The trailer parked in the driveway next to the timber wall and neighbour's pool fence. Photo / Supplied
The trailer parked in the driveway next to the timber wall and neighbour's pool fence. Photo / Supplied
A government department has overturned a council decision to slap a former councillor with a legal notice for parking his trailer too close to his neighbour's pool fencing.
The Ministry of Business, Employment and Innovation (MBIE) also found part of the pool fence non-compliant, and that the Tauranga City Councilwas wrong to let it be built without building consent.
The two recently released MBIE determinations relate to the boundary between million-dollar-plus homes on Papamoa Beach Rd.
For owner David Holland - a surveyor by trade and former employee and councillor of Tauranga County Council in the 1980s - the rulings were a "vindication" after three years of battling the city council over the issues with his neighbour's pool fencing.
But the council insists it took the right steps in a case that has so far racked up $46,000 in bills.
According to the determinations, there are two barriers on the boundary - a longstanding 1.2m high wall, and a parallel 2.1m pool barrier built in 2017/18 on the neighbour's side.
The neighbours showed the council a sketch of their planned fence before building it, and the council confirmed it would be compliant with rules for pool fences added to the Building Act in 2017. The council gave them a building consent exemption as the work would address urgent safety concerns.
After it was built, the council found the barrier was "fully compliant", but an inspector raised an issue with the trailer parked next to the fence in the driveway next door.
On September 13 last year, the council issued Holland and his wife a "notice to fix" under the Building Act ordering them to move the trailer.
The notice said: "Should a small child under 5 years of age climb/clamber on to the trailer, which is approximately 600mm high and which is located less than 1200mm from the wall, that child could then access the top of the wall.
"This may enable the child to scale the pool safety barrier to access the swimming pool at your neighbours (sic) property."
The council said the trailer was a breach of a rule that "no person may use a building, or knowingly permit another person to use a building, for a use for which the building is not safe or not sanitary".
An aerial view of the boundary in question. Graphic / Supplied
The offence under the Building Act 2004 carries a maximum penalty of a $100,000 fine, plus up to $10,000 a day if the offending continues.
The council would later clarify the "building" was the wall, not the trailer. This was not clear from the notice, MBIE found.
The notice ordered Holland to ensure his trailer was parked more than 1.2m from the wall by September 30 and onwards.
After Holland refused to comply, the council applied to the authority for a determination, saying it considered it necessary to test this area of law.
The neighbours argued the risk was created by Holland's trailer, not their fence.
MBIE found the council had no authority under the Building Act to regulate trailer placement, and the matter of whether a child could use the trailer to access the pool was a compliance issue for the pool owners.
It found the pool fence had multiple vulnerabilities that allow a child to climb over and the council should have realised that it would not be compliant from the sketch.
MBIE reversed the building consent exemption, found the section of pool barrier on the boundary non-compliant, and reversed the notice to fix.
The Tauranga City Council administration building on Willow St. Photo / File
Responding to the decisions, council general manager of regulatory and compliance Barbara Dempsey said the matter had been complained about since 2017.
The council had "regrettably had to spend some $46,000 on various professional advisors towards trying to resolve the matters in dispute."
She said the matter related to both new pool fence standards introduced in 2017 and the trailer placement.
"As this relates to the risk of a child drowning, the council has and continues to take the matter very seriously."
She said pools near shared boundaries often created tricky issues nationwide, due to limited space and objects on the neighbouring property making fences more climbable.
In relation to the non-compliant fence, she said the council agreed more could be done to remove the risk, but it legally needed MBIE to overturn the original consent decision so the council could require further work.
The council would talk to the owners about making improvements.
She said the council knew using the Building Act on the trailer issue would be "something of a test case" but stood behind the decision to pursue it.
"We firmly believe that the actions taken by the council officers were appropriate and demonstrates a responsive approach by the council in dealing with a potential risk."
Holland said the council's response was, in his opinion, "PR spin''.
An extract from a December 2015 Tauranga City Council brochure about swimming and spa pool fencing. Image / Supplied
He said the council making a link to new pool fence standards did not, in his view, bear scrutiny as the 2017 changes were not relevant to his case.
The council discussed the issue in a confidential meeting last week. Holland and his advisor, Murray Osmond, were denied entry to the meeting, and their request to have their matter heard in public was also rebuffed.
The council cited legal privilege.
Holland said, in his opinion, the council was trying to "muzzle" him and using legal privilege to withhold information about staff actions and his claims.
The council declined to comment on these allegations.
The council has also rejected Holland's terms for a settlement of his case.
