Repeat offender contractor fined $34,000 for illegal Albany Heights work

Albany Heights where the offending occurred: one neighbour complained about 100 native trees had been affected while another complained of a huge clay slip. Photo / Google Maps

Auckland Council has won a prosecution against an earthworks contractor who is a repeat offender.

Tao Ma was convicted and fined $34,000 for illegal earthworks at site at Albany Heights where native trees were affected.

In sentencing Ma in the District Court at Auckland, Judge Melinda Dickey said he and his former company, Mender Construction, of Silverdale, did the earthworks on the residential site without consent.

Ma and Mender, represented by Richard Zhao, have previous convictions under the Resource Management Act for doing unlawful land works, she noted.

In a 2020 case, Mender Construction, Ma and Dean Hu allowed excess soil to cross a boundary into adjacent indigenous vegetation. Works were carried out within the drip line of protected trees. Earth or rocks damaged trees and there were inadequate sediment control measures at the site.

In the latest case decided on this month, work was carried out at the rural property at 202 Albany Heights Rd between July 2020 and September 2021. That property has a significant ecological area overlay, the judge noted.

The council first found out about the works when a complaint said around 100 native trees were affected. A second complainant said about 100m of clay, 30m to 40m wide, was overflowing onto a neighbouring property, breaking a boundary fence. Bad weather was causing clay to slip onto the neighbour’s place as well as Albany Heights Reserve, the council was told.

A council officer visited the property and met a man operating a digger who introduced himself as Danny, owner of DDI Cartage. That officer showed the digger operator a map and explained how damage within the significant ecological area was not allowed. Subsequent investigations revealed the truck was registered to Ma’s Mender Construction.

In fact, it wasn’t Danny on the digger but Ma, pretending to be Danny.

The officer saw large areas of earthworks and land disturbance resulting in a slip causing sediment and clay to go into an overland flow path that feeds into a tributary of Lucas Creek and from there, into the Waitematā Harbour.

“While at the property, the council officer observed a large truck entering and unloading topsoil into the southeastern area where the digger was being operated,” the judge noted.

Trees had been cleared, tree stumps and other timber were stacked up, clay was discharged and sediment was not being controlled, particularly at the bottom of the sloping site.

A third complainant told the council that fill with soil, concrete and construction or demolition waste was being brought to the property, owned by Annie Li.

The council issued abatement notices to her and as a result of that she engaged Thomas Consultants to investigate the earthworks. That found the fill consisted of silty clay, gravels, cobbles, fragments of asbestos-containing material and uncertified fill materials. She applied for consent to carry out remediation.

Search warrants resulted in the council discovering many phone calls and text messages between Ma and Li. She then attended interviews with the council along with a Mandarin-English interpreter and confirmed she contacted Ma on WeChat. He told her he was a digger driver dealing with soil and had extra soil he could deliver to her. Several deliveries were made, but she didn’t pay for those and asked him to stop doing that but he did not comply. She said three or four truckloads were delivered after she told him to stop.

Ma then met with the council and told them Dongyue, also known as Danny Hu, was the operational manager of Mender Construction and that man oversaw any issues. Ma admitted bringing about 20 truckloads of aggregate to Li’s property and that his actions were in breach of the law. He had therefore entered a guilty plea, but he said his actions were to help Li because her property had big cracks and its foundation was sinking.

He confirmed he makes money from tipping soil from sites. That would otherwise go to Envirowaste or Waste Management where he would have to pay up to $200 a truckload.

Ma admitted operating the digger when the council officer visited, and admitted giving Hu’s name and DDI Cartage when the officer directed him to stop work.

He said he told the officer he was Danny because he didn’t want another Resource Management Act conviction under his name.

His actions caused damage in the significant ecological area that required remediation to reinstate native vegetation. Fill must be removed.

Jade Magrath for the council sought a fine of about $55,000. Ma ought to have known what he was doing was illegal. The earthworks were not insignificant and the environmental effects were serious.

Zhao, Ma’s lawyer, said his client accepted full responsibility for his actions and had displayed his remorse by seeking community work.

The judge said Ma’s deceptive conduct was an aggravating feature, as well as the fact he and the company had previous convictions under the Resource Management Act.

She fined him $34,675 and ordered him to pay court costs and the solicitor’s fee.

Anne Gibson has been the Herald’s property editor for 23 years, has won many awards, written books and covered property extensively here and overseas.