Wanaka Gym Ltd appeal dismissed

The High Court dismissal of an appeal by the owner of a Wanaka gymnasium which was turned into accommodation could be the final chapter in a 12-year legal battle with the Queenstown Lakes District Council.

Fiona Caroline Graham was convicted and fined on five charges and her company, Wanaka Gym Ltd, was convicted and fined on nine charges, totalling $64,000, after a defended hearing in November and December 2009.

The criminal prosecution was brought by council solicitors in the Queenstown District Court from December 2008 and alleged Building Act violations during the conversion of the gym at 155 Tenby St into cheap residential accommodation for visitors, the original building consent being lodged in 2000.

Graham and Wanaka Gym appealed the convictions and sentences. However, in her decision on February 27, Justice Christine French dismissed the appeals, saying Graham "has no remorse", and criticised her for her "stubborn refusal to accept that the safety of persons sleeping in the building was compromised".

Graham and her company tried to appeal Justice French's decision to the Court of Appeal.

Justice Graham Lang said Graham saw the proposed appeal "as a means of relitigating an extremely wide variety of issues" in his judgement delivered on October 12 after a hearing on October 8.

"She is convinced that she has been persecuted by the council over a very long period," Justice Lang said.

"She also believes that the council instigated the criminal prosecutions as a convenient means of concealing grave errors that it made during the building consent process. She considers that the prosecutions form part of a much wider plan by the council to force her out of business.

"Notwithstanding the force with which Dr Graham delivered her submissions, however, she did not succeed in formulating a question of law justifying leave to the appeal to the Court of Appeal."

Graham's counsel, David More, of Dunedin, questioned six of the charges on the grounds the council had wrongly classified the use to which 155 Tenby St was being put when conditions were imposed.

The defence said the council should have imposed fire safety standards appropriate for a building used as a "single household unit", which Graham always maintained was the living arrangement of the occupants.

Instead, the council imposed conditions as if 155 Tenby St was visitor accommodation, which were far stricter than could be justified given the use of the building, so the council imposed the conditions unlawfully, the defence said.

However, Justice Lang said in his decision it could be argued the council never classified the building as a single household unit.

"Rather, it accepted as appropriate the fire safety standards that the company's own expert proposed," he said.

He said the appellants hoped the Court of Appeal would reach a different verdict applying the same test and based on the same facts.

The appeal attempt did not meet the requirement of raising any issue of public or general importance.

The proposal was also relevant to only six of the 14 charges against Graham and Wanaka Gym and convictions on the remaining charges would remain regardless, he said.

Mr More told the Otago Daily Times yesterday the Summary Proceedings Act said if the High Court refused leave to appeal to the Court of Appeal, as it had in this case, an appellant may apply directly to the Court of Appeal for special leave to appeal.