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Bay of Plenty man Michael Bryant was fined for unconsented building work he did on his Pāpāmoa property. Photo: Supplied / NZME
Michael Bryant, who was fined almost $20,000 for unconsented building work on his Pāpāmoa beachfront property, said he felt "targeted" by the council, which spent more than $91,000 prosecuting him.
The Tauranga City Council building team spotted unconsented work in a real estate ad for Bryant's $2.4m property.
The ad showed photos of a pool area, which included a cabana, and no fencing between the pool and structure.
When council officers checked their records, they saw the cabana had no building consent, and the pool hadn't had final sign-off.
The council regularly checks real estate listings that include swimming pools.
A council statement said the Pool Safety and Compliance team have a "saved search", allowing them to easily identify newly listed properties that have a pool, to check if "pool barriers are compliant prior to a property being sold".
It said this was so buyers could be sure they're not purchasing an unsafe or non-compliant pool.
The council said it doesn't "regularly check" any other aspects of building compliance in this manner.
A guilty plea, a fine, and a battle over name suppression
Following an investigation that included inspections, Bryant pleaded guilty to a representative charge of completing building work without consent, and was fined $19,500 for the building work, 90 percent of which went to the council.
But the prosecution and court battles to ensure his name was made public cost $91,584.50, excluding GST, in legal fees.
This was revealed after Bryant's lawyer, Caitlin Gentleman, made a Local government Official Information and Meetings Act (LGOIMA) request on his behalf.
The LGOIMA response said the council couldn't quantify the cost of the actual investigation.
"No external investigations were undertaken in relation to this matter," it said.
"All investigative work was carried out by council employees. The council does not maintain records of staff time spent on investigations, so these costs cannot be quantified."
In a statement to NZME, the council said compliance investigators do not on-charge their time as a general rule and "as such we do not have a specific need to record all time spent completing investigations".
Bryant said he takes issue with the money spent on the prosecution, given the fine was a fraction of the cost of the prosecution, and that the council battled to make sure his name was made public.
While the sentencing took place in December last year, the proceedings continued. Bryant applied for name suppression after a request from media to access the sentencing notes.
The shed. Photo: Supplied / NZME
The council opposed his application, and a further hearing was held to determine the issue, which Bryant lost.
Bryant then appealed the decision.
In the High Court, Gentleman argued that while Bryant had been "careless" in undertaking the unconsented work, he had been cooperative, took steps to remediate it and was remorseful.
However, Justice David Johnstone did not feel publication would cause Bryant extreme hardship.
The judge said Bryant conceded he made a "rash, commercially motivated, decision to proceed with unconsented private building work, despite decades [of experience] which are likely to have confirmed his awareness of regulatory requirements".
The judge agreed with the lawyer acting for Tauranga City Council, Adam Hopkinson, that there was "legitimate public interest in awareness of the regulatory compliance failings".
But Bryant maintained the overall prosecution was "overcooked".
He said the court process was "horrific" and claimed "every second property along that beach has stuff that doesn't comply".
Bryant accepted "that doesn't make it right", and he shouldn't have undertaken unconsented work, but felt it did not warrant such a costly prosecution.
"It's just taken a whole lot of nonsense and blown it completely out of proportion... when you made a mistake and you own it, you've got to give some sort of half points for putting your hand up," he said.
He characterised the work as a "shed" and a "flash lean-to with some tiles".
The "shed" was a garage with a bunk room, a bathroom, and was also used to store items.
Bryant claimed it was only ever meant as a temporary structure.
Bay of Plenty man Michael Bryant was fined for unconsented building work he did on his Pāpāmoa property. Photo: Supplied / NZME
The summary of facts detailed the unconsented building work included the garage, the cabana, and a separate structure that housed a temporary sauna and had an outdoor shower.
The summary, which Bryant accepted in his entry of a guilty plea, described the cabana as having a "kitchen, pizza oven, dining area and lounge area".
But Bryant said it was "essentially a fancy lean-to that would keep the rain off when having a BBQ".
"It had a nice kitchen island with a BBQ top on it, and a sink and a dishwasher."
He believed it was comparable to properties with that kind of set-up underneath louvres.
"If you had a day, I could go print you off 4000 properties that have that," he offered.
When circumstances changed in his relationship, and the home needed to be sold, the property was put on the market.
Bryant said he was honest about the work when the council came knocking after seeing the advertisement, and felt he should have been given more credit given his honesty and cooperation, and that it was his private home.
He compared his own $19,500 fine to that given to Venture Developments Ltd which, in 2018, was fined $54,000 for building 28 residential units at Papamoa Village Park, without the necessary building consents.
Venture sold each of the buildings to members of the public for an average price of about $125,000.
"And I get a $20,000 fine, and a building conviction personally, for a shed," Bryant said.
However, Bryant still accepted that, at the end of the day, the work didn't have the necessary consents.
"I admit to not investigating it properly, you know, but I said that at the start. So I said, 'well, hey, look, guys, in light of this, I'll wipe it all down'. So I did. I took it all down."
He said he remained in contact with the council about issues he was having accessing the property to do remedial work within their timeframe, given his relationship breakdown, which caused complications in accessing the home.
"They knew the situation. I was almost in tears explaining it to the council guys."
When it came to sentencing, the council's lawyer informed the judge that the council was happy with the remedial work done by Bryant, noting some was still yet to be done.
Bryant was given a discount for his remorse, cooperation with the council, and background issues, and was also given a discount for his guilty plea.
He said he spent about $200,000 removing the unconsented buildings.
In a statement, Steve Pearce, head of building services at Tauranga City Council, accepted prosecutions can be a "reasonably significant cost to the council".
He said in Bryant's case, charging documents were filed in December 2023, and a guilty plea was entered in April 2024.
There were disputed facts, which prolonged matters, before Bryant was sentenced in December 2024.
"Since that time, Bryant has sought name suppression in the District Court, where it was refused," he said.
"He then appealed that decision to the High Court, where it was again refused, and most recently he commenced a further appeal to the Court of Appeal; however, that has since been withdrawn.
"Clearly, these attempts at name suppression have increased the cost of these proceedings despite the early admission of guilt."
He said if the council does not prosecute serious and repeated cases of unlawful building work, then it is "likely to encourage non-compliance with building law and regulations, falling standards in the building industry and issues for the wider community".
In terms of Bryant's case, he said that there were some details and background that remained suppressed and the council was limited in what it could say.
"However, the council can confirm that this was not the first time the council has investigated Bryant in respect of unconsented building work," he said.
The summary of facts outlined a previous occasion where, at another Pāpāmoa property owned by Bryant, a large shed was under construction without a building consent.
After discussions, Bryant removed the framing and applied for a certificate of acceptance for the poured concrete slab.
Pearce said the council rejected the suggestion that it had unfairly "targeted" Bryant or that the prosecution was "overcooked".
It had obtained independent legal advice to determine whether the test for prosecution was met in accordance with the Solicitor-General's guidelines.
"Bryant, through his guilty plea, has admitted the offending. The sentencing judge accepted that Bryant's involvement in the building industry meant he knew there was a need to get consents and that his failure to do so was deliberate," Pearce said.
The court's starting point, of a $30,000 fine, reflected "the seriousness of the offending and Bryant's high culpability".
- This story originally appeared in the New Zealand Herald
