This recent decision concerns a prosecution brought by the Manukau City Council against an individual developer. Mr R faced two charges laid under s80(1)(a) of the Building Act 1991, namely permitting building works to be undertaken otherwise than in accordance with a current building consent.
On the fi rst of these charges he was fi ned $5000 together with court costs of $130, and on the second charge he was fi ned $10,000 and, likewise, ordered to pay court costs of $130. On a further charge of permitting the use of a building for which that building was not safe s80(1)(b), he was fi ned $5000 together with court costs of $130.
An appeal was brought by Mr R against this sentence. The facts of this case were as follows. In 2004 Mr R acquired a commercial building in Papatoetoe, Auckland. He subsequently developed the building into separate units or tenancies, even though it was only previously suitable for warehousing and light manufacturing.
For that purpose he employed a building consultant/project manager. On November 23, 2004, the council received a complaint from a neighbouring land owner who expressed concern as to activities occurring in the building and, in particular, about the number of people who appeared to be residing in, or working from the building.
An inspection by the council revealed that, in fact, four separate units had been created within the building by means of the construction of internal partitions and the carrying out of associated plumbing and drainage works.
The four units were being used for a mechanic’s garage, a panelbeater’s garage, a joinery shop and residential accommodation respectively. Such work had been undertaken without a building consent.
The works were not up to standard as there were no fi re-rated partitions, nor any proper separation between working tenancies and sleeping accommodation. There was inadequate ventilation and insufficient egress from the units, and there was no complying vapour extraction system for a spray painting booth which formed part of the panelbeater’s garage.
Storage of dangerous goods was inadequate, and electrical equipment was unprotected. It was deemed to be a dangerous building for the purposes of s64 of the Act. On January 12, 2005, the council issued a warrant pursuant to s70 of the Act.
The warrant required that the occupants cease to occupy the premises, that Mr R apply for a building consent for the demolition of unauthorised building works within 14 days and to apply for a CCC within seven days of completion of the works.
On January 17, 2005, there was a further inspection by the council. This time it noted that an internal staircase had been removed without authorisation. Accordingly, the council advised that the mezzanine floor ought to be vacated immediately.
The council carried out another inspection on January 24, 2005, and noted this time that a staircase had been constructed from the ground fl oor of the factory to the mezzanine without building consent. It did not comply with the relevant building code nor with the requirements of the NZ Fire Service.
It was also noted that contrary to the warrant issued pursuant to s70 on January 12, 2005, the mezzanine fl oor was being used for residential accommodation for the panelbeater. Finally, an inspection took place on March 13, 2005, which revealed that the factory was occupied by two tenants, the panelbeater and an electrician, and that the mezzanine floor was still in use.
The High Court judge was asked to determine the appeal against the sentence. He considered the relevant sentencing criteria set out in the decision of Wilson v Fowler. He concluded as follows: Appellant culpability The judge agreed that Mr R had been working through his building consultant and, therefore, his fault was mainly vicarious.
However, he had directed the construction of the staircase himself without applying for the building consent and, therefore, his culpability was moderately high. This was especially so since he had instructed this to happen after the warrant had been served upon him.
Potential harm The judge assessed that there was significant risk of potential harm. The plumbing and drainage work did not comply with the requirements of the law, and neither did the partitioning.
There was a real risk to persons and property, and this was added to by the fact that high risk activities were being conducted on the premises and people were living there. Attitude to offending Aside from the construction of the staircase once the warrant had been issued, the court held that Mr R had been reasonably cooperative.
The judge then went on to say that there was clearly a need for an element of deterrence in sentencing under the Act. He ruled that the fines/sentence were not excessive when viewed against the sentencing criteria applied. The appeal was dismissed.