Council to take swimming pool stoush to Court of Appeal
A council ordered to pay a couple $300,000 over a non-compliant swimming pool will argue its case in the Court of Appeal.
In February 2023, the Tasman District Council was ordered by the High Court to compensate two homeowners after a swimming pool fence inspected multiple times was found to be non-compliant years later.
Now, the council has been granted leave to argue in the Court of Appeal that the inspections were for the safety of young children, not to protect the economic interests of property owners.
The battle dates back to 2006, when the council issued a code of compliance certificate for the swimming pool at the Wakefield property.
That home, built on a 2.9ha lifestyle block, won several awards, including local category winner in the Master Builders House of the Year awards 2007, and a Resene Colour Award.
Louise Buchanan and Keith Marshall bought the property in 2008 for $780,000.
The council inspected the pool in 2009, and again in 2012.
On both of those occasions, it complied under the Fencing of Swimming Pools Act 1987.
However, when the couple put the property on the market in 2019, another council inspection found that the fencing did not comply, citing doors opening into the pool area from the house, and a garage, studio and gate that did not self-close or self-latch.
The couple carried out remediation work, which passed its final inspection in June 2022.
Buchanan and Marshall started proceedings against the council for negligence, negligent misstatement, and breach of a statutory duty.
In his 2023 ruling, High Court Justice Matthew Palmer found that the council owed the pair a duty to undertake the 2009 and 2012 pool inspections with “reasonable skill and care, which it breached”. He awarded damages of almost $300,000.
“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.
However, in a Court of Appeal judgment released on Friday, the High Court decision was set aside, and the council was granted leave to argue its case in the higher court.
According to the judgment, the council would argue “that the purpose of the 2009 and 2012 inspections was to protect the safety of young children, not to protect the economic interests of property owners”.
“...any duty of care [council] might have owed in connection with those inspections was not owed to property owners, and did not extend to economic loss suffered by them.”
The justices added that they had “considerable sympathy” for the homeowners. “Ms Buchanan and Mr Marshall ... have suffered loss through no fault of their own.”