Two recent decisions in Council prosecution cases may be of interest to Councils in their regulatory enforcement capacity under the Building Act 1991 and Resource Management Act 1991.

The High Court in Millman v Waitakere City Council heard an appeal on the grounds that the sentence imposed in the District Court was manifestly excessive. A total fine of $20,000 and costs of $1,050 had been imposed.

There were five separate charges, all relating to building work being undertaken without building consents.

The High Court endorsed the sentencing principles adopted by the District Court and agreed that, in total, the $20,000 fine was appropriate. However a $5,000 allowance was made for the financial circumstances of the defendant, his guilty plea and the remedial work he undertook. Accordingly the fine was reduced to $15,000.

The District Court in Thames-Coromandel District Council v A's Limited, considered the sentence after a guilty plea was entered in respect of a charge under the Resource Management Act 1991, for carrying out earthworks contrary to resource consent conditions. The Court was satisfied that the breach of the conditions was unintentional, though there was a degree of negligence relating to the failure to obtain advice in respect of the consent conditions.

In addition, aspects of the offending were deliberate because the company had knowingly changed the development with the intention of applying for variation to the consent after the event. Although there was no ongoing damage to the environment, the Court reinforced the importance of upholding the resource consent process. The defendant was fined $4,000 and required to pay $5,852 for the prosecution costs and $130 Court costs.

This is a general summary only and should not be taken as a substitute for specific advice.

For further information please contact Stephen Quinn, partner
stephen.quinn@phillipsfox.com

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