Spiller v Hastings District Council

[2013] NZHC 1444

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2012-441-000043 [2013] NZHC 1444

BETWEEN  SIMON PERRY SPILLER Appellant

ANDTHE HASTINGS DISTRICT COUNCIL Respondent

Hearing:                   6 June 2013

Counsel:                  Appellant in person

FE Cleary for Respondent

Judgment:                17 June 2013

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 17 June 2013 at 2.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Elvidge & Partners, Napier

SPILLER v THE HASTINGS DISTRICT COUNCIL [2013] NZHC 1444 [17 June 2013]

Introduction

[1]      After  a  defended  hearing  in  the  Napier  District  Court,  Mr  Spiller  was convicted of owning a swimming pool that was not fenced in compliance with the Fencing of Swimming Pools Act 1987 (the Act).1    He was ordered to pay a fine of

$500 and to pay costs and witnesses’ expenses.2   He appeals against conviction and

sentence.

Facts

[2]      The essential facts are  not in dispute and were the subject of an agreed statement of facts in the District Court.  Mr Spiller owns a property a Mere Road, Fernhill, on which there is an above-ground swimming pool.  In February 2010, staff of the respondent Council inspected the pool.  They found the exterior walls to be generally 1.2 m above the surrounding ground level.   One wall of the pool was supported by struts which project from the wall at an angle of approximately 45 degrees.  The base of the struts are anchored in the ground.  The tops are attached to the side wall approximately 700 mm below the top of the wall.

[3]      The  view  of  Council  officers  was  that  the  struts  were  non-compliant. Mr Spiller was invited to carry out remedial work.  Mr Spiller took the view that his pool complied with the Act.  He declined to carry out the suggested remedial work. A prosecution followed.

Appeal against conviction

[4] Section 8 of the Act requires that every owner of a pool to which the Act applies shall ensure that the pool is fenced by a fence that complies with the requirements of the building code in force under the Building Act 2004. Mr Spiller’s position is that the Act does not apply to his swimming pool. He argues that s 5(a) of the Act applies to his swimming pool to exempt him from the obligation under s 8. Section 5(a) provides as follows:

5        Exempted pools

1      Hastings District Council v Spiller DC Hastings CRN-1202-050-0013, 3 August 2012.

2      Hastings District Council v Spiller DC Hastings CRI-2012-020-000055, 23 October 2012.

Nothing in this Act shall apply in respect of—

(a)       Any pool that has no part of the top of its side walls less than 1.2 metres above the adjacent ground level or any permanent projection from or object standing on the ground outside and within 1.2 metres of  the  walls,  where  the  outside  surface  of  the  side  walls  is constructed so as to inhibit climbing and any ladder or other means of  access  to  the  interior  of  the  swimming  pool  can  be  readily removed or rendered inoperable and is removed or rendered inoperable whenever it is intended that the pool not be used:

[5]      In the District Court, the respondent Council’s position was that Mr Spiller’s pool is not exempt because the supporting struts project from the ground approximately 500 mm from the side of the pool wall and attach to the pool approximately 700 mm below the top of the pool sides.  The Council’s case was that the struts were a “permanent projection from ... the ground” and the distance from the top of the struts to the top of the pool, at 700 mm, was less than the 1.2 m required under the Act.

[6]      Mr Spiller’s case was that no part of the top of the side walls of his pool was less than 1.2 m above the adjacent ground level.  He argued that the struts are not permanent projections but part of the side wall itself.

[7]      Judge  Rea’s  conclusion  and  his  reasoning  are  succinctly  stated  in  the

following passage of his judgment:

[21]      I am satisfied beyond reasonable doubt that the struts are permanent projections and therefore the distance between the top of the strut and the edge of the pool wall is 700mm and not the 1.2m required under the Act. While the struts may be part of the pool in the sense that they help support one of the pool walls they are still permanent projections.   If Mr Spiller’s argument is correct and the struts are not permanent projections but are simply part of the pool itself then there would be nothing to prevent the struts going even higher up a pool wall and being shaped in a way that provided steps so long as they were part of the pool in the sense that they were helping hold the pool up.   If that was the case and the pool was therefore exempt under s.5 of the Act then in my view that approach would totally defeat the purpose of the Act which is to promote the safety of swimming pools and to restrict access to them in the way the Act requires.

[8]      Mr Spiller maintains the position he had taken in the District Court that his pool came within s 5(a) of the Act.   His primary argument is that the “permanent projection” referred to in s 5(a) is, as he put it, reflexive to the ground, and is

independent of and does not include anything projecting from the pool side wall.  He submitted that s 5(a) makes a distinction between permanent projections from the ground outside the pool and permanent projections from the pool side walls themselves.   It does so, he said, by specifying separately that the pool side walls must  be  constructed  so  as  to  inhibit  climbing.    He  said  this  latter  requirement exposes one of the flaws in Judge Rea’s reasoning.  If struts were formed as steps, as

the Judge postulated in his decision3, the walls would not meet the s 5(a) test of

being constructed so as to inhibit climbing.

[9]      With  respect  to  Mr  Spiller,  who  advanced  his  arguments  with  skill  and decorum, I am unable to accept his arguments.  I agree with Ms Cleary that the struts are projections in the way that word is commonly used, as being a part or thing which extends outwards beyond a prevailing line or surface.4     The fact that the projection connects with and arguably forms part of the pool wall is immaterial.  The Judge was clearly correct in observing that if such structures were exempt because

they are not “permanent projections”, the purpose of the Act – to promote the safety of swimming pools and to restrict access to them – would be defeated.

[10]     The  requirement  for  the  side  walls  to  inhibit  climbing  does  not  assist Mr Spiller but provides a further and distinct hurdle for him to surmount.   The existence of the struts does not inhibit climbing, in the sense of hindering or preventing a person to raise him or herself “by mounting or ascending by the aid of hands and feet”.5    Rather, the struts would assist climbing by providing a foothold above ground level for a would-be climber.

[11]     I am satisfied that Judge Rea was right to find that the existence of the struts meant that the pool was not exempt under s 5(a) of the Act.

[12]     My findings on this issue dispose of the appeal.  In his decision Judge Rea went  on  to  consider  the  requirements  of  the  Building  Code  which  would  have

applied to any fence necessary to meet the requirements of s 8(1) of the Act and to

3      At [21] quoted in [7] above.

4      Webster’s Dictionary defines it as the state of jutting out or protruding. Jess Stein (ed) Webster’s

Encyclopaedic Unabridged Dictionary of the English Language ( Gramercy, New York, 1996) at

1150.

5      Webster’s Dictionary, above n 4, at 277.

the Schedule to the Act which also provides for means of compliance.  The Judge had heard evidence called by the Council intended to show how a child could access a pool that was not compliant.  One of Mr Spiller’s grounds of appeal was that the circumstances in which that witness was recalled was a breach of natural justice.

[13]     It is unnecessary for me to canvass these matters.  It was accepted by both parties (and, indeed, by the Judge) that the case turns on the application of s 5 to the pool.  If the Act applies to the pool, it is non-compliant.

Appeal against sentence

[14]     Section 9(1) of the Act provides for a fine not exceeding $500 for a breach of s 8 and, where the failure is a continuing one, to a further fine not exceeding $50 for every day on which the contravention has continued.  In sentencing Mr Spiller, Judge Rea took into account that Mr Spiller genuinely believed that his interpretation of the Act was correct and that it was his understanding that by the time the hearing concluded, Mr Spiller had taken steps to ensure the pool did comply.

[15]     The Council argued  for  a penalty of $2,000, submitting that the lengthy period of non-compliance (from 2007) and the associated potential for danger arising as a result was an aggravating factor.  The Council also relied on the antagonistic stance of Mr Spiller and his refusal to take remedial steps.

[16]     Noting that the contest between Mr Spiller and the Council had generated more heat than light and of the need to “step back and reflect the true criminality, if that is the right word, of Mr Spiller’s transgressions” Judge Rea imposed a fine of

$500.

[17]     Mr Spiller submitted that the sentence was unjust and unduly harsh.   He argued that the appropriate course would have been for the Judge to instruct the Council  to  issue a Notice to  Fix.    He referred  to  longstanding exchanges  with representatives of the Council and what he described as the obdurate attitude of the Council.  He argued that a Notice to Fix would have provided a means of reaching a practical resolution to the impasse.

[18]     As Ms Cleary pointed out, a Notice to Fix would have been redundant given that remedial action had already been taken by the time of sentencing.  I agree with him that such a response would have been inadequate in the circumstances.

[19]     While Mr Spiller took a stand, as he was entitled to do, based on his view of what the Act required of him, he cannot seek to avoid the consequences of ongoing non-compliance with statutory requirements simply on the basis that he was sincere if mistaken in his beliefs.  The fine could be regarded as modest.   Given the importance of ensuring compliance with public safety legislation, to hold transgressors accountable and to recognise the need for general and specific deterrence,  it  could  not  be  said  that  the  penalty  imposed  on  Mr  Spiller  was manifestly excessive.

Result

[20]     The appeal against conviction and sentence is dismissed.