Swimming pool stoush proves costly
The Tasman District Council has had to fork out almost $300,000 after a swimming pool fence inspected multiple times was found to be noncompliant years later.
The homeowner, former Nelson City Council chief executive Keith Marshall, told Stuff that the decision was ‘‘satisfying’’ but said it had been a ‘‘horrific’’ and ‘‘stressful’’ 21⁄ years 2 of legal proceedings.
The issue arose after the council issued a code compliance certificate for the swimming pool at the property in Wakefield, in 2006.
The home was built on a 2.9ha lifestyle block, and won several awards, including local category winner in the Master Builders House of the Year awards 2007, and a Resene Colour Award.
Two years later, couple Louise Buchanan and Marshall, who was appointed chief executive of the Nelson council in 2008, bought the property for $780,000.
The Tasman council inspected the pool in 2009, and again in 2012. On both occasions, it complied under the Fencing of Swimming Pools Act 1987.
The couple, who wanted to downsize before retirement, put the property on the market in 2019.
The pool, and the gates and doors that led to it, had not changed during their ownership, a High Court decision released this week said.
The council again inspected the pool, and this time found that its fencing did not comply.
On November 14, 2019, the council sent Buchanan and Marshall a letter advising that the property was not compliant, because the pool barrier was non-compliant.
The council said the failed items included that the doors opening into the pool area from the house, studio and garage did not self-close/selflatch, while the east gate did not self
‘‘We had assurances from [the council] in writing that it was fully compliant, multiple times.’’
Keith Marshall, property co-owner
close/self-latch.
In December 2021, the couple applied for a building consent for remediation work, which was done in 2022, and it passed its final inspection in June 2022.
However, the couple said the required remediation destroyed the central design feature of the house, ruining the character of the property.
Marshall, who resigned from his Nelson council role in 2012, said yesterday the legal action had employment repercussions.
‘‘Let me put it this way – if you’re an elected council, would you want to employ a chief executive who had taken another council to the High Court?’’
Marshall said the TDC ‘‘used their regulatory powers against us for something they were negligent at’’.
‘‘The logic of this was always compelling – the law hasn’t changed, nothing has changed about the pool. So either it remains compliant, or it never was.
‘‘We had assurances from them in writing that it was fully compliant, multiple times, not just once. If it wasn’t compliant, there was never an issue that we weren’t going to make it compliant,’’ he said.
‘‘But the reality is, we would never have bought the property had it been not compliant with the Building Code.’’
Buchanan and Marshall started proceedings against the Tasman council for negligence, negligent misstatement, and breach of a statutory duty, with a hearing held in July last year.
Justice Matthew Palmer found that the council owed the couple a duty to undertake the 2009 and 2012 pool inspections with ‘‘reasonable skill and care, which it breached’’.
He awarded damages of $270,000, including $25,000 general damages, plus interest and costs.
‘‘If the council had not been negligent, Ms Buchanan and Mr Marshall would not have had to fund the cost of remediating the property,’’ he noted.
The council, it was also noted, did not apologise until the first day of the trial, 21⁄ years after the legal 2 matters first arose.
Marshall said the damages of $240,000, for the difference in value between the price paid for the property and its market value at the time, was reached after the judge had considered all of the valuation evidence.
‘‘What the judgment basically came down to was putting us back in the position that we would have been with a non-compliant property in 2008,’’ he said.