A recent High Court decision has awarded a couple over $270,000 and extended the duty of care that local councils face in relation to inspections and consents.
The decision is the first time a duty of care owed by councils for inspections of residential swimming pools was tested. Buchanan and Marshall v Tasman District Council held that the council was negligent in issuing a Code Compliance Certificate to a swimming pool that was in breach of the Fencing of Swimming Pools Act 1987 (FOSPA).
Tasman District Council (TDC) was ordered to pay Ms Buchanan and Mr Marshall (the plaintiffs) more than $270,000 in damages and costs.
The main issue concerned whether the council owed, and breached, a duty of care when they inspected the swimming pool at an award-winning Tasman home in 2009 and 2012.
The compliance issue was that the pool fencing did not meet the standards set out in FOSPA. The fence was too low and gates were not self-closing and self-latching. The reasoning behind FOSPA is to protect young children from harm.
To be held liable in negligence, TDC first needed to owe a duty of care to Ms Buchanan and Mr Marshall, in terms of:
1. the loss being a reasonably foreseeable consequence of the council’s faulty inspection;
2. the parties’ relationship being sufficiently close to owe a duty of care; and
3. it being fair, just, and reasonable to impose a duty of care on the council here.
Justice Palmer continued the trend from cases such as Invercargill City Council v Hamlin and The Grange in imposing a duty of care on councils when inspecting and consenting building work. While TDC argued that their only duty of care was to young children, as per FOSPA, the court found for the plaintiffs in all the above elements.
It was reasonably foreseeable by the council that their faulty inspection could impact property values – leading to financial damages. The court also found that the parties’ relationship was proximate enough, due to it being the council’s job to minimise the risk from non-compliant swimming pools with their inspections.
Interestingly, the court found that the claim for damages from the 2009 inspection of the swimming pool were barred by the 10 year ‘long stop’ in the Building Act 2004. However, the 2012 inspection claim for damages was upheld, as proceedings were filed in 2020, before the 10 year bar applied.
To get around this ‘long stop’, Ms Buchanan and Mr Marshall successfully argued that TDC’s negligence from pre-2012 resulted in damages from a loss of opportunity. Not identifying the compliance issue earlier meant that the plaintiffs lost the option of suing TDC for the loss of value in their property when they bought it. Therefore, the court awarded $195,000 for this lost value.
Further sums of $25,000 for distress, $45,000 for remedying the non-compliance, and other costs, brought the total awarded to the plaintiffs to over $270,000.
This case has extended liability faced by councils when they are negligent in their duties to inspect and consent. It has also extended the claims that may be brought for loss of opportunity.
If you have concerns regarding the compliance of your pool or home, or other local authority issues, contact our civil litigation team on 03 441 2743.
 Buchanan and Marshall v Tasman District Council NZHC 53 [Buchanan]
Invercargill City Council v Hamlin  1 NZLR 513 (PC)
North Shore City Council v Attorney-General  NZSC 49,  3 NZLR 341 [The Grange]
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