The unprecedented sentence handed down to property developer Augustine Lau in the Auckland District Court is a strong warning to others who would consider this type of offending.
Mr Lau was sentenced to two years' imprisonment for breaches of the Resource Management Act (RMA) and Companies Act across a number of properties. This is the largest jail term ever handed down under the RMA – the largest previously was six months.
Councillor Linda Cooper, chair of the council’s Regulatory Committee, says, “This strong decision of the court shows that Aucklanders don’t have to put up with illegal antics from dubious developers."
“It sends a clear message that these actions, which affect things like water quality and public health, are not acceptable and will not be tolerated.
“While the council encourages development to meet the current housing shortage, the rules are there for a reason. Our officers won’t hesitate to take action if you’re doing it illegally, at the expense of the environment,” she says.
In total, Mr Lau faced 17 charges under the RMA and ten charges under the Building Act, in addition to charges under the Companies Act, for undertaking illegal development of six properties around the Auckland region.
Council hopes sentence will stop others offending
Auckland Council’s Manager Regulatory Compliance Steve Pearce says that the council welcomes the outcome as it will be a significant deterrent for other property developers tempted to follow Mr Lau’s offending.
“This has been a difficult and significant case that the council has been working on for a number of years.
“We are pleased to have reached this point and received such a significant penalty from the court.
“We generally take a graduated approach to enforcement and will help people to comply where we can, either by giving advice and warnings first or giving them the opportunity to apply for any consents and permits that might be necessary.
“However, in cases such as this, where there are significant adverse effects and an offender who continually ignores the council’s requests, we will use all of the enforcement tools available to us, including pursuing offenders through the courts.
“It is relatively uncommon for us to end up in the court, and even rarer for us to seek a sentence of imprisonment; however, this case exemplifies why we have to take a hard line with serial offenders who completely disregard the environment and the effects of their wrongdoing,” says Mr Pearce.
Judge says non-compliance is the worst in history
Commenting on the seriousness of the offending, Judge Thompson said, “In terms of the history of non-compliance with warnings by the regulator I have to say that Mr Lau’s position is the worst I have known of. He has completely ignored risks identified by others.”
The judge rejected any suggestion that the offending was impulsive; rather it was calculated and long term.
“The offences he has committed in these instances were committed for financial gain. They were premeditated, he knew exactly what he was setting out to do and he knew that what he was doing was unlawful. He continued to do it nevertheless,” he said.
Judge Thompson noted that Mr Lau received so many warnings from the Court and the council that it is impossible to accept he was not aware that he was breaking the law.
“There can be no doubt that in every set of these offences of the six sites in question Mr Lau was the prime mover. Equally there can be no doubt that he knew full well that he was breaching the law and what he did on the properties, his actions were profit-driven and contemptuous of the law and the effects that he was imposing on the environment, the tenants of the properties and the neighbours of those properties,” he said.
“There was flagrant and contemptuous ignoring of attempts by the council to stop the activities. There has been considerable cash cost to the community. It is very difficult I must add to conceive of a more serious series of offences. Against this legislation considered as a cumulative whole, it is very difficult to choose any one offence or even any property as being the most serious or a lead offence.”
The judge also noted that Mr Lau has on many occasions sought to defer and deflect proceedings, pleading many forms of illnesses.
Mr Lau is bankrupt, so is not in a position to pay any fines.
An overview of Mr Lau’s offending
Mr Lau managed the development of a number of properties around the Auckland region. These charges relate to six of these properties – the three worst in Flat Bush, Pāremoremo and Ōtāhuhu.
The property in Flat Bush was allowed a single dwelling under the relevant District Plan. However, the existing home was converted into two dwellings, while two former classrooms and a relocated weatherboard house were also moved onto the property. As a result, there were a total of eight dwellings when the rules allowed for one.
Four of these dwellings were connected to the existing sewerage disposal system which was overloaded as a result. The other four were connected to a newly constructed system which was completely inadequate and discharged raw sewage to a slope above a stream, which was contaminated by the discharge. This discharge area was immediately next to the houses and was unsecured, creating health risks and unpleasant odours for the tenants of these buildings.
Enforcement orders issued by the Court were completely ignored by Mr Lau. As a result, the council had to intervene and remedy matters at its own cost.
A property in Pāremoremo, with a single house and a garage, was also permitted to have one dwelling and one minor dwelling. Mr Lau took over management of the property, converted the original house into three dwellings, the garage into another dwelling, and relocated a weatherboard house onto the property which was made into five dwellings – a total of nine.
Mr Lau contested an abatement notice related to this, and then ignored it. Again, almost raw sewage from a constructed system was discharged onto land where it could have entered a stream, and all related enforcement proceedings were ignored.
At another property in Ōtāhuhu, which was managed by Mr Lau, 900 cubic metres or more of earthworks were undertaken without preparation or compaction and without consent. This created an unstable and unsafe situation.
The fill material used included rubbish and debris, and the top layer contained asbestos fibre and fines, and fragments of asbestos-containing material. Again, interim enforcement orders were issued but no compliance resulted. Instead a pile of material, including more asbestos, was flattened into the site. Enforcement orders in relation to this were also ignored.
