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
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
"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
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
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
"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
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.