Seymour v Auckland Council

• Jurisdiction: New Zealand
• Judge: Brewer J
• Judgment Date: 17 April 2015
• Neutral Citation: [2015] NZHC 743
• Docket Number: CRI-2014-404-409
• Court: High Court
• Date: 17 April 2015

Between

Miles John Stanley Seymour and Yvonne Cecelia Seymour

Appellants

and

Auckland Council

Respondent

[2015] NZHC 743

CRI-2014-404-409

CRI-2014-404-410

IN THE HIGH COURTOF NEW ZEALAND

AUCKLAND REGISTRY

Appeals against convictions for failing to comply with a notice to fix under the Building Act 2004 — the appellants owned a property that contained a sleepout — the sleepout had been constructed prior to the coming into effect of the Building Act 1991 — the appellants had purchased the property in 1993 and had undertaken work that upgraded the sleepout, but they said it was work in the nature of maintenance or replacement of what was already there — the sleepout was now being used a self-contained dwelling — notice to fix referred to a determination that had been issued under s177 Building Act 2004 (Application for determination) which had gone against the appellants — the District Court found that the unlawful conversion of the sleepout took place before the Building Act 1991 came into force — however the Judge also found that much of the work the appellants had done required consents and the notice to fix was therefore issued validly — the appellants said that the Judge's findings in relation to the work done by them was not specified in the notice as work needing to be fixed — whether the notice had been sufficiently particular as to the work that was required for compliance.

Counsel:

R Dellow for Appellants

C Paterson for Respondent

Counsel:

David Connor/ Ross Dellow

JUDGMENT OF Brewer J

Introduction

1 Mr and Mrs Seymour own a house which has an attached sleepout. The Auckland Council considers the sleepout has unconsented features which need to be fixed. So, it issued a notice to fix and then prosecuted the Seymours when they did not comply with it. On 14 May 2014 they were convicted by Judge K Glubb in the District Court at Auckland. 1 On 3 November 2014 the Judge fined Mr Seymour $8,631 and Mrs Seymour $4,306. 2

2 Mr and Mrs Seymour now appeal their convictions and their sentences. To understand the issues raised by their appeals, some more background needs to be set out:

• (a) Mr and Mrs Seymour bought the property in 1993, after the Building Act 1991 had come into force. They say that the sleepout already existed at that time. They cannot be liable to fix unconsented work if it existed when they bought the property and had been completed before the 1991 Act came into force.

• (b) Mr and Mrs Seymour accept that they upgraded the sleepout. But, they say, it was work in the nature of maintenance or replacement of what was already there. They argue that they do not need a consent to maintain or replace what was already there.

• (c) The Auckland Council did not accept the Seymours' arguments. From 2010 the Council issued a number of notices to fix. After the third notice to fix was issued on 24 September 2010, Mr and Mrs Seymour applied, pursuant to s 177 of the Building Act 2004, for a determination in relation to the notice to fix. The 2004 Act prescribes a process by which they could do this. Essentially, the process involves a qualified person examining a situation, receiving any relevant evidence, and making a determination on the issues between

  the parties. A determination is binding on the parties concerned 3 and although there is a right of appeal to the District Court, 4 it must be filed within 15 working days after the date of the determination. In this case, the determination went against Mr and Mrs Seymour's position. However, they did not appeal it. The Council continued to issue notices to fix, with the final notice being issued on 22 September 2011. The notice relied on the determination. It was this notice to fix which founded the prosecution of the Seymours.

3 At the trial, Mr and Mrs Seymour maintained their position that they had not done the illegal conversion work on the sleepout and could not be compelled to fix it. They denied that the work they had done on the sleepout amounted to anything more than maintenance or replacement of what was already present.

4 The Judge, and I summarise broadly:

• (a) found that the unlawful conversion of the sleepout took place before Mr and Mrs Seymour bought the property and before the Building Act 1991 came into force;

• (b) rejected the Seymours' argument that all they had done was maintain or replace. He decided that much of the work they had done required consents and hence the notice to fix was issued validly but was not complied with;

• (c) convicted Mr and Mrs Seymour accordingly, and fined them.

Issues

5 The issues for me to decide are:

• (a) Given the Judge's finding that the unlawful conversion of the sleepout took place before the Building Act 1991 came into force, did he err in deciding that the notice to fix applied to work done by the Seymours?

• (b) If the notice to fix does apply to work done by the Seymours, should the Judge have found that their work was merely maintenance or replacement of building components and thus no consents were required?

• (c) If the convictions stand, are the fines manifestly excessive in all the circumstances?

Was the Judge wrong to hold that the notice to fix applied to work done by the Seymours?

6 The relevant part of the notice to fix is:

The utility building established under building permit in 1981 is currently in use as a self-contained dwelling unit. Work giving effect to the conversion was undertaken without building consent when consent was required under section 32 of the Building Act 1991, and the works remain non-compliant with Schedule 1 of the Building Regulations 1992 (the Building Code). All building works must comply with the Building Code: s 17.

The specific works that fail to comply are as follows:

• • B1 (Structure) floor

• • B2 (Durability) floor, ceiling and roof

• • E1 (Surface water) stormwater catchment

• • E2 (External moisture) floor, ceiling, wall cladding, openings and roof

• • E3 (Internal moisture) floor

• • G1 (Personal hygiene) floor and floor surfaces

• • G3 (Food preparation) floor and floor surfaces, kitchen

• • G13 (Foul water) internal waste pipes

• • H1 (Energy efficiency) insulation to floor

We also refer you to section 5.4.1 of Department of Building and Housing Determination 2011/033 dated 13 April 2011 for further clarification.

Please note that the above description includes only those non-compliant items that are known. Further items may be identified during any building approvals process initiated and may be subject to further Notices to Fix.

7 The Judge recognised that the Seymours' case in their defence was that the sleepout was built before the Building Act 1991 applied and therefore there had been no change in its use, and no unconsented works. 5

8 The Judge then said: 6

That clearly sets out the jurisdictional issue. What that means is that any building that predates the Act which remains unaltered (and that is the critical point) does not need to meet the requirements of the building code. Accordingly, if I was to find that the building had remained unchanged after the passage of the 1991 Building Act, then the territorial authority could not issue a notice to fix, and that would be a complete answer to the prosecution. However, nothing is as simple as that.

9 So, the Judge had to look at the evidence and decide what the prosecution had proved about when the sleepout was built, and what had been done to it since it was built. He did, and held that: 7

… it is clear that the main structure of the sleepout, the flooring, the toilet and shower, the hand basin existed at the time the property was purchased.

10 The Judge then looked at the work Mr and Mrs Seymour had done to see if that required consent under the 1991 Act: 8

It is also clear that it had a significant upgrade in terms of wall linings, ceiling described, as I say, by Scott Seymour as “black paper and chicken wire”, the installation of a kitchen, the change of the doors, the door out on to the deck and the door internal, the installation of windows, all of which I am satisfied, having heard from Mr Holmes, would have been consentable works. Certainly, if it was intended to link the main residence with the sleepout, that too should have been included. It was not.

11 The Judge's conclusion was: 9

I conclude that that should have been the subject of consent, and therefore it is clear that the territorial authority had grounds for and were entirely justified in their issuing of the notices to fix. Not all work done on that sleepout predated the Act. It follows, therefore, that it was incumbent upon

the defendant to engage with the council

...