ANTONELLI INVESTMENTS PTY LTD and FAMIANO
[2014] WASAT 79
•30 JUNE 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: ANTONELLI INVESTMENTS PTY LTD and FAMIANO [2014] WASAT 79
MEMBER: MR M SPILLANE (SENIOR MEMBER)
MR K DOHERTY (SESSIONAL MEMBER)
MR N HARRISON (SESSIONAL MEMBER)
HEARD: 25 FEBRUARY 2014
DELIVERED : 30 JUNE 2014
FILE NO/S: CC 2101 of 2012
BETWEEN: ANTONELLI INVESTMENTS PTY LTD
Applicant
AND
SERGIO FAMIANO
MARIA FAMIANO
Respondents
Catchwords:
Building dispute - Review of decision Cracking Whether due to differential settlement arising from lack of compaction Australian Standard AS 28701996 - Standard of proof
Legislation:
Building Services (Complaints Resolution and Administration) Act 2011 (WA), s 38, s 58
State Administrative Tribunal Act 2004 (WA), s 27(1), Pt 3 Div 3,
Result:
Application for review successful
Orders of Tribunal dated 23 November 2012 in CC 952 of 2012 other than order 3 set aside
The Tribunal declines to make a building remedy order in respect of respondents' complaint of cracking
Respondents' application dismissed
Summary of Tribunal's decision:
This matter involved the review of an earlier decision of the Tribunal in November 2012. Antonelli Investments Pty Ltd against which an order had been made on that occasion sought a review of the decision in respect of the findings regarding cracking in Mr and Mrs Famiano's home in Tuart Hills.
Mr and Mrs Famiano aledged that the cracking in their home was a result of differential settlement due to a lack of compaction on the right hand side of the house. Antonelli Investments Pty Ltd denied that was the case.
Following the granting of leave to bring the review, a hearing took place on 25 February 2014 which included a view and, having considered all of the evidence the Tribunal was not satisfied that Mr and Mrs Famiano had proved their case to the required standard and set aside all but one of the Tribunal's earlier orders and dismissed Mr and Mrs Famiano's application.
Category: B
Representation:
Counsel:
Applicant: Mr P Monaco
Respondents : Ms C Gleeson
Solicitors:
Applicant: GV Lawyers
Respondents : Lavan Legal
Case(s) referred to in decision(s):
Famiano and Antonelli Investments Pty Ltd [2012] WASAT 230
REASONS FOR DECISION OF THE TRIBUNAL:
Background
This matter arose out of an original complaint that was brought by Mr and Mrs Famiano (Famianos) to the Building Commission under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) against Antonelli Investments Pty Ltd t/as Novus Homes (Antonelli) in respect of issues with the Famianos' home in Tuart Hill.
Practical completion of the home occurred in July 2006 and Mr Famiano first noticed some cracking in or about February 2008.
Following the complaint to the Building Commission, the matter was referred to the Tribunal and proceeded to a hearing on 8 and 9 October 2012 with the delivery of reasons on 23 November 2012 under the citation Famiano and Antonelli Investments Pty Ltd [2012] WASAT 230 (Famiano).
In that decision, the Tribunal dealt with two items of complaint, namely:
a)cracking in various locations of the house; and
b)a water ingress issue.
The Tribunal found in favour of the Famianos in respect of the cracking and made relevant building remedy orders. In respect of the water ingress issue, the Tribunal was not satisfied, on the evidence before it, that the Famianos had made out their case, and declined to make a building remedy order in respect of water ingress and dismissed that complaint.
Following the Tribunal's decision, on 23 Novemeber 2012, Antonelli (applicant) filed an application for review under s 58 of the BSCRA Act which is the current application against the Famianos (respondents)
Section 58(5) of the BSCRA Act states that an application for review cannot be made unless the Tribunal gives leave and on 17 April 2013, the Tribunal heard the application for leave and on 6 May 2013, delivered its reasons granting Antonelli leave to review the Tribunal's decision of 23 November 2012 in respect of cracking.
When leave is given to review a decision, s 58(6) of the BSCRA Act states that the review is conducted as provided for in Pt 3 of Div 3 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), which states at s 27(1):
The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision‑maker but may involve the consideration of new material whether or not it existed at the time the decision was made.
The matter was therefore programmed through to final hearing on 25 February 2014 when the Tribunal, as required by s 58(5) of the BSCRA Act, was constituted by a legally qualified senior member who sat with two sessional members one being a structural engineer and the second, an experienced builder.
That hearing began with a view at the Famianos' home in Tuart Hill, attended by the parties, their legal representatives, relevant experts and the three members of the Tribunal. Following the view, the matter reconvened at the Tribunal for the taking of evidence. A substantial number of documents were submitted, including documents from the original hearing in October 2012, a new bundle of documents containing all of the uptodate experts' reports, witness statements and a joint experts' report. Oral evidence was also given.
Both parties provided closing submissions in writing, the respondent on 4 March 2014 and the applicant on 10 March 2014, following which the decision was reserved.
Issue
The question is whether in respect of the complaint of cracking at the respondents' home, the Tribunal is satisfied that the regulated building service, which in this case was the construction of the Famianos' home in Tuart Hill, was carried out in a proper and proficient manner or is faulty or unsatisfactory (s 38 of the BSCRA Act) and whether a building remedy order should be made.
Respondents' evidence
At both the original hearing in October 2012, and again at the review in February 2014, the respondents, relied entirely on the evidence of Mr Attilio Marra (Marra), a civil engineer, for its expert evidence. Marra first inspected the respondents' home in July 2011, visiting the premises on a number of occasions and provided a number of reports, the most recent dated 5 December 2013.
At paragraph 6.1 of his witness statement dated 10 January 2014, Marra stated:
My expert opinion is that the cracking is a direct result of the footings on the right side of the home being positioned in an area where the soil was not properly compacted.
And at paragraph 6.2 Marra stated:
My expert opinion is that the soil was not properly compacted compared to the remainder of the site, with the result being an uneven balance in movement commonly referred to as differential settlement. Over time, the differential settlement has resulted in extensive and continued cracking.
Apart from Marra's various inspections and monitoring of the cracks at the home, the other matters he relied on to form his opinion, which were in evidence before the Tribunal, were:
a)a compaction test undertaken by Structerre Consulting Engineers (Structerre) on 4 May 2005;
b)a compaction test carried out by UTS Soil Tech Pty Ltd (UTS) in 2012; and
c)a photograph of the sand pad prior to the construction of the house dated 6 May 2005, which Marra stated, 'clearly demonstrates that compaction did not occur at all approximately 500 millimetres and 600 millimetres to the right side of the property'.
During his oral evidence, Marra commented on his various written reports, the number of cracks and the width of those cracks.
At paragraph 6.12 of his statement of evidence Marra stated:
Due to the lack of soil compaction (poor construction practices) I consider that the building services should be characterised as faulty and unsatisfactory and I would expect the Tribunal to make an order that the builder undertakes or compensates the owner for the necessary remedial works.
and at paragraph 7.1Marra stated:
It is my professional opinion that the occurring cracking of the property in Tuart Hill is significant, progressively getting worse and there is a clear establishment of cause of the problem is the lack of compaction on the Subject Land adjacent to the southern boundary and the inadequate and improper compaction of the adjacent sand.
Mr Famiano also provided a witness statement dated 8 January 2014, outlining his observations, and in particular, referred at paragraph 29 of his statement to the photograph of the sand pad dated 6 May 2005, which was also referred to by Marra.
Applicant's evidence
Like the respondents, the applicant's principal witness was also a structural engineer, Mr Hakan Kara (Kara), and like Marra, Kara had visited the property on a number of occasions, beginning in March 2012, and he also furnished a number of reports.
Kara, however, was diametrically opposed to Marra as to the reason for the cracking, which he believed was due to normal shrinkage and settlement and not due to differential settlement resulting from lack of compaction. In his most recent written report, which was a one page letter emailed to the applicant on 13 November 2013, he stated:
I therefore reiterate my earlier comments and confirm there is no structural issue concerned, the presence of minor cracks are of aesthetic concern only.
The only other witness for the applicant was Mr Antonelli, who is a registered builder and a director of Antonelli.
Consideration
The dwelling completed in 2006 is a two storey structure supported on reinforced concrete strip and pad footings with internal and external rendered brick walls. The upper storey floor is a reinforced concrete suspended slab, supported by both the internal and external brick walls.
Following compaction of the site, prior to construction of the dwelling, compaction testing was completed by Structerre using a Perth sand penetrometer test. Structerre then issued a compaction test certificate (Structerre certificate) confirming the site compaction was adequate for a two storey domestic structure.
In 2008, approximately two years after completion of the dwelling, the respondents noticed cracks in the front and rear of the house and from 2008 to early 2012, the parties carried out numerous communications, both written and oral, which resulted in a number of inspections of the property to determine the extent and cause of the cracking, but no agreement was achieved.
It was common cause that the relevant Australian Standard by which performance of the structure should be measured is AS 28701996 (AS2870) titled Residential slabs and footings Construction.
Clause 1.3 of AS2870 deals with the performance of footing systems and at Clause 1.3.1 under the heading 'General' states:
The footing systems complying with this Standard are intended to achieve acceptable probabilities of serviceability and safety of the building during its design life. Buildings supported by footing systems designed and constructed in accordance with this Standard on a normal site which is not subject to abnormal environmental factors and which is maintained in accordance with Appendix B are expected to experience usually no damage, a low incidence of damage category 1 and an occasional incidence of damage category 2. Damage categories are defined in Appendix C.
NOTE: Class A sites (as defined in Section 2) are not reactive to moisture and may have a lesser risk of damage.
It was agreed that the foundation material in this case is Class A, as per Table 2.1 of AS2870, in that it can fit the description of 'most sand and rock sites with little ground movement from moisture changes' and was described by Marra as a stable non‑reactive foundation.
The performance requirement, with respect to walls and the classification of damage due to foundation movements, are found at Appendix B3 and Table C1 of Appendix C of AS28270.
Paragraph B3 of Appendix B states:
Performance Requirement with Respect to the Walls
It is acknowledged that minor foundation movements occur on nearly all sites and that it is impossible to design a footing system that will protect the house from movement under all circumstances. The expected performance of footing systems designed in accordance with the Standard is defined in terms of the damage classifications in Table C1, Appendix C.
Crack width is used as the major criterion for damage assessment, although tilting and twisting distortions can also influence the assessment. Local deviations of slope of walls exceeding 1.150 are undesirable. The assessment of damage may also be affected by where it occurs and the function of the building, although these effects are not likely to be significant in conventional housing. In the classification of damage, account should also be taken of the history of cracking. For most situations Category 0 of 1 should be the limit. However, under adverse conditions, Category 2 should be expected although such damage should be rare. Significant damage is defined as Category 3 or worse.
For Category 1 or 2 damage, remediation should consist of stabilizing the moisture conditions of the clay and paying attention to repairing or disguising the visual damage. This should be regarded as part of the normal maintenance of houses on reactive clays.
Even significant masonry cracking with crack widths over 5 mm often has no influence on the function of the wall and only presents an aesthetic problem. Generally, the remedial action for such damage should start with an investigation to establish the cause of the damage[.]
Table C1 of (Table C1) sets out the classification of damage with reference to walls and states:
Description of typical damage and require repair
Approximate crack width limit (see Note 3)
Damage category
Hairline cracks
< 0.1 mm
0
Fine cracks which do not need repair
< 1 mm
1
Cracks noticeable but easily filled.
Doors and windows stick slightly
< 5 mm
2
Cracks can be repaired and possibly a small amount of wall will need to be replaced. Doors and windows stick. Service pipes can fracture. Weather tightness often impaired
5 mm to 15 mm (or a number of cracks 3 mm or more in one group)
3
Extensive repair work involving breaking‑out and replacing sections of walls, especially over doors and windows. Window and door frames distort. Walls lean or bulge noticeably, some loss of bearing in beams. Service pipes disrupted
15 mm to 25 mm but also depends on number of cracks
4
Notes
1Crack width is the main factor by which damage to walls is categorized. The width may be supplemented by other factors, including serviceability, in assessing category of damage[.]
It was agreed that there were approximately 60 or so cracks throughout the house, but the experts differed significantly as to the reason for them, nor was there agreement as to the precise number.
For ease of reference, the Tribunal will refer to the total as being 60 cracks, although acknowledging that the true number may be slightly more or less than this.
As outlined above, Table C1 classifies cracks from 'Hairline' with a width of less than 0.1 millimetres as damage Category 0, all the way through to Category 4, being cracks of 15 to 25 millimetres in width requiring extensive repair work.
It was common cause, that of the 60 or so cracks in the house, only four were at damage Category 2 as per Table C1; that is, greater than 1 millimetre and less than 5 millimetres in width.
Of the 56 or so remaining cracks, all were less than 1 millimetre in width and at worst classified as damage Category 1, described in Table C1, as fine cracks which do not need repair.
Marra, in oral evidence, confirmed that of those Category 1 cracks, approximately 50% were due to foundation movements or differential settlement but he did not identify which were due to differential settlement and which were due to other causes, or a combination of causes, or what those other causes or combination of causes were, although normal shrinkage/settlement and plaster issues were suggested at various points during his oral evidence.
At point 1 on the second page of the joint statement of experts, they had agreed:
Marra agrees that internal cracking is considered minor expect at C2, Kara agrees that internal cracking is considered minor including at C2[.]
Marra contended that the width of the four Category 2 cracks, one of which was identified throughout as C2, and referred to above in the joint statement, were increasing, which in his opinion, was evidence that differential settlement was still progressing.
In the following table, on the front page of his report of 5 December 2013, Marra set out the details of those four cracks and the deterioration he contended had taken place. In his oral evidence, when discussing those cracks,he stated:
the four main cracks where we focus on, they are our main evidence.
(T: 105, 25.02.14)
| LOCATION | Measurement by Mr. Kara 2012 (1) | Measurement by Mr. Marra APR 2013 (2) | Measurement by Mr. Marra OCT 2013 (3) | ∆ mm (2)-(1) | ∆ mm (3)-(1) | |
| A | Rear crack (window at rear) | 1.40 mm | 1.54 mm | 1.90 mm | +0.14 | +0.50 |
| B | Front crack (above the garage opening) | 1.06 mm | 1.08 mm | 1.50 mm | +0.02 | +0.44 |
| C | Front crack (diagonal at pier right side) | <1.0 mm | 1.63 mm 0.5 m long | 2.00 mm 0.7 m long (**) | +0.63 | +1.00 |
| D | Internal garage (at double brick pillar right side) | Around 1 mm (*) | >2.0 mm 1.0 m long | >2.50 mm 1.5 m long (**) | +1.00 | +1.50 |
(*) As stated by Mr.Kara during the Tribunal hearing of 8-9 October 2012.
(**) See cracking observations below
The cracking observations referred to at (**) were contained at page 3 of Marra's report.
Immediately following that table on page 2 of Marra's report of 5 December 2013, under the heading 'Findings,' Marra states:
In our previous reports attached (P454.1 of April 2013 and P454 of July 2012), examination of engineering details and compaction test results revealed that the compaction of the sand on this site, at the foundation level on the right hand side, is below the recommended requirements of the engineering notes. This was identified as a below ground defect due to poor building construction practice. We therefore concluded that settlement of the structure has resulted in cracking to walls, in particular at the front, rear and right hand side of the house.
The compaction test results referred to by Marra were carried out by UTS, a geotechnical consulting company, which produced a certificate dated 19 January 2012 (as amended on 30 January 2012), which was before the Tribunal, together with a covering letter.
That certificate stated:
Assuming satisfactory engineering and building principles are used throughout construction of this building, the penetration test results indicate that the degree of compaction is at least 98% of practical maximum compaction based on method AS1289E2.1 to the proposed footing depth, and satisfactory over the remaining tested depth, to prevent any but normal accepted settlements, deferential or otherwise over the building area in question.
A note at the bottom of the certificate then states:
Points 1, 2, 7 and 8 need further compaction and/or stabilisation.
The cover letter, however, goes further and is somewhat contradictory in stating:
We would suggest that cracking occurring in the above residence is caused by the following:
•Lack of compaction of the sand pad (see attached results and exact location on the site map).
•Downpipe at the front right of the house is to be inspected to ensure it is performing adequately.
It should be noted from the Perth sand penetrometer results that the ground at the right side of the house appears to be of insufficient compaction.
The author of the letter appears to have been the same person who carried out the testing, a Mr K Clements, but he was not called as a witness. The Tribunal was therefore unable to raise any issue with him and, apart from accepting the certificate as accurate, any testing or clarification of his comments was not possible.
A report of a Mr Peter Williamson was also amongst the documents put up to the Tribunal, but no reference was made to it by either party and Mr Williamson was not called in order that any of the statements in his report could be tested.
An examination of the UTS test certificate appears to show that test points 1, 2, 7 and 8, referred to in the note at the bottom of the certificate are all on the right hand side of the dwelling. The other four test points (3, 4, 5 and 6) all appear to have achieved the eight blows per 300 millimetres required with a number reaching refusal. However, in the areas to the righthand side middle and righthand side rear of the dwelling, where tests points 7 and 8 were located, and which returned the lowest compaction readings, there was no evidence of any cracking that varied substantially from the cracks in other areas where adequate compaction results were returned.
The letter accompanying the UTS report suggests that the cracking was as a result of insufficient compaction, but it is not definitive and unfortunately, there were no other investigations carried out to conclusively link the cracking to differential settlement due to lack of compaction on the righthand side of the building.
No evidence was produced to show any footings were exposed, to measure or determine if there was any evidence of settlement patterns. No evidence was offered to show the walls were not plumb or whether any of the doors or windows were sticking.
No survey was completed to determine any tilting or distortion in the external or indeed any brickwork on the righthand side of the dwelling.
The following exchange between Marra and counsel for the applicant in crossexamination was noted:
Counsel for Applicant: Have you taken any measurements to ascertain whether there's any tilting or twisting of the wall on that right-hand side of the garage?
Marra: Well, actually, we did, but I didn't record it, well, using a spirit spirit level, and this all can be even be explained by the 2.5 millimetres up to the top of the pillar, that the external [lift] is is rotating this likely, while other the brick (indistinct) is a steel vertical.
Counsel for Applicant: But you've not recorded them anywhere that we can see?
Marra: Well, you can there are no it's a geometric. If you see something like that, someone has to (indistinct)
Counsel for Applicant: Yes. But there isn't any tilting or twisting in that area?
Marra: Because it's a more it's more tilting [or] the external [lift].
Counsel for Applicant: But you haven't reported that in your – any of your reports?
Marra: No.
Counsel for Applicant: And you haven't taken any levels of either the floors or the walls?
Marra: No. What I've done is all written down.
(T: 132133; 25.02.14)
However, without more detailed and specific evidence which could be properly tested, the Tribunal is not prepared to attribute significant weight to Marra's comments when the issue of tilting which he briefly touches on in his answer had not been mentioned at any time previously and he had every opportunity to deal with such an important issue in his reports and/or his witness statement.
Furthermore, no evidence was before the Tribunal that any vulnerable elements on the righthand side of the dwelling where one might expect issues if you had differential settlement, such as the two single leaf sections of the garage walls and the external leaf of the laundry were showing signs of distress. This was put to Marra who confirmed that there was no evidence of such distress.
Neither was there evidence before the Tribunal, of issues which might expect with differential settlement such as the brickwork hogging, sagging or arching over the footings.
In the Tribunal's view the comparative value of the Structerre certificate and the UTS certificate is limited. While on the lefthand side of the dwelling reasonable concurrence is evident in the compaction results, there was no attempt to explain the variance on the righthand side. As the experts stated in their joint report
There is no correlation of compaction test results between UTS and Structerre on the righthand side.
The two tests were completed approximately six years apart in different circumstances. The Structerre tests were undertaken on a vacant site immediately after the earthworks and compaction was completed. While the UTS testing was done six years after completion of the dwelling with no record of the activity that had taken place in the intervening period at the location of the tests.
It was noted that at paragraph 31 of his statement of evidence, Mr Famiano had stated 'I can confirm that to the best of my knowledge there is no major service or solid infrastructure located along the right hand side of the building with the exception of sewer access located on the South Eastern corner of the property', but that did not rule out all activity or intervention in that area.
In respect of the photograph dated 6 May 2005 which Marra stated clearly demonstrated that compaction did not occur at all approximately 500 and 600 millimetres to the right side of the property, Mr Faminao at paragraph 29 of his statement of evidence, had stated:
I took photographs of the sand pad approximately two days after Structerre carried out its Soils Compaction Test. This photograph is consistent with my observation that:
29.1The ground approximately 600mm inside the southern boundary was not compacted; and
29.2An area approximately 1.5m inside the southern boundary was improperly compacted on an angle, which I believe reduced its effectiveness.
Although a planner Mr Famiano is not to the Tribunal's knowledge a structural expert and he relied entirely on Marra in respect of expert engineering evidence regarding the lack of compaction and Marra appears to have relied on the Structerre test, the UTS test, his interpretation of the photograph of 6 May 2005 and his observations of the various cracks in the dwelling to reach his conclusions.
The fact that the compaction may be below the recommended level at a number of points does not automatically mean that differential settlement is occurring and is the cause of the cracking.
Marra's interpretation of the various matters in respect of the lack of compaction may be correct but the applicant's expert Kara was entirely at odds with Marra's contention and was of the strong view that there was no evidence of differential settlement or structural issues with the respondents' house and the minor cracking as he described it was due to normal shrinking and settlement.
Therefore, when making such a serious allegation, particularly when the only other expert is diametrically opposed as to the cause of the cracking, the Tribunal would expect more specific investigation and testing to confirm those allegations, particularly when such investigation and testing was possible.
In respect of the cracking itself accepting all of the figures in Marra's table set out earlier, what it confirms is, that after eight years, only four cracks fall within damage Category 2 of Table C1 and of the balance of 56 cracks Table C1, describes them as 'fine cracks which do not need repair'.
Indeed, even the four Category 2 cracks are described by Table C1 as 'cracks noticeable but easily filled'. Table C1 also notes in respect of Category 2 cracks that 'doors and windows may stick slightly' and although this was put to Marra he gave no evidence that was the case in the respondents' house.
A lot of reference was made to a crack in the southern wall of the garage located at a column or thickening of the wall to support the first floor reinforced concrete slab and to which was referred to throughout the proceedings as crack C2. It would appear to be the worst of the four Category 2 cracks and commences at the top of the column and ends part way down the column. However, there appeared to be no evidence of cracking at the base of the column or, indeed, no evidence of any crack in the adjacent floor slab.
No evidence was produced to indicate any structural element to crack C2, such as the brickwork being damaged although it is noted, that in oral evidence, Marra stated that he had pushed a steel ruler through the crack. However, that, of itself, could not be conclusive of anything other than there was a gap where the crack is located possibly in the mortar at the interface of the brick leave.
The crack in the front pier to the right of the garage entry appears to be confined to the external face as there was no evidence before the Tribunal to show otherwise and no evidence that the crack was visible on the internal face. There was no evidence that plaster was removed at any point to investigate if there was any damage to the underlying brick structure in respect of any of the four Category 2 cracks or indeed any of the other 56 Category 1 cracks for that matter.
Marra's contention that the cracks are continuing to open as per the figures set out in his table set out above and his observations at page 3 of his report of the 5 December 2013, are difficult to support without precise evidence to show that the measurements were on each occasion taken in the exact same location. Furthermore, with the rough nature of the render, if there is a small deviation from the position of the original measuring point, particularly when talking in measurements of a millimetre or less, it could, in the Tribunal's view, cause deviations such as those listed in Marra's table.
However even if the cracks are increasing as contended the principal issue to be dealt with is why are they increasing and what is the cause and as stated Marra contends that it is because of differential settlement due to lack of compaction on the righthand side of the house.
Paragraph B3 of AS2780 under the heading 'Performance Requirement with Respect to the Walls' set out earlier states amongst other things:
At paragraph 1
It is acknowledged that minor foundation movements occur on nearly all sites and it is impossible to design a footing system that will protect a house from movement under all circumstances. The expected performance of footing systems designed in accordance with the standard is as defined in terms of damage classifications in Table C, Appendix C.
And at paragraph 2
Crack width is used as the major criterion for damage assessment, although tilting and twisting distortions can also influence the assessment[.]
And, finally, at paragraph 4
Even significant masonry cracking with crack widths over 5 mm often has no influence on the function of the wall and only presents an aesthetic problem. Generally, the remedial action for such damage should start with an investigation to establish the cause of the damage[.]
The Tribunal notes that this site was a Class A site and as stated in the note under clause 1.3.of AS2870 a Class A site 'may have a lesser risk or damage' and although a total of 60 or so cracks may be argued in some cases depending on the cause to be a large number AS2870 only appears to refer to the number of cracks in damage Category 3 (when they are in a group) or damage Category 4 (see Table C1).
Paragraph B3 of AS28270 notes 'crack width is used as the major criteria for damage assessment, although tilting and twisting distortion can also influence the assessment' and note 1 under Table C1 states: 'crack width is the major factor by which damage to walls is categorised'.
The Tribunal notes the statement further down the second paragraph of B3 which states:
For most situations, Category 0 or 1 should be the limit. However, under adverse conditions, Category 2 should be expected although such damage should be rare. Significant damage is defined as Category 3 or worse.
However whether AS2870 has been complied with, is ultimately a matter for the Tribunal to determine and although a useful guide/standard by which to measure the performance of a structure and the evidence put before the Tribunal, as stated by the respondent in the closing submissions, it has no coercive effect.
As helpful as AS2870 is, what is paramount is the evidence that is put before the Tribunal to support the contentions made, which in the present case, is that the cracking of the respondents' home is caused by differential settlement due to the lack of compaction on the right-hand side of the dwelling.
Before setting out its findings in respect of the issue of cracking, a further issue that appeared to be raised for the first time in Marra's report of 5 December 2013, and in respect of which it was unclear whether it was a new matter or related to the question of cracking was corrosion of the lintels at the property.
In the last paragraph of page 3 of his report dated 5 December 2013, Marra stated:
It was also noted during the inspection that many lintels of the openings are rusting. Whilst the primary cause of the rusty lintels is that they are unprotected and have not been properly treated (see last section), in several instances lintels located where there is cracking and plaster/render separation would also be impacted by the continued exposure to the elements.
He discussed the lintels further at page 6 of that report and at 5.19 of his statement of evidence Marra stated in conclusion:
In my opinion, the corrosion shown by the [listed] lintels of the house is not acceptable for a new house and immediate works must be undertaken …
In essence apart from answers to questions put to Marra at the hearing that was what was put before the Tribunal in respect of corrosion to the lintels.
The issue of corrosion of the lintels does not appear to have ever been the subject of a complaint to the Building Commission and, as the Tribunal is only seized of matters referred to it by the Building Commission, the issue of corrosion of lintels if unrelated to the issue of cracking is not a matter that can be introduced in its own right at this stage.
Furthermore it formed no part of the proceedings before the Tribunal in November 2012, and apart from what is referred to above, there was very little evidence before the Tribunal in respect of it.
The issue of the cracking is the only matter that is under review and the respondents are not permitted to raise a new issue which is not related to cracking. But even if they were there would be an issue of procedural fairness as the applicant has had no reasonable opportunity to meet such an allegation.
The respondents would of course be entitled to file a fresh complaint with the Building Commission in respect of the lintels provided they were within the relevant time periods allowed by the BSCRA Act.
Therefore in respect of the lintels as it was not a complaint before the Building Commission and not referred to the Tribunal by the Building Commission a complaint regarding corrosion of the lintels as a separate issue cannot now be introduced by the respondents and the Tribunal will treat the corrosion and evidence with respect to it as raised by Marra as irrelevant except in so far as it any relates to the issue of cracking.
In respect of the complaint of cracking unfortunately, other than the matters relied on by Marra to reach his conclusion no further investigation or testing to determine the cause of the cracking was carried out or put before the Tribunal.
This in the Tribunal's view is critical in the present case when such investigation was both possible and feasible in circumstances when an allegation as serious as differential settlement due to the lack of compaction was being made and where the Tribunal was faced with two experts completely at odds as to the cause of the cracking.
As outlined earlier, there was a lack of testing in respect of the cracks and their extent, and in respect of the foundations, footings were not exposed to measure and/or determine any settlement patterns; no survey was completed to measure and report any distortion in either the internal or external brickwork; no evidence was offered to show any of the walls were not plumb or any of the doors or windows were sticking; and there was no evidence of things such as sagging, hogging or arching over the footings which you might expect if differential settlement was an issue in a house that was completed nearly eight years ago.
In reaching its findings, the Tribunal has taken into account all of the evidence before it, and the view undertaken on the morning of the hearing was of great assistance in understanding the evidence.
A person who makes a complaint under the BSCRA Act is required to establish on the balance of probabilities the existence of each of the facts that go to prove their case and in the present matter, differential settlement due to the lack of compaction was the only reason put forward by the respondents as the cause of the cracking in this house.
However to reach that conclusion the Tribunal requires evidence on which to base its findings and the respondents have not produced the evidence necessary to prove to the satisfaction of the Tribunal that the cracks in the dwelling, are as a result of differential settlement due to a lack of compaction.
Finally, as the respondents based their entire case on the fact that the cracking was the result of differential settlement of the foundations due to lack of compaction, and no evidence alluding to, or suggesting any other cause, was put before the Tribunal, even if the Tribunal was of the view that the cracking was unsatisfactory there is no evidence on which the Tribunal could rely on to base a finding as to its cause and that the cause was the responsibility of the builder.
Therefore for all of the reasons outlined above, the respondents have failed to make out their case and the Tribunal is not satisfied on the evidence presented to make the findings or orders requested.
In the circumstances the orders of the Tribunal dated 23 November 2012, other than order 3, will be set aside and an order that the Tribunal declines to make a building remedy order in respect of the respondents' complaint of cracking will be substituted. The respondents' application will be dismissed.
Orders
The Tribunal makes the following orders:
1.The Orders of Tribunal dated 23 November 2012 in CC 952 of 2012 other than order 3 are set aside and the following orders are substituted for them.
2.The Tribunal declines to make a building remedy order in respect of respondents' complaint of cracking.
3.The respondents' application is dismissed.
I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, SENIOR MEMBER
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