The Old Gym Wanaka

155 Tenby Street
Wanaka, New Zealand
(+64) 03 443 1354
mobile: 021 1877 944
 

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At one stage in the past the local council mistakenly decided that The Old Gym was a backpacker (short-term accommodation which requires higher fire protection standards). This issue has now been conclusively resolved in court with the court judging that the house is not a backpacker, but just a normal house, and we are currently allowed by the court to use the house in the same way as any regular house.

Wanaka Gym History

The Wanaka Gym was set up as a fitness centre in Wanaka, New Zealand in the late 1990s and served as the town’s only gym for a number of years, until in 2000 we decided to convert it into a large house instead of a commercial gym.

2000 - I applied for a building consent to convert the former Wanaka Gym to a house. Queenstown-Lakes District Council, the local council, refuse to issue the building consent without any valid legal reason at all, but simply because they equated a large house with being a backpacker, which is not the case by New Zealand law. If they had understood NZ law and issued my building consent correctly and according to the law, none of the following would have happened. By New Zealand law a backpacker is defined, not by size of the house, but by the length of tenancies. By New Zealand law, up to 40 people can reside in a large house and it is still legally regarded as a house as long as the tenancies are more than 3 months in duration. My house slept an absolute maximum of 24 people, though usually a lot less than this, and as we always had tenants signed up on 3-month tenancies the house was always legally a house and not a backpacker. The QLDC did not understand New Zealand law from the beginning which accounts for the subsequent mistakes they made.

2000 - Six weeks after I closed the Gym, they walked into my house without any notice at all, any correspondence, any checking of tenancy contracts, and literally threw my tenants out onto the street. The reason? They came to the mistaken conclusion that a large house is the same as a backpacker. At the time, we only had four tenants, and they were all signed up on valid 3-month tenancy agreements through a local real estate agent. We were not doing anything wrong at all and the Council had absolutely no grounds for throwing our tenants out or for illegally entering the house without notice. We applied to the Ombudsman to judge on the case. While we were waiting for the result we could not use the house normally and because they refused to issue our building consent we could not divide the large gym spaces into bedrooms and turn the building into a normal house as we wanted to.

2003 - The Ombudsman finally comes to the conclusion that the QLDC was in the wrong and evicted my tenants illegally. They determined that in NZ law, the distinction between a backpacker and a house rests on the length of stay of the occupants. They suggest we apply for compensation for my house being closed and unable to be used normally for three years.

2003 – After the Ombudsman’s report comes out, the QLDC realise that I am about to sue them for three years lost income for a 24 bed house in a ski resort: a large amount of money. They immediately react to try to prevent me doing this by closing my house down again and throwing me out in the street along with my tenants who are signed up on long term valid tenancy agreements. The grounds on which they close the house? They declare the house to be a fire danger because it does not comply with short term visitor accommodation fire standards despite the fact that the Ombudsman has just ruled that my house is a normal house, and despite the fact that we have never had short term tenants or visitor accommodation. They do not win in court. The Judge has had enough of the Council’s lack of evidence and valid grounds or argument after a full day in court and and order the Council to agree to an Undertaking. The Undertaking states that they will issue our building consent immediately. We are allowed back in the house and the QLDC is ordered to issue our building consent for a normal residence. However, in direct contradiction of court orders they continue to refuse to issue it.

2005 – For two long years the QLDC continues, against court orders, to refuse to issue our building consent. This means that by now, since 2000, for five years we have had a large gym without dividing walls or bedrooms and have been unable to have normal tenants or live in any kind of normal situation or use the house normally. In contradiction to the court orders, the QLDC refuse to issue our building consent. They insist that the house is visitor accommodation and refuse to process our consent unless we attach a fire report to it that only short term visitor accommodation premises should need to submit. During this time, they send their relatives into my house posing as tenants to try and spy inside, I have council employees sit in cars outside my house at 11 pm at night and 6 am in the morning trying to find any kind of grounds to close us down. The harassment is extreme. I have been under treatment for stress and depression under the extreme pressure that the council's constant surveillance puts us under. Despite extreme surveillance they do not find any proof at all of short term accommodation because we do not do short term accommodation.

Finally, my lawyer goes against my wishes and puts a commercial fire report in with our residential building consent though there is precedent for any normal house to have this, and no legal requirement for any such thing. He reasons that this is the only way to satisfy them and stop the harassment. The QLDC finally issue our consent, five years late. We begin finally to divide the house up with internal walls according to our own residential building consent. It takes three years to finish the work of completing the house according to our building consent, including voluntarily putting in everything that is needed to meet the higher standards of fire protection for short term visitor accommodation. We should not have needed to do this at all, and it is much more expensive to do this, but our hope is that if we do so, the Council will finally leave us alone.

2008 - I inform the Council that we are almost finished the building work (including voluntarily complying with the higher-level visitor accommodation fire standards) and in another two weeks we will be ready for them to inspect and sign off on the work. Normally the Council should have set a date two weeks into the future to come and inspect our house and we would have had our building consent signed off on and been able to get on with our lives.

Instead, the Council realise that we are about to fully comply with our building consent and that it is their last chance to try to permanently close us down. They walk into the house, again without any notice, close it down, throw out all the tenants, including myself and my family (my elderly mother and my terminally ill father), and declare the house a fire danger. The reason? Because we are about two weeks and 2% short of fully complying with the commercial fire report on our building consent. Don’t forget that that fire report should not ever have been required to be attached to our residential building consent in the first place, and we were voluntarily complying with them, and had no legal requirement to do so at all. Don’t forget that we would have fully complied in any case in just two weeks time.

Later we find other legal cases that show that when there is a discrepancy between the building consent that a house has, and the use of the house, householders must comply with the law first, and their building consents second. In other words, even if a householder is not in compliance with their own building consent, it does not matter as long as they are not breaking the law. In our case, voluntarily putting in commercial fire standards on our residential building consent did not mean that we actually had visitor accommodation – and we had stated many times, including many times in court, that we had no intention of having visitor accommodation.

The District Court Judge completely ignored any of the background, and refused to allow any discussion of the background in court. The Ombudsman’s report was ignored, as was the fact that the QLDC had been in the wrong from the outset and had a clear agenda of trying to close the house down in order to avoid paying compensation for their original mistake in evicting my tenants without cause. They ignored the fact that our intended compliance with visitor accommodation fire standards was voluntary and not legally necessary. They ignored the fact that we had completed 98% of the work and that we had asked the Council to inspect as we were almost finished. The court found me guilty for not having fully complied with the commercial accommodation standards I should never have needed to comply with as we have never been commercial accommodation! This was in contradiction to other NZ cases that show that we did not need to comply with our own building consent because we did not have short term visitor accommodation.

2010 – We apply to the Department of Building and Housing in New Zealand to look at the case and make an official legal Determination on the legal status of our house. The Department of Building and Housing determines that we are NOT commercial accommodation, but just a regular house! The charges and fines from 2008 should have automatically disappeared since we now had clear evidence from the NZ Government that the house is just a regular house with no need to comply with short term visitor accommodation.

2011 – We applied to the Civil Court to make an official legal ruling to say that we could operate our house as a normal residential house. The Civil Court made that legal ruling and we now had irrefutable evidence from the New Zealand Courts that we were legally able to use the house as a normal house. The charges and fines from 2008 should have automatically disappeared since we had not broken the law in our use of our house in any way at all.

2012 - I appealed to the High Court to get the charges and fines from 2008 dismissed. However, appealing court cases in New Zealand is very difficult and it is not just about clear evidence and fact. To be able to get the case reheard in court I had to produce new evidence of some kind that wasn’t introduced in previous court cases. Pending coming up with new evidence I am left still with charges and fines for my house being dangerous as commercial accommodation when we have never had commercial accommodation in the first place, and when the NZ Department of Building and Housing and the Civil Court have both determined my house not to be visitor accommodation!

The Ministry of Justice now starts to aggressively pursue payment of the $60,000 of fines I have. I only work part time. After years of legal bills and harassment by the council and paying a mortgage on a house that we could not use as we could not finishing building it, I have large debts and no savings at all. The Ministry of Justice officials in Queenstown work at close proximity with the local council and with the local council's lawyers – and although it is normal to arrange for delayed payment of fines they refuse any kind of payment arrangement at all in my case, clearly prejudiced by their close proximity with the Council.

The Council suddenly takes me to court on their own initiative. The discovered that three tenants in my house, signed up on long term tenancy agreement, had broken their contracts and moved out before the 3 month period was up. They tried to argue that this constituted short term visitor accommodation. They did not succeed in court. The court decided that a landlord cannot be responsible for tenants who break their contracts, and that this did not constitute any kind of deliberate short term visitor accommodation on my part. This case included, during the entire 15 years conflict with the Council, at no time ever did they succeed in proving that I had a single short term tenant at the property, and at no time did they ever prove that I had short term visitor accommodation.

2013 - I appeal to the Court of Appeal. There is a momentum that gathers in NZ courts where the Judges just say this has been appealed many times and don't look at it properly. Once again, the Judge refuses to look at any of the background before the 2008 case, or the Ombudsman’s decision that the Council was in the wrong, or that the Council made mistakes originally in deciding that my house was a backpacker, or that the Council owe us years of lost income that should be compensated and are simply trying to make me disappear instead of paying that compensation. No court has looked at the background at all.

The Ministry of Justice continues to aggressively pursue payment of the $60,000 fines and continue to refuse any kind of payment arrangement. They have all the documents I have submitted for Legal Aid applications and know very well that I have no ability to pay the fines at all.

I am working overseas and my doctor absolutely forbids me to go to New Zealand if there is any chance of conflict there or being detained by court as it would be disastrous for my health. There is a danger that if I go back and am pursued for court fines I will not be able to leave. So I am then stuck overseas unable to travel to New Zealand.

2014 - I appeal to the Supreme Court. I put in very important new cases that show very clearly that house owners must comply with the Building Act or Code firstly, and only then with their own building consents. In other words, as long as I complied with the Building Act or Code according to the residential use of my house, it was irrelevant as to whether I complied with the commercial fire report that the council forced me to put in when I should never have had it at all.

It is beyond doubt that we did not do anything illegal given our residential use of our house and given that the NZ Govt itself determined the status of my house as normal residential. I have fines for being very slightly short of fully complying with a commercial fire consent I should never legally have needed to comply with. At the time the Council brought criminal charges they had been fully aware that I had been slowly building towards finishing the house according to the consent for three years. There is no reason for their timing in bringing criminal charges two weeks before we would have complied to commercial standards. If they really believed the house to be dangerous how can they explain why they didn’t they shut it down during the three years we were slowly building.

The Judge again simply ignores any background saying that anything before 2008 is irrelevant to the case and the fact that the Council made mistakes originally, owe us compensation and are trying to make me disappear instead of paying it is simply ignored. The Judge does not even look at the important cases I have to put in so they have still not been considered in court.

2014 - I apply for the Governor General Prerogative of Mercy. It is still the case that not one single court has looked at the full issue, or the council's original mistake in illegally throwing out my tenants without cause, and failing to issue my residential building consent without cause.

The Ministry of Justice continues to refuse any kind of payment arrangement, despite constant correspondence all the way through demonstrating to them that by refusing a payment arrangement for the fines they will ensure that the house will go to a mortgagee sale. In other words, it was very clearly their actions that caused the mortgagee sale on my house.

For a while, the caretaker at the property can continue without my presence, but eventually the caretaker moves out and I cannot get another caretaker immediately from overseas. With no caretaker the tenants stop paying rent and invite their friends in which is contrary to the long-term contracts we have in place. Eventually 20-30 squatters move into the house. They advertise on facebook that they are squatting, inviting new squatters to join them, and have even posted their names, work addresses and pictures of them squatting. The Council, who have spent 14 years arguing that my house is dangerous, now that it really is dangerous for the first time, refuse to move the squatters out even when furnished with their names, work addresses and photos and messages proving they are squatting.

The police refuse to go to the house at all after being told not to by the Council. We have proof that the Council has told the police not to act and forward that proof to the Police Complaints Authority but they refuse to investigate and hand the correspondence back to the Council. The Council is very well aware there are squatters in the house because of neighbours complaints but refuse to do anything. We forward the correspondence to the Police Commissioner and the Minister of Justice but they also do not act to stop it.

The squatters, with the full blessing of the police, cause $60,000 of damage to the house meaning my valuation drops by the same amount, and I can no longer renew my mortgage with the squatters in there. The police, even then, with clear proof the squatters are there, clear proof from my lawyer that they are not tenants, and clear proof they have caused tens of thousands of dollars damage, do nothing on the Council's instructions.

2015 - I put in an urgent injunction application to the High Court in Christchurch against the sale of the house. The sale process is not being conducted in any normal manner. The Council has told the real estate agent in charge of the sale that the house is not a normal house and cannot be sold as a normal house, while knowing full well that that is not true. The real estate agent has – on the basis of this false information from the Council - deliberately made the house impossible to sell by telling prospective buyers that the house is not legally allowed to have normal tenants.

2016 - I lose the house. The Council has finally succeeded in taking a 24 bed ski lodge, worth the best part of a million dollars, after 20 years of harassment. So far they have still avoided paying the compensation they owe for illegally evicting my tenants in 2000 and all the costs since.

2021 – I am currently working with a law firm to overturn the charges and fines, and to sue the Council for the entire period, for lost income due to their original evicting my tenants without cause, for not being able to use my house normally, for their deliberate misinformation given to the police and to the real estate agents that resulted in the loss of my house, and for the damage to my reputation and career which is still ongoing.