A man who built a four-bedroom house for his family of eight children without a building consent has failed in an attempt to be discharged without conviction on the basis that the council made more money out of him without permission to build and his family were healthier.
Samuel Jacob Maria Cornell Loeman, was convicted of breaching section 40(1) of the Building Act 2004 by carrying out building work with no consent and fined $1335.55, and ordered to pay solicitors' costs of $664.45 and court costs of $132.89 in the Wanganui District Court by Judge Dugald Matheson. Ninety per cent of the fine is to be paid to the council.
In November 2010, Loeman's wife called the Wanganui District Council to inquire about a rates rebate for their property on Matatara Rd. But the council had no record of a building consent being granted for the property.
Loeman met the council later that month and confirmed he had built a house there in the past four years, and he was told of the seriousness of the matter.
It was proposed he apply for a certificate of acceptance for the dwelling so the council could inspect what had been built and in December he was issued a notice to fix to ensure he kept on track with gaining compliance.
Judge Matheson said Loeman was married with eight children, and relied on an income of $516 a week from a benefit. He was living in substandard accommodation and unsavoury conditions, which was causing his family to suffer illnesses related to dampness.
He was desperate to house his family safely and determined to build on a bit of land he had, Judge Matheson said.
Without experience, he built a four-bedroom house himself.
The property has a government valuation of $134,000 and is freehold. The Loemans are paying $4452 in certificate of acceptance fees.
Loeman's sentencing date was adjourned three times to allow him to do the work required to gain compliance certificates.
In court, Loeman asked Judge Matheson for a discharge without conviction. His reasons were that there were no victims involved in the case, and his family's health had greatly improved. The council was better off because it was able to charge him more fees than he would have paid if he'd had permission to build.
He had worked hard all his life and, in the circumstances, he did what was best for his family and would be disappointed if he was given an additional burden.
A criminal conviction was out of character and out of proportion to the offence, and he had no previous convictions.
The matter had been settled with the council and it had been a long and hard process for his family, and they wanted to get on with their life, he said.
He was a fencing contractor, but hurt his back and was unable to work full-time. He was attempting to set up a market gardening business, but their only income at the moment was family assistance.
Judge Matheson said Loeman pleaded guilty to building the home without consent and went about rectifying the matter after the authorities contacted him.
The judge had no doubt he wouldn't put his family at risk, but by not going through the proper channels he opened them up to the possibility for things to go wrong.
The laws were to ensure buildings were made to a standard for those who used them.
Judge Matheson said although Loeman now had a safe building, the issue was ensuring the right things were done at the right time to prevent disasters and save inhabitants from jeopardy.
For their part, the council's main concern was deterrence. It was worried that if Loeman got a slap on the wrist others would build homes, thinking they could get away with it.
However, Judge Matheson said in this case Loeman was not into doing that, and those who were should be aware there was a $100,000 maximum fine for those who commit this offence, and a further $100,000 maximum fine for those who continue to breach.
He said in Loeman's case, it was a lack of setting priorities, the steps which led him there, as it was inevitable they would be talking to the council.
Judge Matheson said he took into consideration that the Loemans had little financial resource, but had a small surplus every week and Loeman was hopeful of getting work.
Loeman's behaviour, once he was approached about the matter, was to comply, and he did not have the means to pay large fines.
The judge was not convinced that there was cause to grant a discharge without conviction. There was a deliberate breach of the code and it needed to be treated seriously, he said.
Judge Matheson said he understood Loeman was in a frustrating financial position and was concerned for the financial ramifications for him. He gave him a discount for his guilty plea.
Although the judge had to impose a penalty in line with other cases, he said his sentence allowed for the idiosyncrasies of the case.