The council opposed the discharge application. Its lawyer John Kang said the defendants were both experienced professionals who knew, or ought to have known, about the requirements for building consents and resource consents before constructing an unconsented minor dwelling.
Yu is a licensed real estate agent who should have had a working knowledge of residential properties and consenting requirements.
Liu works as an independent labourer and was previously employed by a professional building company, Kang said.
Although Liu claimed ignorance about consent requirements, his background would afford him better knowledge of these requirements compared with the general public, Kang argued.
A certificate of acceptance had been issued but the minor dwelling remained non-compliant with the Resource Management Act, Kang said.
He cited a fine starting point in the region of $20,000 for the Building Act and Resource Management Act breaches.
Last January, Auckland Council received a complaint about unconsented building work undertaken at the Marsden Ave property.
A compliance officer visited and saw a dwelling at the rear of the property, which was under construction and was 36sq m.
At least five plumbing fixtures had been installed. The dwelling was located 1.2m from the southern boundary of the site.
No consents had been sought and the dwelling was illegal under the Resource Management Act due to excess site coverage. Building coverage was 54% when the maximum was 35%.
Liu worked on the site for approximately one month, completing construction work. No licensed building practitioners were supervising the works building the foundation, subfloor, bearers, joists, roof trusses and framing of the secondary dwelling.
But the judge decided not to convict the agent or his builder.
Of particular concern to Yu was his job selling real estate in Auckland.
“A conviction will affect Mr Yu’s ability to hold a real estate salesperson licence, will affect his current employment, may affect any future career in the real estate industry or banking industry,” the judge wrote.
“Loss of income will cause significant hardship to the defendant, given his current financial responsibilities. Mr Yu is remorseful, pleaded guilty at an early stage, is otherwise of exemplary character and is unlikely to reoffend,” she said.
David Young noted Yu had taken significant steps at considerable cost to remedy the situation and a Certificate of Acceptance has been obtained.
The judge had copies of his employee agreement and expressed concerns that a conviction may trigger a breach of his employment contract, with him being unable to be covered by the professional indemnity insurance policy, resulting in him being fired.
Mt Eden, where the house with the illegal building works is.
It was accepted by the parties that the primary intention of the unconsented minor dwelling was to house Yu’s elderly mother.
No resource consent was sought or obtained for the work and the builder is not a licensed building practitioner, the decision said.
The council had now approved the work after Yu applied for retrospective consent.
Yu told the Herald today he lived in the main house as his family home with his mother in the minor dwelling.
He said he had not received a copy of the December 23 decision but all the building had been declared legal.
He had immigrated here from Beijing 20 years ago and worked hard in this country, he said.
He had built the minor dwelling for his elderly mother, who had major surgery in Auckland Hospital.
“I treat New Zealand as my home. I don’t want to be a bad person. I made a mistake and now I fix it,” Yu told the Herald today.
He had no time to apply for the minor dwelling. His mother was being discharged from the hospital and he estimated it could take a year to be granted consents for the minor dwelling, he said.
Yu had told his manager about the prosecution but he expressed delight today about the discharge.
“This is good news to me. My purpose was to look after my older mum and she is healthy and happy to live close to me,” Yu said.
Anne Gibson has been the Herald‘s property editor for 25 years, written books and covered property extensively here and overseas.
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