Auckland Council went too far when it raided the home of a local politician searching for evidence to prosecute him for work on his property, a judge has found.
An investigator, three council officers, two surveyors and a police constable executed a search warrant at the home of Waiheke Local Board member Paul Walden in July last year.
Walden, who was at the council offices on the island when his wife Jo was served with the warrant, has been charged with four offences relating to building work and earthworks on the property.
The search went beyond its authorising purpose and so went too far, said Judge David Kirkpatrick in a decision after a hearing to quash the evidence obtained in the search.
The judge refused an application to dismiss the charges.
• Electric Island: Plan to transform Waiheke Island into world's first electric vehicle-only revealed
• Woman attacked on Waiheke Island: 'I went head first into the concrete'
• Trouble in paradise: Family assaulted on way to Waiheke beach
• US authorities catch Waiheke Island man exploiting missing children online
Walden said he was pleased with the judge's ruling on the search warrant and would continue to defend the four charges, which relate to unconsented building work, including installing insulation, sanitary fixtures and associated plumbing and drainage, and changing the use of a building from storage/garage to residential use.
He has also been charged with unconsented earthworks and working within the drip line of native vegetation.
Walden said the earthworks were a response to recurring stormwater from the road above his property, which flooded a barn on his property. Calls to council and Auckland Transport to address the issue did not get a response, said the former Local Board chairman.
The warrant authorised a search of Walden's property at View Rd to seize and/or photograph evidence to determine if multiple buildings were present and the size and location of buildings.
In a written affidavit for the hearing, Jo Walden said she was at home with her five children and a nephew when she got out of the shower to see a group of men wearing hi-viz vests around the glass doors of the barn.
She said she was still covered in a towel when one of the men said they had a search warrant and that was why the police were there. She contacted her husband and told him to come home straight away.
"I felt really violated and intimidated by the search warrant process," said Jo Walden, saying Paul told her he had seen some of the men in the parking lot at the council offices when he arrived at work in the morning.
"This was particularly upsetting for me because it meant that the group knew when they arrived that Paul would not be at home," she said.
Judge Fitzpatrick said the application for the search warrant related to the suspected contraventions of the Resource Management Act over the earthworks, saying there appeared to be nothing in the application to search the buildings.
"I am driven to conclude that the warrant should not have been issued to authorise a search inside the buildings as the suspected offending under the Resource Management Act did not involve anything to do with the buildings.
"The issue is whether the searchers should have entered the building at all ... the answer must be the search went beyond its authorising purpose and so went too far," the judge said.
Council regulatory compliance manager Steve Pearce said the organisation has only recently received the judgment but is considering an appeal.
He said the decision does not raise any concerns with the way council officers executed the search warrant at the Walden property.
"Council officers suspected a building on the Walden property was being used as a dwelling without the necessary resource consent and in contravention of the District Plan.
"Council officers expected that this also involved unconsented building work in contravention of the Building Act 2004.:
He said council is required under the Resource Management Act to obtain a search warrant from the District Court before entering a dwelling to investigate its use, saying council followed that process and obtained a warrant to enable it to enter a building on the Walden property.
"In its decision the court found there was a procedural irregularity in the search warrant application, and therefore the search warrant executed by council should not have been issued by the District Court," Pearce said.
Former Waitemata and Gulf councillor Mike Lee has called the council's action a "disproportionate use of power" and a traumatic experience for the Walden family.
Lee, who lives on Waiheke Island, said Walden had provided great leadership in his time on the Local Board, particularly advancing marine protection.