somewhat creatively, the appellants appear to have arrived at the figure of eight residential units by reference to the number of external doors and the groups of rooms which might potentially be locked off from one another and accessed independently. There was no evidence of any such definition in past district plans or under any existing legislation.

[105] That leads to the second point. It is the planning schemes applicable in the 1950s and 1960s which count; not building plans. There is no evidence that any past plans or schemes permitted eight residential units at the property as of right.

[106] Finally, there is no evidence that the property was used for more than one residential unit prior to 2006. Thus, there is no evidence that as at 6 November 2013 any of the residential units was permitted under s 10. The limit for the property was two residential units, pursuant to r 7.7.2.1.

[107] Furthermore, I agree with Mr Watts that the correct approach in proving existing use rights is for the defendant to establish an evidential threshold raising the defence. Only after that has occurred is there an onus on the prosecution to disprove
the defence. There are strong policy reasons why that should be the case, particularly because existing use rights can be difficult to disprove, and the party asserting them is almost always best placed to provide evidence of their existence. I am not satisfied the material provided by the appellants goes anywhere near establishing the required evidential onus.

[108] I also agree with Mr Watts that although Judge Kirkpatrick dismissed the possibility of existing use rights under s 10(3) because the addition of a fourth residential unit increased the degree to which the property contravened the Plan, he could have reached the same conclusion through s 10(1)(a)(ii), by finding that the character, scale and intensity of the contravening activity’s effects were no longer the same or similar.

[109] For the foregoing reasons I find Judge Kirkpatrick did not err in his assessment of existing uses of the property, and the non-availability of an existing use right defence.

The liability of Ms Zhang and Mr Jia

[110] This topic relates to a number of claims made by Ms Zhang and Mr Jia that the District Court erred by finding Ms Zhang and Mr Jia could be liable under ss 9 and 338 of the Act, specifically by:

(a) finding Ms Zhang was the registered proprietor, and misunderstanding her responsibility for the use of the property;

(b) not recognising that Mr Jia was the head tenant at the property, and therefore misunderstanding his responsibility for the use of the property; and

(c) finding that the appellants were married, when in fact they divorced in 2007.

[111] Whether Ms Zhang was the registered proprietor assumed some significance in Mr Jia’s oral submissions on the appeal. He presented fresh evidence in the form
of copies of deeds which purport to show that Ms Zhang’s beneficial interest in the property was transferred to Ms Jianping Zhang, leaving her as the trustee and registered proprietor only.

[112] Plainly, as outlined above, this evidence does not meet the test of freshness in that it could have, with reasonable diligence, been adduced at trial. But in any event I agree with Mr Watts that even if it was admitted it does not prove any material error on the Judge’s part. Ms Zhang was, at all material times, the registered proprietor and trustee. That she may no longer have a beneficial interest in the property is all but irrelevant. Under s 338(1), it is an offence to contravene or permit contravention of s 9.

[113] For completeness, the presentation of this new evidence must be viewed with some scepticism. If Ms Zhang sincerely believed she bore no responsibility for the management of the property, it is barely conceivable she would not have disclosed this at a much earlier stage in her dealings with the Council or at the trial. This was a key aspect of the prosecution. I cannot accept given the long history of her dealings with the Council that Ms Zhang would not have appreciated the significance of this.

[114] Next, the appellants claim Mr Jia was and is the head tenant and the tenancy agreements bearing his name were, in fact, evidence he was subletting the property rather than renting it as an owner/landlord. Significantly, no evidence has been adduced by the appellants in support of that claim, except in the form of divorce documents indicating the appellants are no longer married.

[115] As with the trust deed this is new evidence which, with reasonable diligence, could have been adduced at the trial. In any event it is immaterial. Whether or not Mr Jia and Ms Zhang were married at the relevant time did not form a part of the prosecution’s case and did not influence Judge Kirkpatrick’s conclusion. The fact of the matter is that they still co-habit 355 Richardson Road.

[116] Even if correct, I am not satisfied the claim that Mr Jia is merely a sub-lessor gives rise to a substantial miscarriage of justice. As noted, infringement of ss 9(3) and 338(1)(a) turns on whether use or designed use is in contravention of an operative
District Plan rule.²⁸The Act makes no distinction between the actions of a head tenant who is subletting and a landlord/lessor. Section 9(3) prescribes that “no person may use land in a manner that contravenes a district rule”. Additionally, it is clear that under s 340 both principal and agent may be liable for offences committed under the Act.

[117] As such no miscarriage of justice is made out on the facts. The evidence Mr Jia acted as a landlord and was involved in the design of units in contravention of the Plan is strong. He signed the tenancy agreements produced. Overall, there was sufficient evidence he was at the very least using the property inconsistently with the Plan, allowing more than the two residential units. In that regard he was rightly found responsible for designed use in contravention of the Plan.

Other procedural complaints

[118] The fourth and final topic covered by Mr Jia on appeal related to various procedural complaints that the District Court erred by:

(a) interpreting Davison J's decision as endorsing the validity of the search warrant;

(b) not requiring disclosure of photographs of the property taken on 3 October 2012;

(c) displaying inequality and impartiality as regards Mr Fryer and the Council officers;

(d) not inspecting more closely a bundle of documents produced by Ms Zhang;

(e) misunderstanding the appellants’ comments about whether they had been served with the charging document; and

²⁸Despite Mr Jia’s submissions, there is no reference to “owner” in the relevant District Plan rules.

(f) considering the documents seized from the property because they were not properly seized.

[119] I address them in turn.

[120] The first issue has been advanced at every stage of the litigation connected with these matters. The appellants continue to misunderstand the effect of Davison J’s judgment. Although his Honour found that the search was unreasonable and the evidence improperly obtained, he determined that the evidence should, nonetheless, be admitted having undertaken the balancing exercise under s 30 of the Evidence Act 2006. That was a proper conclusion to reach, and cannot be disturbed on the appeal before me.

[121] As for the second issue, the appellants claim they requested the disclosure of photographs taken on 3 October 2012 and that these would show the configuration of the property had changed between that date and the date of the search. I have been unable to find any evidence that such a request was made but in any event even if such evidence was available, irrespective of what it may show, the relevant date for the offending is 6 November 2013. The evidence of the inspection of the property on that date was described by Mr Fryer, and was supported by photographs. It was this evidence which led the Judge to find the charges proved.

[122] Having reviewed the notes of evidence, I am satisfied there is nothing to the general complaint of unequal treatment. The appellants allege actual bias. It is apparent to me from the notes of evidence and the careful reasoning in Judge Kirkpatrick’s decision that he exercised commendable patience and even-handedness throughout the hearing. He accommodated the appellants’ difficulties in expressing themselves and understanding the sometimes complex and detailed aspects of the relevant law. I can see no basis to criticise the trial Judge.

[123] Plainly the appellants are unhappy with the Judge’s conclusions but, for example, their complaint that the Judge should have punished Council officers in respect of the search underscores the misapprehensions which the appellants share on the criminal process.
[124] Despite the appellants’ complaints, Judge Kirkpatrick plainly considered the bundle of documents Ms Zhang handed up to him at the end of her closing submissions.²⁹He commented they were documents lodged in relation to the pre-trial appeal regarding evidence obtained during the search, a matter he stressed he could not reconsider. I cannot fault that reasoning. Indeed, at the conclusion of his conviction decision, Judge Kirkpatrick made passing reference to a claim by the appellants that they had not seen the charging documents and were unaware of the particulars. He described it in the following terms:³⁰

“At a late stage in the hearing, both Mr Jia and Ms Zhang stated that they had never seen the charging documents and so were unaware of the particulars of the charge. They stated they had never been told that the offences under the RMA were related to the rules in the District Plan. I do not accept this as true. There was no explanation as to the basis on which they first appeared before the Court if they had not done so in response to the notice of a first appearance hearing. I also note that the pre-trial ruling in the High Court decision clearly refer to the charging documents and to the substance of the charges in terms of the rules in the District Plan. I am satisfied that both Ms Zhang and Mr Jia have been fully informed as to the nature of the charges against them and have had a reasonable opportunity to respond to those charges.”

[125] The justification for the Judge’s conclusions emerges from a review of the notes of evidence, when Mr Jia appeared to claim he had never seen the charging document. This claim was made despite the fact that until he was granted leave to withdraw, the defendants were represented by counsel at their first four appearances at least, starting on 3 July 2014. The defendants entered pleas of not guilty at their second appearance on 3 September 2014. There were two further appearances before their counsel sought and obtained leave to withdraw. That the charges were not discussed with the appellants, despite multiple appearances, is all but impossible to accept.

[126] Finally, the appellants claim the seizure of the tenancy documents was improper because Council officers left a misleading notice of execution document at the address stating “no items seized, photos only”, and the seized documents were Mr Jia’s, but Council officers returned copies to Ms Zhang. Judge Kirkpatrick dealt with this issue when he observed that the notice in question was left in the lower level

²⁹Conviction Decision, above n 1, at [36].

³⁰At [51].

of the unit from which nothing was seized. Only photographs were taken. Thus the notice was correct.

[127] Secondly, if a copy of the seized documents was returned to Ms Zhang rather than Mr Jia, the point is academic. The documents were returned to the same address they were taken from, which happens to be an address shared by Mr Jia and Ms Zhang. There can be no question of a miscarriage of justice.

The abatement notice

[128] As well as the general defences already discussed, in relation to the abatement notice offence the appellants submit the Judge erred by not invaliding the abatement notices that were the subject of one or more of the charges against Ms Zhang, and failing to recognise that a limitation issue barred the abatement notice charge.

[129] In respect of the first ground, they argue the abatement notices were defective and/or impossible to comply with because:

(a) compliance would have required the removal of load-bearing walls rendering compliance unsafe, unreasonable or effectively impossible;

(b) the tight timeframe provided for compliance was unreasonable; and

(c) the abatement notices should not have been addressed to Ms Zhang because she had no ability to give effect to them.

[130] The proper mechanism for challenging an abatement notice is provided for under s 325 of the Act. This gives the recipient of an abatement notice 15 working days, after service, to lodge an appeal in the Environment Court. All abatement notices include advice on how and when to appeal. The notices served on Ms Zhang were in the prescribed form and contained these instructions. She did not appeal them.
[131] Furthermore, in the pre-trial admissibility hearing the defendants challenged the legitimacy of the abatement notices.³¹

[132] Mr Watts submits there is sound public policy in not allowing abatement notices to be challenged outside the statutory processes provided under the Act. He may well be correct, but in my view there are more prosaic answers to this claim.

[133] First, the relevant abatement notice required Ms Zhang to “remove all locks or obstructions that prevent internal access through doorways in the lower level of the building”. Compliance with that requisition could not have adversely affected the structural integrity of the building.

[134] Secondly, the abatement notices provided a three-month period for the removal of kitchen facilities and doorway obstructions from the lower level of the house. That is hardly an unreasonable period within which to comply, and no request was made to extend the time for compliance.

[135] Thirdly, Ms Zhang was the registered proprietor of the property. Even if, as is now suggested, her ownership of the property is as a trustee, this does not remove her responsibility.

[136] The appellants also argued the abatement notice charge in respect of Ms Zhang is time barred because it was filed more than six months after the three-month time period specified in the abatement notice expired.³²The difficulty with that submission is that the conduct which is the subject matter of this charge continues until compliance. In that sense the conduct amounts to a continuing offence. The particulars of the charge allege non-compliance “on or about 6 November 2013”; the date of the search, and not the date by which Ms Zhang was required to comply with the abatement notice. Thus the charge reflects the position that, as at the date of the search, Ms Zhang had still not complied with the abatement notices issued on 20 February 2013. The charge having been laid within six months of the date of the offence, no limitation issue arises.

See Auckland Council v Zhang, above n 5, at [118]-[120]. There Judge Harland commented on the issues with challenging the legitimacy of the abatement notices.

³²Resource Management Act 1991, s 338(4).

[137] For these reasons, I agree with the Judge that the elements of the offence of failing to comply with an abatement notice under s 338(1)(c) were made out, and none of these arguments provided a defence.

Conclusion

[138] I do not accept that any of the grounds raised either individually or in combination give rise to a risk that a miscarriage of justice has occurred. The appellants have not identified any error, irregularity or occurrence in or in relation to or affecting the trial which may have created a real risk the outcome of the trial was affected, or which has resulted in an unfair trial. For these reasons I am satisfied the appeals against conviction should be dismissed.

Sentence appeal

Appellate principles

[139] Section 250(2) of the CPA states the Court must allow the appeal if satisfied that for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.³³

[140] The touchstone is whether the sentence imposed is manifestly excessive.³⁴The focus is on the sentence imposed, rather than the process by which it was reached.³⁵

The sentencing decision

[141] In assessing the seriousness of the offending, the Judge observed the appellants’ conduct was deliberate and carried out despite earlier attempts by the Council to obtain compliance with the Plan, including by issuing abatement notices to Ms Zhang. He also noted that the offending was for economic gain and that the principles of accountability and denunciation were engaged.

³³Criminal Procedure Act 2011, s 250(3).

³⁴Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].

³⁵At [36].

[142] While observing that the direct environmental damage was very low, the Judge found the contravention of rules relating to density of development in residential areas for financial gain nevertheless required acknowledgement. The Judge considered the offending sat at the higher end of the range of comparable cases and that the appellants’ actions and lack of remorse justified the imposition of fines at a commensurate level. He set a starting point of $30,000 for the contravention of the rules, noting an apparent convention that where related individuals had been charged in respect of the same offending the usual approach is to divide the fine. This he did.

[143] In relation to the breach of the abatement notice, the Judge accepted there should be a lesser starting point, and considered that a fine equivalent to one sixth of the starting point for the other offending was appropriate.

[144] He did not accept there were any personal mitigating features, rejecting the suggestion of entrapment and innocence, submissions he found underscored the appellants’ lack of remorse.

[145] On the charge of using the property for multi-residential units the Judge fined each of the defendants $15,000. On the charge of breaching the abatement notice he fined Ms Zhang $5,000.

[146] Pursuant to s 342 of the Act, Judge Kirkpatrick ordered that the fines be paid to the Council, subject to a deduction of 10 per cent to be credited to the Crown.

Approach

[147] The only submission advanced in support of the appeal against sentence was that the District Court erred in imposing fines on the appellants because the appellants were not guilty. In all the documentation presented in relation to the appeal against sentence, the appellants simply assert that no fines should have been imposed because neither was guilty. This was a claim which Mr Jia repeated in his oral submissions to me. I attempted to explain to Mr Jia that, in the event I was to dismiss the conviction appeal, he may wish to make submissions on the question of penalty. In response he simply repeated that because he and Ms Zhang were not guilty, they should not be liable for any fines imposed.
[148] While the appellants have failed to particularise an error in Judge Kirkpatrick’s methodology, for their benefit I have determined to approach the question of the sentence appeal afresh.

Methodology

[149] Ms Zhang and Mr Jia were jointly convicted of contravention of s 9 of the Act, an offence pursuant to s 338(1)(a). Ms Zhang was also convicted of contravention of abatement notices, an offence pursuant to s 338(1)(c). Section 339(1) provides that the maximum penalty for a person who commits an offence against s 338(1) is liable on conviction to imprisonment for a maximum term of two years, or a fine not exceeding $300,000.

[150] Sentences imposed under the Act are dealt with under the Sentencing Act 2002, in accordance with the principles it codifies, insofar as the particular case engages them.³⁶The orthodox three step approach to sentencing is followed. As Randerson J stated in Selwyn Mews, the purposes of s 7 which will be particularly relevant in environmental cases include holding the offender accountable for the harm done, promoting a sense of responsibility for the harm, denunciation and deterrence (both personally and generally). Additionally, a number of principles will be salient, including:

(a) the gravity of the offending and the degree of culpability involved (including the extent to which the conduct was deliberate or reckless);

(b) the seriousness of the offence and the penalties available;

(c) consistency in sentencing levels;

(d) the effects on victims where applicable;

(e) the particular circumstances of the offender; and

³⁶R v Conway [2005] NZRMA 274 (CA) at [63], citing Selwyn Mews Ltd v Auckland City Council

HC Auckland CRI-2003-404-159-161, 30 April 2004 at [35]-[41].

(f) any factors mitigating the adverse effects, including repairing damage.

[151] Miller J, surveying the existing case law, summarised the principles in pollution cases as follows:³⁷

“a) The offender's culpability. Deliberate or reckless conduct is an important aggravating feature of the offence. Inadvertence may earn leniency if appropriate efforts have been made to comply.

Any infrastructural or other precautions taken to prevent discharges.

The vulnerability or ecological importance of the affected environment.

The extent of the environmental damage, including any lasting or irreversible harm, and whether it was of a continuing nature or occurred over an extended period of time. Where no specific lasting harm can be identified, an allowance for harm may be made on the assumption that any given offence contributes to the cumulative effect of pollution generally.

Deterrence. Penalties should ensure that it is unattractive to take the risk of offending on economic grounds.

The offender's capacity to pay a fine.

Disregard for abatement notices or Council requirements. Abatement notices are designed to allow a Council to put a stop immediately to unlawful discharges. If they are to work as intended the Court must treat non-compliance as inherently serious.

Co-operation with enforcement authorities, and guilty pleas.”

[152] It was Miller J’s summary which Judge Kirkpatrick relied on.

[153] In the present context I consider accountability, denunciation and deterrence are the salient purposes of sentencing. Focus on the culpability of the appellants, the seriousness of the charge (including the stern penalty available), consistency with comparable cases, and need to fix a fine which is capable of being paid but will sufficiently deter are all factors the Judge rightly took into account.

Thurston v Manawatu-Wanganui Regional Council HC Palmerston North CRI-2009-454-25, CRI- 2009-454-24, 27 August 2010 at [41] (footnotes omitted).

Assessment

[154] I agree with Judge Kirkpatrick that all indications are this was deliberate offending, which was carried out despite advice from Council as early as 17 July 2012 that the appellants may be using their land in contravention of the Plan. Indeed, despite abatement notices and an inspection in late 2012, they increased the degree to which their use of the house was non-compliant with the Plan. That their contravention was part of a commercial enterprise adds to their culpability.

[155] The underlying seriousness of contraventions of planning regulations is reflected in the stern maximum penalty, though it should be noted that there can be substantial variety in the extent and seriousness of contravention. It is well established that the appropriate fine is one which imposes a sufficient deterrent on the offender. As Barker and Williams JJ aptly observed in Machinery Movers Ltd v Auckland Regional Council:³⁸

“If fines are too low, they will be regarded as a minor licence fee for offending and convey the idea that the law may be broken with relative impunity.”

[156] The extent of harm to the environment is not an integral consideration in this context, though as Judge Kirkpatrick noted some environmental harm, in the wider sense of the phrase, does result from poor use of infrastructure in urban areas:³⁹

“While the extent of direct environmental damage caused by their offending was very low, the rules that were contravened have been put in place through the extensive participatory process required under the [Act] and represent a common approach to the regulation of land use in the public interest for, among other things, the maintenance and enhancement of amenity values so that people and communities can order their lives with some assurance.”

[157] In fixing a starting point Judge Kirkpatrick referred to a number of comparable cases, four of which I have found useful here:

(a) In Dunedin City Council v Kennedy, the defendants owned or controlled three properties, each with two semi-detached units.⁴⁰Each

³⁸Machinery Movers Ltd v Auckland Regional Council [1994] 1 NZLR 492 (HC) at 500.

³⁹Sentencing Decision, above n 2, at [31], citing Westfield (NZ) Ltd v North Shore City Council

[2005] NZSC 17, [3005] 2 NZLR 597 at [10] per Elias CJ.

Dunedin City Council v Kennedy DC Dunedin CRI-2014-012-1706, CRI-2014-012-1709, 18 August 2014.

property had a total of first five, then later six, habitable rooms. The Judge found the defendants’ actions were deliberate, and that there was a direct financial benefit in contravening the density rules. The Judge identified $20,000 as an appropriate starting point for each offence, taking into account the maximum penalty, the need for deterrence, and the deliberate nature of the offending and therefore high culpability.

(b) In Auckland Council v Hannay, the defendants faced one charge of permitting two residential units on a single site.⁴¹They had been granted a resource consent to construct an accessory building on the property to be used as a garage and workshop. Subsequent inspection by Council officers revealed it was being used as a residential unit. Warnings were issued, which the defendants complied with for a time before converting the space back to a residential unit. The Judge considered the circumstances less serious than in Kennedy, and adopted a starting point of $13,200.

(c) In Dunedin City Council v Gracie Ltd, the defendant was using a studio extension which had been granted resource consent as a second residential unit.⁴²The Council gave the defendant an opportunity to remedy the breach, and subsequently issued an abatement notice. Multiple complaints were received over the offending period. The maximum penalty was $600,000, as the defendant was not a natural person. The Judge considered the offending less serious than that in Kennedy, which involved a deliberate and sustained attempt to deceive Council on three separate occasions. But bearing in mind the issuance of an abatement notice, he set the starting point at $18,000, more than was imposed in Hannay.

(d) In Tauranga City Council v Jacko Basil Holdings Ltd, the company and Mr Fulcher were charged with using land in contravention of the City

Auckland Council v Hannay DC Auckland CRI-2014-004-4045, CRI-2014-004-4046, 2 October 2014.

⁴²Dunedin City Council v Gracie Ltd DC Dunedin CRI-2014-012-2277, 4 November 2014.

Plan, namely establishing a second residential unit on land.⁴³An abatement notice was issued, and though the matter appeared to have been resolved, four years later the Council received a further complaint. The Judge found the defendants’ conduct was more serious than in comparable cases, because of the level of diversion/obstruction and the breach of the abatement notice. The abatement notice breach was taken into account in fixing the starting point, which led to a starting point of
$30,000 for the company, and $10,000 for Mr Fulcher.

[158] I agree with Judge Kirkpatrick’s assessment that the appellants sit at a medium to high level of culpability when compared with these cases. Their conduct was plainly deliberate, continued despite correspondence with Council, and was profitable. I am also wary of imposing what might be seen as a modest licence fee to engage in unlawful practices. The starting point arrived at, $30,000 for the totality of the breaches of the Plan rules, or $15,000 for each defendant, is in line with high culpability offending involving multiple defendants. It is sufficient to deter them and others, and signals to the public that behaviour of this sort is unacceptable.

[159] Because only Ms Zhang was charged with breach of the abatement notice, I have not treated this offending as an aggravating feature, but in acknowledgment that it is part of the course of conduct which I have found elevates the appellants’ culpability, I agree with Judge Kirkpatrick that only a minor uplift is warranted. No more than $5,000, the additional penalty imposed, is justified. While a total starting point of $20,000 for Ms Zhang might be viewed as stern, it is comparable with the starting points adopted in Kennedy, which did not involve breaches of abatement notices.

[160] Judge Kirkpatrick provided no discounts for mitigating factors and I do not consider he erred in this regard. Of the potential sources of mitigation, none is available here. It is plain that a discount for remorse was unavailable, and the defendants failed to co-operate with the authorities in any meaningful sense.

⁴³Tauranga City Council v Jacko Basil Holdings Ltd [2017] NZDC 3273.

[161] Finally, the order that the fines be paid to the Auckland Council, subject to a 10 per cent deduction which was paid to the Crown, complied with the requirements of s 342 of the Act.

[162] For the foregoing reasons I am not satisfied the Judge erred in his sentencing decision, or that a different sentence should be imposed.

Result

[163] All appeals against conviction are dismissed.

[164] All appeals against sentence are dismissed.

Moore J

Solicitors/Counsel:

Meredith Connell, Auckland

Copy to:

The Appellants

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