In a win for councils nation-wide, in Tasman District Council v Buchanan, the Court of Appeal has overturned a decision relating to councils’ duty of care when inspecting residential swimming pools – holding that councils do not have a duty of care when carrying out pool inspections, and that the purpose of pool fencing legislation is protecting the safety of children, not protecting the financial interests of pool owners. The Court of Appeal also confirmed that the Building Act’s 10-year long-stop limitation period cannot be extended by reference to other ‘in time’ actions by a council.
The case concerned an award-winning house in the Tasman District, which had a courtyard with a pool that was surrounded by buildings on both sides, with glass sliding-doors leading from the house into the courtyard area.
The Council issued a code compliance certificate in 2006, the plaintiffs purchased the property in 2008, and the Council passed inspections of the pool area in 2009 and 2012. In 2019, a Council inspection identified that the pool area did not comply with the pool barrier legislation. The plaintiffs installed a compliant pool barrier – and sued the Council for what they claimed was a loss in the value of the property due to the negative aesthetic impact of the pool barrier on the property.
The plaintiffs argued that the Council was negligent both when it approved the design of the property and when it completed pool inspections. It was accepted that any claim for the approval of the design and the issuing of the code compliance certificate was time-barred. To get around this, the plaintiffs argued that, because earlier pool inspections had found the pool to be compliant, they were not aware of any issues with it, and had lost the opportunity to sue the Council within time.
The High Court declared that the Council was negligent and awarded the plaintiffs $270,000 plus interest. The Court of Appeal unanimously overturned the High Court’s decision and found for the Council. It accepted the Council’s argument that pool fencing legislation is about safe-guarding children, not about property owners’ financial interests. The Court stated that “property owners are the persons whose conduct was regulated by the legislation, not the intended beneficiaries of the regulated function.”
The Court of Appeal also noted that the claim was essentially for the original construction of the house in 2004-2006, and was therefore time-barred. The Court noted that limitation rules can produce harsh results, “but sympathy for deserving claimants does not justify circumventing limitation rules …”. Finally, the Court of Appeal held that an aggrieved party should not get a declaration from the Court if either they already have a claim for damages, or if their claim is time-barred.
The Court of Appeal’s recognition of the purpose of councils’ statutory functions under the pool safety provisions of the Building Act is relevant to a number of functions that Council’s perform on a daily basis. Rice Speir together with Christine Meechan KC acted for the Tasman District Council in this case and were pleased to help the Council obtain this result.
