A home owner has told a court that he was in no reasonable position to stop his dad from carrying out extensive and unconsented renovations to an 1860s heritage building.

That’s because while Wayne Lavatai owned the 95sq m protected cottage in Grey Lynn on constructive trust, it was really his father, Francis Sheppard, who it belonged to.

“I would never say no to my father on something like this, which is his house, his renovations, his business, and not my decisions to make for or to try to stop him,” Lavatai told the Auckland District Court earlier this year.

Both Lavatai and Sheppard were charged by Auckland Council, the former for a breach of building consent, and the latter for failing to get consent when the council came knocking.

Lavatai was ultimately discharged without conviction, while Sheppard was ordered to pay a $25,000 fine.

According to the recently released judgment, Sheppard built new walls and parts of the roof, removed structural, bracing walls and framing, as well as completely replacing the foundation and subfloor of the historic cottage.

The property itself is on Sussex St in Grey Lynn, Auckland, which is a designated “special character area” as per the council’s unitary plan. That’s because it contains substantial areas of homes built in the late 19th and early 20th centuries.

In order to preserve the unique characteristics of the houses in protected areas, resource consent is required for most external alterations and additions to buildings.

However, for just over a year starting in 2021, Sheppard undertook significant work at the property without first getting consent.

Sussex St in Grey Lynn contains homes built by some of the earliest European settlers to New Zealand. Photo / Auckland Libraries Heritage Collections, circa 1910

A complaint was made to the council in 2022 that unconsented building was taking place at the cottage, and the council advised Lavatai, who is the registered owner of the property, to stop until further notice.

In May, Lavatai was issued a notice to fix the work that had already been done, which he ignored, and his father continued working at the property for another 10 months.

Despite a report that found the works were generally consistent with the heritage values of the property, and the fact the council has since issued consent, Sheppard and Lavatai were taken to court.

‘…he is stubborn and wanted to keep going…’

In an affidavit to the court, Lavatai said it wasn’t his place to try and stop his father from doing the work.

“... I did warn Dad a few times I think, but he is stubborn and wanted to keep going, and just get the place done and liveable,” he said.

Lavatai said he didn’t check in on the project and just let “Dad do his thing”.

“I didn’t feel responsible for what was going on, or trying to keep on top of it, or that I could possibly take charge or overrule Dad on it.”

A certificate of approval has been obtained from the council for most of the works, and a retrospective application for resource consent was also underway.

Lavatai’s lawyer, Lara Burkhardt, said he had no real ability to comply with the council abatement notices and that they should have been issued to Sheppard instead, as it knew he was the one doing the work.

She said that Lavatai was “between a rock and a hard place” and couldn’t have realistically compelled his father to cease doing the work.

As for the work itself, Burkhardt said the extension had no impact on the character of the dwelling, the chimney that was removed had already been partially removed by a previous owner and that the property was issued a COA from the council retrospectively without issue.

Burkhardt said that ultimately the state of the property was improved, and that the result was a safe, warm home.

Sheppard told the court that for Samoans, family was paramount.

“Following fa’a Samoa (the Samoan way), family (aiga) comes first and utmost respect (fa’aaloalo) – including obedience, must be given to your elders,“ he said.

“But it is also about looking after your family, including your parents. That is how we show tautua (service), and lofa (love). If your family needs something, you do it, without question or argument.”

Prosecutor Sophie Vreeburg told the court that Sheppard had carried out non-compliant building works for a relatively significant renovation project.

She said that the project took over a year and that the defendants demonstrated a cavalier attitude towards their compliance obligations.

Vreeburg said that while Lavatai didn’t carry out any of the works, he was ultimately responsible, as the registered owner, to ensure that any work complied with consent.

The property under construction in 2022. Photo / Google Maps

‘Convenience is not an excuse…’

In her recently released ruling, Judge Melinda Dickey found Lavatai’s culpability was relatively low and ordered him to pay the council’s costs totalling $15,000, which he had offered to pay proactively.

However, overall, Judge Dickey said that the offending, particularly by Sheppard, was serious.

“Convenience is not an excuse for not complying with legislative requirements,” she said.

Judge Dickey said the council had a range of tools available for builders and renovators to utilise to make sure they were complying with their consent obligations.

The property has since been granted a COA by the council for the building work. Photo / Supplied

Though overall, she considered the effect of the works on the heritage qualities of the property was also low.

Sheppard told NZME he accepted full responsibility for the work he did without consent and was pleased the court recognised his son had nothing to do with it, other than owning the property on constructive trust.

“In respect of heritage values, of the house, I was very conscious of the need to protect them – the character of the house and its fit in the historic streetscape is part of its value,” he said.

Auckland Council’s heritage manager Noel Reardon, said the council, and its predecessor councils, had protected notable historic neighbourhoods since the 1990s.

“Since then, most homeowners in special character areas do stick to the rules and apply for resource consent for alterations to the exterior of their houses before they start work,” he said.

“In the case of this property, the offenders had not only carried out works that required a resource consent, but they had also conducted extensive building work throughout the property which significantly affected the structure of the building.

“This work would have required building consent to ensure it was Building Code-compliant for the owners and future owners of the property.” 

Jeremy Wilkinson is an Open Justice reporter based in Manawatū, covering courts and justice issues with an interest in tribunals. He has been a journalist for nearly a decade and has worked for NZME since 2022.