Builder sentenced under the Building Act 2004 and the Resource Management Act 1991

Auckland Council v John Liong Kiat Wong [2020] NZDC 23613

In this month’s article, I review the recent District Court decision in which Judge D A Kirkpatrick was asked to consider the penalties that should be imposed for charges brought against an individual under the Building Act 2004 and the Resource Management Act 1991 (RMA). 

Charges

The defendant, John Liong Kiat Wong pleaded guilty to four charges against him brought by the Auckland Council, all related to a site in Eden Terrace, Auckland. The charges were (i) carrying out building work without a consent; (ii) failing to comply with a notice to fix; (iii) failing to obtain a compliance schedule as required under s 100 of the Building Act; and (iv) permitting a contravention of s 9(3) of the RMA through converting a building in the business-mixed use zone into residential units, contravening the Auckland Unitary Plan. The various charges that Wong faced have maximum penalties ranging from $20,000 -$300,000, or two years imprisonment. 

Background

After concrete blocks were falling from the property in question onto a neighbour’s roof, a complaint was made in October 2018 to the Council that unconsented building works were occurring at the property. Wong confirmed works were taking place, however claimed that he did not have time to apply for the consents prior to travelling overseas. Following Council officers’ site inspection, which revealed the unfinished building works, and habitation in eight residential accommodation units, a stop work notice was issued  by the Council. 

The unauthorised building work included the division of space within the building for the residential units, installation of plumbing, electrical work, and the construction of a mezzanine floor, to which Wong offered the explanation that the Australian badminton team required urgent accommodation. 

In December 2018 a notice to fix was issued, requiring Wong to remove all unconsented works and return the building to the latest consented plans and use, or bring the building into compliance with the Building Act by April 2019. Abatement notices under the RMA were also issued requiring Wong to cease using the building as residential accommodation. In January 2020, a compliance check revealed that at least nine people were still occupying the unconsented units, meaning the Fire & Emergency New Zealand Regulations 2018 requirements were still not met. 

Aggregating features

It was submitted on behalf of the Council that there were numerous aggravating features to Wong’s serious offending under the Building Act. These included the scale of the unauthorised work, involving structural work over three levels, with nine apartments; the calculated and deliberate nature of the offending; prioritising commercial expediency over public safety; serious risks posed to neighbours; the lack of progress to regularise the situation; and the tenants living in the units for a substantial time without adequate fire safety. 

A fine of $100,000 was suggested on behalf of the Council, with discounts for the guilty plea and no history of conviction, citing cases to arrive at this figure, the Council submitted a fine of this level was needed to blunt any financial incentive to cut corners and proceed without a building consent. 

Counsel for the defendant submitted that the Council should arrive at a figure of $60,000 following the consideration of mitigating factors including Wong’s character and personal circumstances, and the guilty plea.  

Evaluation

In Judge D A Kirkpatrick’s consideration of the circumstances and submissions, he found that the offending called for a substantial penalty, and that a purpose of the Building Act is to provide for the safety of occupants of buildings. The deliberate behaviour of Wong in failing to obtain the necessary consents and required systems checked was noted by Judge D A Kirkpatrick as requiring a deterrent sentence. A starting point of $100,000 was accepted and following discounts Wong was sentenced to pay a fine totalling $80,000 across the four charges. 

NOTE: This article is not intended to be legal advice (nor a substitute for legal advice). No responsibility or liability is accepted by TM Bates & Co. Barristers / Solicitors to anyone who relies on the information contained in this article. All copyright in this article is retained by TM Bates & Co.