Sink or Swim: Council Swimming Pool Inspections

Tuesday 25 June, 2024

A recent Court of Appeal decision has reversed an earlier High Court decision that awarded a couple over $270,000.00 in damages for a failure by the Tasman District Council (the Council) to advise that a swimming pool fence did not comply with the Fencing of Swimming Pools Act 1987 (FOSPA). 

The Council negligently issued a Building Consent and Code Compliance Certificate for a property and its swimming pool under the Building Act 1991, as the pool fencing did not comply with the FOSPA. Had the property owners become aware of this within 10 years of the negligent act, the Council would have been liable for negligence. 

In 2009 and 2012 the Council inspected the pool and indicated it complied with the fencing requirements under the FOSPA. In 2019, the property was listed for sale, and having seen the advertising, the Council undertook a further inspection of the pool and correctly identified the defects in the fencing. 

As it had been more than 10 years since the Code Compliance Certificate was issued when the owners became aware of the defects, they needed to show that the inspections under the FOSPA were negligent and that this negligence caused a proximate loss. 

The Court’s fundamental position was that the purpose of the FOSPA was to ensure that the public (and particularly children) were properly protected by the fencing of swimming pools. The purpose of the inspections was not to give the owners of the property comfort that their fencing complied with the Building Act. As a result, the Council’s incorrect certificates relating to the FOSPA were not for the purpose of confirming to the owner that their pool fencing complied with the Building Act; the statements were merely incidental to the FOSPA’s primary purpose of ensuring pools were safe.  

The Court went on to state that to be an actional negligent misstatement, the recipient must act on the misstatement to their detriment. The misstatement from the Council did not cause the owners to act. It caused them to do nothing on the incorrect assumption that everything was fine. 

While it was not material to the decision made, the Court also commented that in its view it was arguable that the claims related to the original building work and were therefore outside the relevant limitation period. 

This case highlights the importance of obtaining a building inspection from a suitably qualified expert before purchasing a residential property. It is not enough to simply rely on the fact that the Council has issued a Code Compliance Certificate. Licenced building practitioners can help identify building work that does not comply with building laws and regulations.

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