Cancian v Tauranga City Council

• Jurisdiction: New Zealand
• Judge: Lang J
• Judgment Date: 28 March 2022
• Neutral Citation: [2022] NZHC 556
• Docket Number: CRI-2021-463-55
• Court: High Court

Between

Danny John Cancian

First Appellant

The Engineer Limited

Second Appellant

Bruce John Cameron

Third Appellant

and

Tauranga City Council

Respondent

[2022] NZHC 556

Lang J

CRI-2021-463-55

IN THE HIGH COURT OF NEW ZEALAND

ROTORUA REGISTRY

I TE KŌTI MATU A O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

Sentence — appeals against convictions on several charges under the Building Act 2004 which prohibited the carrying out of building work otherwise than in accordance with a building consent — failed subdivision — liability of Licensed Building Practitioner's for inadequate supervision of restricted building works

Appearances:

W T Nabney for First Appellant

G Allan and M Beech for Second and Third Appellants

R J A Marchant and N A Speir for Respondent

JUDGMENT OF Lang J

[on appeals against conviction and sentence]

This judgment was delivered by me on 28 March 2022 at 10.30 am.

Registrar/Deputy Registrar

Date

1 These appeals relate to convictions entered against the appellants following a lengthy Judge-alone trial in the District Court at Tauranga. In a decision delivered on 10 December 2020 (the liability decision), Judge P G Mabey QC convicted the appellants on several charges laid by the Tauranga District Council (the Council) under s 40 of the Building Act 2004 (the 2004 Act). 1 This prohibits the carrying out of building work otherwise than in accordance with a building consent. The Judge subsequently imposed fines on the appellants in a sentencing decision delivered on 28 April 2021. 2

2 The first appellant, Mr Cancian, appeals against both conviction and sentence. The second and third appellants, Mr Cameron and The Engineer Ltd, appeal only against conviction. At the commencement of the hearing they abandoned their appeals against sentence, and they are accordingly dismissed.

Background

3 The first appellant, Mr Cancian, was at all material times the director and a shareholder of a company called Bella Vista Homes Limited (Bella Vista). Bella Vista acquired land near Tauranga for the purpose of undertaking a subdivision known as The Lakes. It subdivided the land into sections and then sold land and building packages in the subdivision to the public.

4 Bella Vista engaged the second appellant, The Engineer Limited, to carry out engineering work in relation to the construction of dwellings on the land in the subdivision. That company is owned and operated by the third appellant, Mr Cameron.

5 Bella Vista obtained building consents from the Council and then began constructing dwellings on sections within the subdivision. As construction work progressed, the Council and Worksafe New Zealand (Worksafe) became concerned regarding the quality of the work that was being carried out. Worksafe intervened out of concern for the safety of Bella Vista's employees, and the Council declared some

of the dwellings to be dangerous. These decisions led to the cessation of construction work in the subdivision. Some of the buildings were eventually removed

6 As the Judge emphasised in his liability decision, the enquiry in the District Court did not relate to why the subdivision failed. 3 Rather, it related to whether the Council could prove the allegations in the charges beyond reasonable doubt.

The charges

7 The Council laid charges against the appellants in relation to eight properties in the subdivision. These were:

• (a) 297 Lakes Boulevard

• (b) 297A Lakes Boulevard

• (c) 299 Lakes Boulevard

• (d) 301 Lakes Boulevard

• (e) 301A Lakes Boulevard

• (f) 303 Lakes Boulevard

• (g) 307 Lakes Boulevard

• (h) 5 Aneta Way

8 The Council laid separate charges against the defendants in relation to each property. However, each of the charges listed several particulars. Each particular comprised an allegation that the defendant in question had carried out building work that breached the terms of the building consent in a specified manner. The fact that the charges contained several discrete and often dissimilar allegations meant they were not representative charges in terms of s 20 of the Criminal Procedure Act 2011. No

objection was taken to this at the trial and it avoided the need for a multiplicity of charges to be laid. However, it meant the Judge needed to determine whether the prosecution had established any or all of the particulars listed in relation to each charge. As he observed in the liability decision, he was effectively required to reach a decision in relation to 93 charges. 4

Appellate approach

9 The appeals against conviction are brought under s 229 of the Criminal Procedure Act 2011 (the CPA). Section 232 of the CPA provides that the High Court may only allow an appeal against conviction if satisfied that the trial Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”. A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or that has resulted in an unfair trial. 5

10 Following Sena v Police, such appeals are to proceed by way of rehearing, and the appeal court is required to form its own view of the facts and determine the appeal accordingly. 6 If an appeal court comes to a different view from the trial Judge on the evidence, the trial Judge will next have erred and the appeal must be allowed. That said, the appeal is not to be approached de novo; it is for the appellant to show that an error has been made to such an extent that the process has miscarried. 7

Part One: Mr Cancian's appeal against conviction

11 Mr Cancian was convicted on charges that related to 297 Lakes Boulevard, 301 Lakes Boulevard and 5 Aneta Way. He was acquitted on charges relating to 297A Lakes Boulevard, 299 Lakes Boulevard, 301A Lakes Boulevard and 307 Lakes Boulevard.

297 Lakes Boulevard

12 The charge relating to 297 Lakes Boulevard contained six separate particulars. One of these related to the front wall, three related to the rear wall and two related to a rear wall known as the “store” wall.

13 Four of the particulars related to alleged defects in the location and spacing of vertical reinforcing steel used in the walls. This was installed within the blockwork before concrete was poured into the central cavity of the blocks. The Judge considered these defects were caused by Mr Josephs, the blocklayer who built the wall, and Mr Cameron, who had signed it off in a producer statement as “ready to pour”. He therefore did not accept the particulars relating to defects in the steel reinforcing had been established.

14 The Judge also found the prosecution had failed to prove a particular alleging that the height of the rear wall was 2.8 metres, whereas the maximum allowable height under the building consent was one metre.

15 The only particular on which the Judge found Mr Cancian guilty alleged that the footing of the rear wall was inadequately sized to resist soil loads. The building consent had been issued on the basis of the plans and specifications Bella Vista had supplied with its application. These showed the rear wall as being one metre in height. This meant the New Zealand Building Standard known as NZS3604 applied. This prescribed footings of at least 300mm x 300mm but did not require design input from an engineer. As matters transpired, however, the extent to which the site around the wall was excavated meant that a wall 2.8 metres in height was ultimately built. This was 1.8 metres in excess of the height shown in the plans and specifications. This meant the wall was constructed in breach of the building consent, and the height of the wall was such that its design required input from an engineer.

16 The Council's structural engineer, Mr Jacobsen, gave evidence that he measured the footings under the wall in September 2018 and found that they were 240 mm deep x 290 mm wide. This meant they did not comply with the measurements contained in the consented specifications. Furthermore, he considered a wall that was 2.8 metres in height would create loads and stresses requiring cantilevered footings at least 1.3 metres (1300mm) in width. The footing that had been installed was therefore inadequately sized to resist soil loads.

17 The Judge's reasoning in relation to this particular is as follows: 8

[267] Mr Cancian supervised work on this site and filed a ROW [record of work] in relation to the floor and footing.

[268] At the time he issued his ROW in relation to the footing it would have been obvious to him that the wall to be built on the footing would extend beyond the consented 1m height. As LBP [licensed building practitioner] authorised to certify footings he assumed the responsibility to ensure code compliance. The footing certified by him was not code compliant for reason that the consented wall was now impossible to build.

[269] He is caught by the Kwak principle under the particular relating to the inadequately sized footing but is not liable under the other two particulars.

18 Mr Nabney raises several grounds of appeal on Mr Cancian's behalf. These relate to the wording used in the ROW and the fact that another witness, Mr Gibson, accepted in evidence that he had supervised the construction of the footings on the rear wall. Mr Gibson had also filed a record of work in relation to this work. In order to understand these arguments it is necessary to describe some of the relevant background.

19 One of the issues that arose during the trial was whether Mr Cancian was the Licensed Building Practitioner (LBP) responsible for the building work that led to the charges. The 2004 Act creates a regime relating to restricted building work that is critical to the structural integrity of a building. 9 Such work can only be carried out or supervised by persons who are LBP's. 10 The 2004 Act...