Illegal additions were made to a house in Ponsonby, Auckland. Photo / Auckland Council
A Ponsonby couple prosecuted over unconsented additions to their home have been discharged without conviction after a judge found they had been misled by the professional building company they hired.
Auckland Council brought two Building Act charges against the home owners after a 49.5sq m veranda and two-storey, 18.8sq m accessory building were added to their property without the required building consents.
The couple pleaded guilty but sought a discharge without conviction.
Auckland District Court Judge Sheena Tepania found the overall gravity of their offending was low and placed significant weight on the role of their building company, Building Brothers Construction Ltd, or BBCL.
The judge said BBCL was a professional construction company and it was reasonable for the home owners to expect the company would understand the rules governing building work and the need to obtain the appropriate consents.
She accepted that the offending was a product of the couple having been misled by BBCL.
The couple’s lawyer described them as customers who had become defendants after being “misled by the professional builder they had entrusted with renovating their home”.
The home owners had since taken the necessary steps for the work to be remediated and brought into compliance.
Auckland Council argued the unconsented additions had the potential to harm the heritage values and special character of the area.
Council lawyer Kate Rogers also submitted that one of the home owners was a newly qualified builder and had carried out some of the building work as an apprentice and therefore had some industry knowledge.
She argued the couple could not completely distance themselves from responsibility because they had previously sought consent for major renovations to the property.
But Judge Tepania found the suggestion that the home owner’s experience as an apprentice should increase his culpability was “somewhat misplaced”.
The home owner’s experience as a building apprentice did not change the fact that the couple were customers who had entrusted the work to a professional construction company, Judge Tepania said.
The potential consequences of a conviction on someone who had subsequently qualified as a builder were another factor in the court’s decision.
“I acknowledge that the stigma that attaches to a conviction is an ordinary and expected consequence; however, given the industry in which [he] works, it is likely that a conviction will directly impact his ability to obtain building work.”
Companies Office records show Building Brothers Construction Ltd went into liquidation in January.
The company’s liquidator confirmed the home owners had been clients of BBCL and said the company had previously taken them to the Building Disputes Tribunal for mediation over unpaid money. That case was unsuccessful.
Asked why no charges had been laid against the building company, Auckland Council said all enforcement options had been considered at the time charging decisions were made.
“The council acknowledges the court’s finding that the defendants were misled by the building company. However, the reasons for why the building company was not prosecuted is subject to legal professional privilege,” the council said.
Earlier in court, the council had sought a starting point for fines of between $10,000 and $15,000 for each defendant.
But the judge decided they should only pay $3000 each to contribute to the council’s costs of the proceedings.
She discharged them without conviction but ordered each to pay a further $152 in court costs.
The home owners declined to discuss their personal circumstances when approached, saying the case was a sensitive matter for their family.
Paul Cowling, Auckland Council’s team leader for investigations, said no legal action against the builder was now planned.
“Based on the information recorded in the file, the decision was that prosecution did not meet the public interest test.
“The circumstances surrounding the building work were not straightforward. The veranda was constructed by a subcontractor engaged by the building company, while the work on the extension was completed by another individual who has not been identified,” Cowling said.
“The work was completed more than 12 months ago. Council is therefore no longer able to pursue prosecution in relation to that work.”
Editor’s note: While there is no active name suppression for the discharged home owners, the Herald has decided not to publicise their names in relation to this case.
Anne Gibson has been the Herald’s property editor for 26 years, written books and covered property extensively here and overseas. Stay ahead with the latest market moves, corporate updates, and economic insights by subscribing to our Business newsletter – your essential weekly round-up of all the business news you need.