BEFORE THE ENVIRONMENT COURT Decision No. [2017] NZEnvC 131 IN THE MATTER AND BETWEEN of the Resource Management Act 1991 of an appeal pursuant to s 321 of the Act EE KUOH (AUGUSTINE) LAU (ENV-2016-AKL-251 ) Third Respondent First Applicant AND AUCKLAND COUNCIL Respondent Court: Environment Judge JA Smith Hearing: At Auckland, 16 August 2017 Appearances: Mr DJ Collins for Auckland Council Mr Lau for himself Date of Decision: 16 August 2017 Date of Issue: 21 August 2017 ORAL DECISION OF THE ENVIRONMENT COURT A: The proceedings are struck out as frivolous and vexatious under s 279(4). B: As to costs: (i) Mr Collins is to provide a detailed invoice as to the hours engaged, including the costs of the hearing and preparation of the memorandum for costs. That is to be forwarded to the Court and Mr Lau within three days; (ii) Mr Lau is to provide any response within a further five working days (Friday 25 August); (iii) the Court will then conclude the issue as to costs. - Lau v Auckland Council
2 REASONS Introduction [1] Mr Lau and Jesus (2016) Company Limited are third and fourth respondents to Environment Court orders issued on 16 December 2016 and subject to minor correction on 7 January 2017. The appeal was unsuccessful in the High Court, confirmed by High Court Minute of 23 March 2017. [2] This Court has issued an interim decision on an application for change or cancellation of part of the enforcement order by the third and fourth respondents. This is annexed hereto for the purposes of clarity and marked A. The application [3] The application for change or cancellation of the enforcement order related to three parts of the decision, all being orders in relation to a "garage area" attached to the main dwelling unit. This area consists of a ground floor former garage converted to a residential dwelling, and an upstairs area (rumpus room) converted also to a dwelling. As I understand it, both had kitchens and bathrooms in them, and the Court made orders requiring: A (iii) decommissioning the dwellings within both levels, upstairs and downstairs, of the converted garage connected to the main dwelling by removing : (a) all kitchen and food preparation areas; (b) (c) any bathroom fixtures including toilets, showers and vanities; and any internal wall or partition that is not identified on the original building plans held by the Council. [4] The application for change or cancellation relates only to that aspect of the enforcement order. It is also common ground that on 18 and 19 July, the Council, with police officers and contractors, undertook the decommissioning of the bathroom, kitchen facilities and adjoining walls to render the two areas part of the main dwelling. The evidence [5] Mr Northover has confirmed to us in evidence that it is now considered, under the Building Act, a sleeping household or, in RMA terms, a single dwelling, and accordingly complies with the original building consent issued and the permitted activity status for a single dwelling in Precinct A areas.
3 [6] It was identified at the earlier hearing that the main dwelling itself had a line going through it, showing it was partly in Precinct A and Precinct G, however the Council acknowledged that the main dwelling itself, did have a building consent and that a single-household occupation use was permissible. In short, they treated it as part of Precinct A rather than G. [7] The change application appears to be based largely on an argument that the parts of the property that had the kitchen and bathroom facilities were within Precinct A, and therefore they should remain. Given the decision of the Court, ([2016] NZEnvC 251, particularly paragraphs [30] and [31]) this argument was difficult for the Court, or I might add Mr Collins in his submissions, to understand. [8] The application is not a subject of easy analysis given the conclusion that, if it is within [Precinct] G, no dwelling is permitted and, if it is within A, then the two extra households significantly exceed the one dwelling that is allowed for the main dwelling. [9] Mr Lau never grappled with this issue, and instead diverted attention to questions of an agreement between the landowner (which is not Mr Lau) and Greenland Properties Limited in relation to a subdivision consent they had obtained, and the requirement for sewage to be installed as part of that consent. [10] In the end, I found those arguments essentially impossible to follow. They seemed to be suggesting that, because Greenland should have installed the sewage by March 2017, then Mr Lau would have been able to get consent for the multiple households and therefore the Court should not have made the order. [11] As Mr Northover put it succinctly: "The Council (I add and the Court) can only deal with the facts as they are now and cannot contemplate what might happen in the future". Any subdivision consent agreement is, of course, permissive rather than mandatory, and what action the Council might take to install sewage in the absence of that subdivision consent being utilised is a matter of pure conjecture. Current situation [12] Importantly, since the Court made the orders in December 2016, the sewage still hasn't been installed. More importantly, and relevantly, the works required by have been completed by the Council under s 315, given the failure to
comply by Mr Lau or the other three respondents. 4 [13] In the interim decision the Court pointed out that the application for change/ cancellation appeared to be frivolous, vexatious and an abuse of process. Having heard from the parties, I am now reinforced in that view. [14] Mr Northover told us that he arranged with Mr Lau to go to the property on the morning of 18 July 2017 to undertake the decommissioning work in the garage. On 17 July, in the morning, Mr Lau filed proceedings in the Court seeking this change or cancellation. He then wrote an email to Mr Northover saying that he would not meet with him the following day at 8.00am because he had applied to the Court. Mr Northover then says in his evidence that when he attended on 18 July, Ms Mao gave him the phone to talk to Mr Lau, "who told me we cannot enter as he had stopped the Court order". He then sent a copy of an email (PLN29). [15] Mr Northover goes on to say "Mr Lau arrived at 9.20 and raised objections to the (enforcement) order, saying that the Court had stopped it and we had to reply to the Court on 19 July 2017". [16] The relevant documents are simply a minute from the Court saying: I trust everyone has seen Mr Lau's application to change the enforcement order in relation to 387 Ormiston Road, Flatbush, Auckland. Could the Council please provide a response to this application by Wednesday 19 July. PLN29, referred to by Mr Lau, simply is an email from Mr Lau to the hearing manager in the Environment Court "Paul from Auckland Council at the property now and ignored Court instructions". [17] I conclude as a matter of fact that Mr Lau purported that the letter from the Court stopped the enforcement order. That is patently not correct and the assertion appears to be based simply upon the Court allowing the Council time to respond to the application. Evaluation [18] Having concluded that the Council were legitimately complying with the enforcement order, one must reach the conclusion that the continuation of this
5 application is futile. In final reply, Mr Lau acknowledged that when he said "I can't do anything". It appears that his hope was that by filing the application the Council would be dissuaded from undertaking compliance with the enforcement order. [19] I note that the enforcement order itself was made in December 2016. It required a number of steps to be undertaken and, at the latest, required compliance by February 2017. The Council waiting until July 2017 to utilise the s 315 order must be seen as considerable leniency on their part and an attempt to get an agreed solution. I do not criticise them for that, but it demonstrates that the Council was not acting precipitately or unfairly. [20] More importantly, in suggesting that the Council undertook the work after he filed the application, Mr Lau misrepresents the position. I am satisfied that Mr Northover told Mr Lau he was coming to decommission the relevant facilities, and this spurred Mr Lau to file the application in the hope that it would dissuade the Council from doing so. Given I accept Mr Northover's recollection of events on 18th, it appears that Mr Lau then misrepresented the nature of the Court's direction in the hope that this would dissuade Mr Northover (also referred to by Mr Lau as Paul) from complying with the order. Criteria for strike out [21] I set out in the interim decision a number of matters that would need to be addressed by Mr Lau if he wished to persuade the Court that there was no abuse of process. He says that he did comply with the Court order by giving notice to the tenants, and also by fencing several of the areas. The veracity of that appears to be somewhat in dispute, but is of no particular moment in this case. What I am concerned about is that Mr Lau had no evident intention of decommissioning the facilities in the garage at all, and this is reinforced by his approach when Mr Northover contacted him to advise the Council was undertaking the work. [22] So far as the aspects of the matter that have changed since the order was made, the two critical issues is that the sewage has still not been installed, and that the Council has now complied with the enforcement orders under the powers granted by the Court pursuant to s 315. [23] Mr Lau suggests that the facilities in the garage were within Precinct B rather.-
6 than Precinct A. However, he produced no evidence to substantiate that allegation; in fact, the overhead photographs that he produced were ones that the Council had given to the Court which showed a line going through the garage. The Council has never been concerned with which side of the line the facilities were on, and neither is the Court. On either side of the line they are not permitted. [24] The objectives of the Plan discussed in the decision cannot be met by another method. In this regard, Mr Lau seems to take a much broader approach. There is discursive discussion of homelessness, housing requirements and the fact that once the sewage is installed he will be able to get consents and operate this legitimately. In a practical sense, that cannot mean that people can anticipate change that mayor may not occur in the future; or that they can refuse to comply with Court orders. Whether the applicant can provide any certainty as to costs [25] Council had indicated in its initial memo that they sought indemnity costs. They have now firmed that up to something in the order of $5,335.00, excluding GST plus the cost of today's hearing. Mr Lau wants to make a submission on costs and in the circumstances I think that would be appropriate, once the Council confirm the exact sum they are seeking. [26] Nevertheless, Mr Collins asserted that Mr Lau now owed something in the order of $250,000 in court costs over various proceedings, none of which has been paid. Mr Lau's response was that he was suing the Council and was not going to pay the orders. Overall evaluation [27] I conclude the proceedings in this case are vexatious, frivolous and have no reasonable prospect of success. They are misconceived entirely, and there is no factual basis to even provoke the application. [28] Furthermore, the motivation for this application appears to have been to delay or prevent the Council from undertaking a legitimate function by Court order under s 315. [29] Mr Lau seems to show little regard to orders made by this Court, or the responsibilities of the Council under the relevant statutory auspices within which it acts. [30] This does appear, on the face of it, to be a case justifying indemnity costs, but I
make the following directions in this regard: 7 (a) the proceedings are struck out as frivolous and vexatious; (b) as to costs, Mr Collins is to provide a detailed invoice as to the hours engaged, including the costs of the hearing and preparation of the memorandum for costs. That is to be forwarded to the Court and Mr Lau within three days; Mr Lau is to provide any response within a further five working days (Friday 25 August); the Court will then conclude the issue as to costs. ith Judge