Two weeks later, a septic tank had been built, and later again, the house was being lived in, with the officer noting unmade beds, water on the shower door, clothes throughout the house, food on the kitchen bench, and photos of people on the fridge door and in the bedroom.
The couple appeared for sentencing in the Hamilton District Court this week on a charge of carrying out building work without a building consent, which carries a maximum fine of $200,000, and a further $10,000 fine for each day the offence continues.
Through their counsel, Charlotte Muggeridge, the couple told Judge Tini Clark that the council should have engaged with them more because they were unaware that the work they were doing was non-compliant.
But Judge Clark told them it was their responsibility to ensure they complied with the law and said they would now have to face the financial consequences.
The court heard that the inspector first visited the Maungatawhiri Rd, Te Mata, property on February 7, 2024, after being tipped off about potential unconsented building work.
While there, an unidentified man told the inspector he was building two sleepouts that were going to be less than 30sqm each and 5m apart from each other.
The inspector was satisfied that they met the exemption guidelines under the Building Act.
On July 6, the same inspector happened to be driving past and noticed more work had been carried out, including the foundations, walls, roof, and plumbing and drainage work.
When he returned to the property on July 24, the couple weren’t home, but he noticed that a septic tank had also been installed.
It did not have building consent.
In September, the inspector spent a month trying to organise a suitable time to meet Stephen Frew to carry out an inspection.
The inspector and another council officer visited the property on October 8 and finally met with Frew, who agreed the council could take photos, confirmed they had not applied for a building consent, and said the house was intended for his son, daughter-in-law, and young child.
He authorised the work but refused to give the builder’s name, said he believed it had been built to the Building Code, confirmed no geotechnical advice had been sought, and said he had previously spent $30,000 on an application to subdivide the land that was eventually declined by the council.
Council staff then walked into the house and discovered it was being lived in.
‘Mistaken but honest belief’
Muggeridge told Judge Clark that when Stephen Frew was interviewed on site by council staff, he told them he did not know that what he was doing was not compliant under the Building Act.
She also said just because they had applied for a resource consent to subdivide the property, there was no connection between that and carrying out building work.
“I thought there was a connection, actually,” the judge replied.
“If I step away and think ‘They were wanting to subdivide, they got a knock-back, and then two sleepouts become one house’. That’s the way that I looked at it.
“You will appreciate that there’s nothing in your submissions that suggests to me that there is an acceptance that your clients were not aware?
“What are you saying, that they were utterly unaware, which I have to say I would find surprising, or that they honestly but mistakenly believed something?” the judge asked.
Muggeridge said the case was being put forward as an honest mistaken belief because the works for the pods were permitted.
Tracey Frew leaves the Hamilton District Court on Wednesday. Photo / Belinda Feek
Then further work was undertaken a short time later, and that’s when the non-compliance occurred.
The judge said it appeared there was a “deliberate joining” of the two pods.
“I find it hard to get to the point where I think that was done with some mistaken but honest belief,” she said, but Muggeridge maintained her position on that.
She added that the council could have issued a Notice to Fix, which would have specified the works that were required and how to remedy them.
In May this year, the Frews applied for consent for the septic system only.
When asked by the judge for the council’s position, prosecutor Christine Pidduck said the defence argument that the couple held a mistaken belief had not been part of their discussions leading up to sentencing.
She instead pointed to Stephen Frew’s interview in which he stated he believed the property had been built to the building code.
“That is not the same as ‘I did not understand that a building consent was required for the works’.”
Stephen Frew. Photo / Belinda Feek
Pidduck said the council also had concerns about an unconsented house being sold to another buyer who was oblivious to its illegal status.
Judge Clark then told counsel that, given she was not keen to adjourn the case, she could deal with the dispute by setting a slightly higher starting point, which was agreed.
‘Well-meaning but misguided’
In sentencing the couple, Judge Clark said she couldn’t resolve all of the arguments and didn’t have time to study the intricacies of the Building Act, but she appreciated the competing positions.
Pidduck sought a starting point of a $15,000 fine for each defendant, while Muggeridge sought $5000 each.
Judge Clark said her reading of the summary of facts was that this case was an “intentional joining” of the two pods.
“Both defendants should have known that they needed to have taken additional steps to ensure compliance under the Resource Management Act.
“I cannot see how there has been an honest misunderstanding here.
“Being exempt for two pods… is a far cry from then thinking honestly, but mistakenly, join the pods together to make a house and there will be no repercussions, and there will be no further inquiries of the council as to what the requirements might be.
“I agree it is … the defendants who had the obligation to ensure what they were doing was right.”
The judge said the couple’s reason for building a house for their son was a noble cause but it would now have financial consequences.
However, she assessed their culpability as moderate, labelling their actions as “well-meaning but misguided behaviour”.
Judge Clark convicted and fined the couple a total of $13,500.
The maximum penalty for the charge is a $200,000 fine.
Belinda Feek is an Open Justice reporter based in Waikato. She has worked at NZME for 11 years and has been a journalist for 22.