The swimming pool at the centre of the couple’s award-winning home in Wakefield, near Nelson, before it was found it didn't comply and had to be fenced.
The swimming pool at the centre of the couple’s award-winning home in Wakefield, near Nelson, before it was found it didn't comply and had to be fenced.
A couple awarded $271,000 in damages over council negligence in inspecting their swimming pool have now lost the payment on appeal.
The Tasman District Council, which accepted it had made mistakes earlier on, has successfully argued in the Court of Appeal that those inspections were to protect young children’s safety, not the owners’ economic interests.
The decision last Friday from the Court of Appeal overruled a High Court decision that found the council had been negligent on four occasions and ordered it to pay the property owners $246,000 in special damages and general damages totalling about $25,000.
The Appeal Court also found that recovery for the negligence was time-barred by 2019 when the non-compliances were discovered, and the claim was lodged in 2020.
“Limitation rules can on occasion produce harsh results of this kind,” the court said.
The decision comes after four years of legal wrangling by property owners Louise Buchanan and Keith Marshall, a former Nelson City Council chief executive, who challenged the neighbouring Tasman District Council over what they saw as negligence over how it handled the pool inspections.
The council told NZME it was pleased with the outcome because the earlier High Court decision had set an unhelpful precedent that would have made it harder for every council to regulate pool fencing.
Marshall, who has had a long career in local government and is currently board chair at Waitaki District Health Services, having recently stepped down as CEO at Oamaru Hospital, has not responded to requests for comment.
Buchanan and Marshall, as trustees of the Buchanan Marshall Family Trust, bought the property in Wakefield, south of Nelson, in 2008, relying on the assurances that it complied with relevant building laws.
They specifically checked the house had a code compliance certificate.
Four years earlier the council had granted building consent for the “innovative”, architecturally designed and ultimately award-winning home, oriented around a swimming pool in a central courtyard. It issued the compliance certificate in 2006.
The council inspected the pool in 2009 and again in 2012 to check it complied with laws around fencing of swimming pools, and found on each occasion that it did.
It was only when the couple went to sell the property in 2019 that they learned the design and construction of the house, designed to enclose the pool, did not comply with rules around the fencing of swimming pools and the building code.
In November 2019, having seen the property advertised for sale, the council conducted a further inspection, and the inspector advised the pool had failed the inspection because the doors opening into the pool area from the house, studio and garage did not self-close or self-latch and an east gate did not self-close or self-latch.
The couple fenced the pool as required, and it passed its final inspection in June 2022 but the work was said to have impaired the look and character of the property and reduced its value.
The homeowners say they incurred losses through the retrospective need to put fencing around the pool.
In 2020, Buchanan and Marshall lodged legal action against the council, claiming the 2009 and 2012 inspections had been negligent, and as a result, they had lost the opportunity to sue the council in respect of its earlier negligence in 2004 and 2006.
The High Court agreed with their argument and declared the council had been negligent in 2004, 2006, 2009 and 2012 and ordered it to pay the owners $271,000 in damages.
The council appealed using the argument that the Fencing of Swimming Pools Act, and therefore the inspections in 2009 and 2012, was to protect the safety of young children, not the economic interests of the owners.
Therefore, any duty that was owed by the council to the owners when it carried out its 2009 and 2012 inspections did not extend to the type of loss suffered by them.
The Court of Appeal agreed with the council’s position the Building Act did not create a duty to protect owners from economic loss, and also agreed with the council that the claims were time-barred.
In summary, it found the council did not owe a duty of care to the owners to protect them from the loss of litigation rights against the council concerning pool inspections, and those checks did not meaningfully cause the owners’ loss.
It also found the owners’ claim related to the original building work in 2004-2006 was time-barred, and the effect of the High Court’s decision would mean that the time to bring a case could run indefinitely which would be inconsistent with the purpose of the 10-year limitation.
The Appeal Court said it had “considerable sympathy” for the couple who had suffered loss through no fault of their own and were unable to recover that loss from the negligent council because of a time bar.
A spokesperson for the council said while it accepted that mistakes were made in the early 2000s, it had “significantly improved its practices” and was satisfied it was consenting and inspecting pools in a manner consistent with the current legislation.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.
