Source: Auckland Council
A text message sent by a project manager claiming Auckland Council was “playing silly bastards with the consents”, illustrated a “cavalier attitude towards compliance obligations.”
That was the finding of Judge Kirsten Lummis when fining York Project Limited and Simon Church a total of $55,000 on four charges of carrying out work without a building consent.
Three other companies and two directors pleaded guilty in the Auckland District Court to five other offences under section 40 of the Building Act 2004.
Guardian Retail 415 Limited and Guardian Retail 405 Limited were fined a total of $32,500 as owners of the properties while The Carpentry Company Limited and its directors Svend Johannsen and Damian Baker were fined a total of $45,500 for falling foul of the Act.
In dishing out the fines, Judge Lummis said, “Deterrence was important in this case; that there was a real risk that unless fines were substantial, they would have no deterrent effect and instead come to be considered as no more than licence fees.”
She went onto say, “There was a risk that if the court imposed a weak penalty, other developers may be tempted to circumvent the building consent process in favour of the certificate of acceptance process to achieve a speedier completion and other commercial efficiencies. Given this was a multimillion-dollar project, the fine needs to be meaningful.”
Auckland Council’s Investigations Lead David Pawson says the magnitude of the breaches required serious action.
“We had to send a signal to the building industry that they could not keep operating in this way. A building consent is not just a piece of paper, it is a key part of the process to make sure buildings are constructed correctly, particularly when public use is intended.
“Assurance building work is carried out to the necessary standard is paramount as is public safety a priority for council.”
In 2020 the Guardian Group started a “village green” laneways project to inject life back into the heart of Remuera.
The project included construction of five large pavilion structures for hospitality and retail outlets at 405, 407, 409 and 415 Remuera Road, along with the conversion of a hair salon to toilet block.
The developer engaged York Project Limited owned by Mr Church, to oversee the proposed development including the consenting applications.
Mr Church in turn engaged The Carpentry Company owned by Mr Johannsen and Mr Baker as the main contractor to carry out the construction work.
Knowing the necessary consents were not in place, Mr Church instructed the contractors, who were under the impression the consents were coming, to start building.
In April 2022, council staff notified the Guardian Group the work breached section 40 of the Building Act and all building work was to stop and notices to fix were issued.
Judge Lummis in her judgment concluded Mr Church had 25 years’ experience in the industry, was aware no building consent had been issued for the entire 17 months of the build, that three decisions declining applications for building consent had been received and yet he still directed builders to continue.
The text sent by Mr Church to Mr Johannsen on 23 November 2021 which said,
“Council are still playing silly bastards with this consent. We are pushing on with P3 linings and cladding and not stopping. We will argue in court if we have to. We need to take shit loads of photos and file them and name them and not lose them. Thanks.”
could be fairly described as “brazen” and close to the standard of arrogant defiance.
The Judge went on to say the “builder defendants’ attitude was poor” as they “knowingly continued to carry out the physical building work aware consents were not signed off”; she deemed the builders to be reckless.
Judge Lummis did not accept the claim by the Guardian Group that they were investors rather than developers and described their actions as “careless”.
The illegal building work was carried out over a 17-month period commencing November 2020 until April 2022.
