A couple who discovered their pool, the central feature of their award-winning home, was unlawful have been awarded more than a quarter of a million dollars after taking the council to court.
It comes as the council involved has been described by a judge as negligent for not only issuing the building consent and Code of Compliance in the first place - but not picking up the fact it was non-compliant on two subsequent inspections.
Keith Marshall and Louise Buchanan have this week been awarded nearly $270,000, after the Tasman District Council twice signed off the couple’s in-ground pool, only to say it was unlawful when the house was placed on the market seven years later.
Their lawyer says the total award is likely to be higher once legal costs are considered.
“It has cost us a lot of time, energy and effort to get to this point. We feel vindicated that Tasman District Council has been judged in the High Court to be negligent at numerous levels, and that has caused us harm,” Marshall said in response to the decision that was released today.
“For us, it simply wasn’t right that we were taken to task for something we didn’t do, by the very agency that did do it.”
According to a High Court decision, the high-end award-winning Wakefield home was issued a code compliance certificate (CCC) in 2006 - prior to the couple purchasing the property.
In 2008, shortly after Marshall was appointed the chief executive of Nelson City Council, the pair purchased the home via a family trust.
The couple said they would not have purchased the home without the CCC, especially due to Marshall’s “reputational reasons”.
In 2009, the council required the property’s pool to be registered. An officer inspected the pool both that year and later in 2012, examining locks and latches on the home’s doors, which were deemed compliant.
All was well until 2019, when, preparing for retirement, the couple put the property on the market.
A council officer came to again inspect the pool, finding it was not compliant as the property’s doors were not self-closing or alarmed.
The couple wrote to the council expressing concern with the previous inspections. The council wrote back, advising them that the doors adjacent to the pool were not compliant with the Building Act. The letter did not state that the pool required fencing.
The couple took the property off the market, seeking a determination under the Building Act via the Ministry of Business, Innovation and Employment (MBIE). In late 2020, the ministry determined the doors were not compliant and additionally, fencing was required. The couple complied, erecting fences around the pool.
The couple could not challenge the issuing of the original CCC in 2006 due to a 10-year limitation within the Building Act.
Instead, they launched proceedings against the council in respect of the 2009 and 2012 inspections, claiming they were conducted negligently and because they identified no issues with the fencing. That meant they never had an opportunity to launch proceedings against the CCC within the statutory time frame.
Both said the issue had caused them immense stress, with Buchanan grappling with a long-term health issue, while Marshall said as a consequence of the prosecution no council would be likely to employ him as a chief executive again.
At a trial last year, the council’s lawyer Simon Waalkens said during cross-examination of Buchanan that the council apologised for the incorrectly issued CCC.
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But the council denied it had any duty of care in protecting the couple from financial loss as claimed.
Waalkens submitted financial loss is a foreseeable result of damage due to a consent or CCC being issued when it should not have been. But he argued the foreseeable loss of a failed pool inspection is not financial and instead relates to the risk of harm to a child who could gain unsupervised access to the pool.
The couple provided evidence from John Hancock, the chair of the New Zealand Property and Valuation Standards Board, who estimated a 25 per cent reduction in the amenity value of the property due to the new fencing now required around the pool, which he described as “architectural excellence butchered”.
The council’s own valuer deemed the loss of value at a lesser rate.
Acting for the couple, lawyer Andrew Shaw submitted that pool owners are clearly owed the duty just as much as children under the age of 6.
The background and context of the Fencing of Swimming Pools Act indicates it was designed to prevent swimming pools, and their fencing, from falling below the standard of the Building Code. Accordingly, the damage the couple suffered is exactly of the kind the statute is designed to prevent, Shaw said.
Justice Matthew Palmer concluded it was reasonably foreseeable that if an inspection does not identify a breach, the property owner would not be aware there was a breach. He also concluded the council did not take reasonable skill or care in undertaking the inspection.
It was reasonably foreseeable, Palmer said, that remediation of a non-compliant pool barrier could affect a property’s amenity value, particularly where the house has been designed around the pool such as in this case.
He criticised the council, saying its attempt to “minimise their regulatory powers in relation to pools is misplaced”.
“Ms Buchanan and Mr Marshall could not reasonably be expected to have the expertise that the Council could reasonably be expected to have. I do not consider Mr Marshall’s occupation as a council manager (not a pool inspector), changes that.”
He also said, in the event the couple had challenged the issuing of the CCC before they were out of time, they would have been successful.
Justice Palmer ruled the council was negligent in issuing both the building consent and CCC, undertaking the 2009 and 2012 inspections, and representations made to the couple.
A Tasman District Council spokesperson did not respond to questions as to whether it accepted the judgment.
“The issue was, and remains, about the safety of children as espoused in the Act and by the Judge in this case. We have since made structural changes to the way we monitor swimming pools within the regulations.”
“Beyond these points, the council is currently considering the implications of this decision and is not in a position to comment further at this time.”
