ATKINSON and RIO VISTA PTY LTD TRADING AS FREEDOM POOLS AND SPAS - [2012] WASAT 116

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)

CITATION: ATKINSON and RIO VISTA PTY LTD TRADING AS FREEDOM POOLS AND SPAS [2012] WASAT 116

MEMBER: MR S ELLIS (SENIOR SESSIONAL MEMBER)
MR J FISHER (SENIOR SESSIONAL MEMBER)

HEARD: 1 MAY 2012

DELIVERED : 5 JUNE 2012

FILE NO/S: CC 365 of 2012

BETWEEN: COLIN ATKINSON
Applicant
AND
RIO VISTA PTY LTD TRADING AS FREEDOM POOLS AND SPAS
Respondent

Catchwords:

Defective work - Building remedy order - Section 38(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA)

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 7(1), s 11(1)(d), s 38, s 38(1), s 38(1)(a), s 38(1)(b), s 38(1)(c)

Result:

Application successful
Form of orders to be determined

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr M Cockle and Mr J Traynor (Acting as Agent)

Solicitors:

Applicant: Self-represented
Respondent: Freedom Pools and Spas

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

These proceedings concern a below ground pool which the respondent had supplied to the applicant and his wife, and had installed at their home in June 2010. About a year later the pool failed. After heavy rain the pool rose about 10 centimetres out of the ground.
The Tribunal found that the building service provided by the respondent was not carried out in a proper and proficient manner or was faulty or unsatisfactory within s 38 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), in that the pool was installed too low into the ground with an extremely high water level. This had the consequence that the water level in the ground surrounding the pool could readily be higher than the water level inside the pool in normal operating circumstances and within the normal range of weather conditions. Although the applicant removed water from the pool shortly prior to the failure of the pool, his actions were in accordance with reasonable operation and maintenance of the pool.
The Tribunal concluded that a home remedy order should be made under s 38(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA), but that the matter should be adjourned to a further directions hearing to enable the particular form of remedy order to be ascertained.

Introduction

On 3 June 2010, Mr Atkinson (applicant) and Mrs Atkinson entered into a contract with Rio Vista Pty Ltd trading as Freedom Pools and Spas (respondent) for the supply and installation by the respondent of a below ground pool at their home in Byford. The price was $26,790. The pool was installed in June 2010.
In July 2011, after some substantial rains and after the applicant had lowered the water level in the pool by about 100 millimetres, the pool rose about 100 millimetres out of the ground, ruining the surrounding landscaping. Mr and Mrs Atkinson were subsequently advised not to use the pool because of damage to the electrical and plumbing system of the pool.
The applicant seeks a remedy order under s 38(1)(a) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Resolution Act).

Issues

The issues for the Tribunal are:
1)Was the building service provided by the respondent:
(i)not carried out in a proper and proficient manner; or
(ii)faulty or unsatisfactory,
within s 38(1)(a) of the Resolution Act?
2)If so, what order should be made under s 38 of the Resolution Act, if any?

Procedural background

The applicant made a complaint about the pool to the Building Commission on 20 December 2011. The complaint was accepted by the Building Commission under s 7(1) of the Resolution Act, and investigated.
On 27 February 2012, an authorised investigator made a report recommending referral of the matter to this Tribunal under s 11(1)(d) of the Resolution Act. The matter was referred to the Tribunal the same day.
The matter was heard on 1 May 2012. Neither party was legally represented. Mr and Mrs Atkinson provided information to the Tribunal informally during the course of the hearing, as did Mr Cockle and Mr Traynor, employees of the respondent, who represented the respondent. The applicant was questioned by Mr Cockle on behalf of the respondent. The applicant did not call any expert evidence, but did tender a letter from Scott and Associates, a firm of consulting engineers, dated 13 March 2012. Mr Berry, an engineer, gave oral evidence on behalf of the respondent. A report from the firm of which he is the principal, dated 3 April 2012, was tendered by the respondent. Mr Berry was questioned about his evidence by Mr and Mrs Atkinson.

Background

There was no dispute between the parties about the following:
a)The pool had been constructed in heavy clay soil, which was typical of the Byford area, but uncommon in the Perth metropolitan area.
b)The contract stipulated a datum point of the level of the decking at the back of Mr and Mrs Atkinson's house (decking). The top surface of the pool was to be set 50 millimetres below this datum point.
c)On the day the pool was to be installed, the applicant requested that the pool be installed at a lower level. The new level for the top surface of the pool was 450 millimetres lower than originally planned, or 500 millimetres below the datum level of the decking. The installer engaged by the respondent complied with this request.
d)The failure occurred in July 2011. Mr and Mrs Atkinson were not sure of the date.
e)Prior to the failure, there had been heavy rainfall at Mr and Mrs Atkinson's home. Although the rainfall was heavy, it was not exceptional or completely out of the ordinary.
f)Shortly prior to the failure, the applicant had removed water from the pool. It is not clear how much water the applicant removed, but it was less than 20 centimetres. It was accepted that he could not have lowered the water level below the bottom of the skimmer because the pump was fed by water from the skimmer and that the skimmer was about 20 centimetres high.
There was substantial agreement between the report from Scott and Associates and the evidence of Mr Berry about the mechanism by which the pool was raised. Both accepted that the sand surrounding the pool had become saturated as a result of the rain. This would not have occurred if the natural soil in the area had been sandy and free draining, but the soil at Mr and Mrs Atkinson's house was clay, which did not readily absorb water, and prevented the sand surrounding the pool from draining. Although paving was placed around the outside of the pool during installation, the sand surrounding the pool beneath the paving could readily become saturated, which appears to have happened on this occasion. When water was removed from the pool by the applicant, the upwards pressure from the water in the saturated sand outside the pool was greater than the downwards pressure exerted by the water in the pool, and the pool, in effect, floated up in the groundwater.

Was the building service defective?

While there was agreement between the parties about the mechanism by which the failure occurred, there was disagreement about who was to blame for the failure. The respondent identified three reasons why Mr and Mrs Atkinson were responsible for the failure of the pool.
First, the respondent argued that Mr and Mrs Atkinson were responsible for the failure because:
a)the applicant had removed water from the pool; and
b)it was not appropriate to remove water from the pool during winter.
In support of the contention that it was not appropriate for the applicant to have removed water from the pool, the respondent provided a copy of a brochure published by the Western Australian Branch of the Swimming Pool and Spa Association (SPASA), which contained information for pool users. Page 19 of the brochure contains the following:
Should I Empty My Pool?
Swimming pools, as a general rule, should not be emptied. If you think your pool needs to be emptied, CHECK WITH YOUR POOL BUILDER OR LOCAL S.P.A.S.A. MEMBER POOL SERVICE PERSON BEFORE DOING ANYTHING! (Emphasis in original)
The brochure went on to warn about the serious consequences of failing to heed this warning. Mr Berry provided a copy of a set of guidelines apparently issued by the respondent to some owners of pools located on 'reactive (clay) soils'. These guidelines also warned:
The pool should not be emptied after winter period when natural soil moisture content is at its highest.
Mr Berry also asserted in his letter of 3 April 2012 that it is the standard practice of the installer to provide a handbook for pool and soil management, with a DVD, to each owner, which specifically refers to clay sites and states that 'lowering the pool water during high water table events should not be carried out without referring to the manufacturer'.
There are a number of difficulties with this argument:
1)Mr and Mrs Atkinson stated, and the Tribunal accepts, that they did not receive the brochure or the guidelines from the respondent. Mr and Mrs Atkinson admitted that they received a DVD from the respondent dealing with maintenance of the pool. They provided the DVD to the Tribunal and the Tribunal watched it. The DVD does not contain any warning similar to that contained in the brochure or the guidelines.
2)The brochure and the guidelines warn about emptying the pool. They do not warn about the dangers of lowering the water level in the pool slightly. Emptying the pool is quite different from lowering the water level slightly. Mr and Mrs Atkinson did not 'empty' the pool.
3)Mr and Mrs Atkinson provided copies of information sheets published by the New South Wales and Victorian equivalents of SPASA, which suggest that the water level in a pool should be maintained about halfway up the skimmer box. A guide sheet issued by the Western Australian Department of Water suggests that the water level should be reduced during winter to deal with 'storm events', and that a 25 centimetre freeboard is appropriate. While Mr and Mrs Atkinson did not have the benefit of these information sheets at the time of the failure, the information sheets show that Mr and Mrs Atkinson's conduct was not inconsistent with general pool maintenance practices. The level to which the applicant lowered the water was not extraordinary or inappropriate, and ought not to have resulted in failure of the pool.
The Tribunal considers, therefore, that this argument must be rejected.
Secondly, the respondent argued that the failure was caused by the design of the landscaping in the pool area. It said that the design was such that rain falling on the paved area surrounding the pool ran towards the pool area where it saturated the sand surrounding the pool, raising the water level in the sand surrounding the pool.
The Tribunal does not accept that the landscape design was a significant factor in the failure. Mr Berry's report contains a diagram indicating the direction of the fall in the paving surrounding the pool. In some areas, the fall is away from the pool itself. In other areas, the fall is towards the pool. Photographs of the landscaping were provided to the Tribunal. The landscaping was not obviously defective. Further, some water falling on to the paving area would inevitably seep into the ground.
Thirdly, the respondent asserted that Mr and Mrs Atkinson were responsible for the failure because:
a)the pool was built too low into the ground; and
b)Mr and Mrs Atkinson lowered the top level of construction of the pool on the day of installation from 50 millimetres below the decking to 450 millimetres below the level of the decking.
The Tribunal accepts that the pool was built too low into the ground. Photographs tendered in evidence show that the pool area was roughly level with the surrounding ground. It was accepted by the parties that the groundwater level within the pit excavated for the pool would rise almost to the surface in periods of wet weather, such as that experienced in July 2011. With the top level of the pool effectively at ground level and no way for the groundwater to escape from the clay lined pit, the groundwater could come all the way up the side of the pool, creating a situation in which the risk of failure was greatly increased. Conversely, the house and decking were built on a sand pad raised above the level of the surrounding ground. If the ground in the pool area had been built up sufficiently for the top of the pool to be only 50 millimetres below the level of the decking, then the top of the pool would have been about 400 millimetres 500 millimetres above the level of the surrounding ground, and about 400 millimetres 500 millimetres above the maximum level of the groundwater. So long as the built up material was itself free draining, it would not have been possible for groundwater to come up to the top of the pool. Lowering the level of the water in the pool within normal operating parameters would then not have resulted in the pool being raised from the ground.
It is implicit in this argument that the pool, as installed, was faulty or unsatisfactory, because it was liable to be lifted from the ground by use within normal operating parameters and within normal weather conditions.
The Tribunal accepts that it was Mr and Mrs Atkinson who requested that the pool level be varied. The Tribunal does not accept, however, that this absolves the respondent from responsibility for the failure of the pool. Variation of the pool level specified in the contract was a matter of agreement between the parties. The respondent could have refused to vary the pool level, but did not. The respondent's installer agreed to vary the pool level and then carried out the work of installing the work at the varied level. There was no suggestion that Mr and Mrs Atkinson were warned about the consequences of installing the pool 450 millimetres below the decking datum. Mr and Mrs Atkinson indicated that they had no objection, in principle, to installation of the pool at the higher level.
The question for determination by the Tribunal is whether the building service provided by the respondent, namely, the installation of the pool 450 millimetres below the datum, was 'not carried out in a proper and proficient manner' or was 'faulty or unsatisfactory'. The Tribunal considers that the installation was not carried out in a proper and proficient fashion and was faulty or unsatisfactory because it was too low, given the lack of any drainage arrangement to dissipate the surrounding groundwater pressure, and was liable to be lifted from the ground by use within normal operating parameters and within the normal range of weather conditions.
In his letter of 13 March 2012, Mr Scott, the applicant's expert, asserted that the respondent was negligent, because the respondent did not install a hydrostatic valve in the bottom of the pool. A hydrostatic valve is a small oneway valve in the bottom of a pool which allows water to enter the pool when the pressure under the pool becomes greater than that within the pool. Mr Scott considered that a hydrostatic valve would have relieved the pressure under the pool before the pool failed. Mr Berry accepted that installation of a hydrostatic valve would have prevented the failure. However, Mr Berry contended that hydrostatic valves were not commonly used in Western Australia, even in pools installed in clay soil rather than in sand. He said that the water which entered the pool through the hydrostatic valve was often unsavoury and potentially unhealthy. He also said that it was easy for grains of sand to become jammed in the valve, preventing it closing, so that pool water tended to drain into the ground when the valve should have closed.
The Tribunal accepts that a hydrostatic valve would have prevented the failure. However, it also accepts that use of a hydrostatic valve would have had undesirable side effects and would not have been an ideal solution to the problem. The real problem was that the pool was installed too low into the ground. If the pool had been installed at an appropriate height, there would have been no need for a hydrostatic valve. The Tribunal concludes that the fundamental problem with the building service provided by the respondent was that the pool was installed too low, not that the pool lacked a hydrostatic valve. It is the height of the pool to which any remedy should be directed.

What order should be made, if any?

For the reasons given above, the Tribunal considers that the building service provided by the respondent was not carried out in a proper and proficient manner, or was faulty or unsatisfactory. The Tribunal must now consider what 'building remedy order' should be made, if any.
Section 38(1) of the Resolution Act provides:
If the Building Commissioner refers a building service complaint to the State Administrative Tribunal, the Tribunal may -
(a)if the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, deal with the building service complaint by making a building remedy order; or
(b)otherwise, decline to make a building remedy order.
Mr and Mrs Atkinson asserted that the pool was not designed for use in clay soils, because the plans submitted by the respondent to the local council, and signed by Mr Berry, state that the pool is constructed in accordance with AS1839 for installation in sand, sandy silt and slightly reactive clay. Mr Berry gave evidence that the plans were generic plans for below ground pools, which he signed in bulk, rather than plans directed towards the specific circumstances of the site. The respondent indicated that the pool was, in fact, adequate for the site, with the more frequent ribbing used in pools to be installed in reactive soils. The respondent also indicated that the pool had not cracked during the failure. There was no suggestion in Mr Scott's report that the pool, as a whole, was unsuited for installation in clay soils (apart from the issue with the hydrostatic valve) or that the pool was cracked. It is not necessary, therefore, for a new pool to be provided. Mr and Mrs Atkinson are entitled to have the existing pool reinstalled at an appropriately designed level. This is the solution proposed by Mr Berry in the Appendix of his report dated 3 April 2012.
The consequences of the defective building service include the damage caused to the landscaping around the pool. Mr and Mrs Atkinson contended, and the respondent did not dispute, that the landscaping would need to be redone, either as a consequence of the failure of the pool or as a consequence of reinstalling the pool. 'Remedy' in s 38(1)(a) and s 38(1)(b) of the Resolution Act should be given a broad interpretation and would, in appropriate cases, include carrying out work necessary to restore the consequences of remedial work.
In the present case, however, the respondent did not carry out the landscaping work and does not profess to have expertise in that field. Mr and Mrs Atkinson provided two quotes for the cost of relandscaping the pool surrounds from specialist landscapers. One quote was for $29,800. The other quote was for $26,554, and was from the contractor originally engaged by Mr and Mrs Atkinson to carry out the landscaping work. The landscaping contractors do not have expertise in installing pools and Mr and Mrs Atkinson did not provide any quotations for the cost of replacing the swimming pool. There had been discussions between the parties, in which the respondent had offered to replace the swimming pool, but no more. In light of the limited expertise of both the respondent and the landscapers, it would be preferable for the respondent to carry out the work of reinstalling the pool and for a specialist landscaper to carry out the landscaping work around the pool. However, the Tribunal cannot make an order to this effect, because the remedies identified in s 38(1)(a), s 38(1)(b) and s 38(1)(c) of the Resolution Act are alternatives, only one of which the Tribunal can order. They cannot be ordered in combination with each other. The Tribunal cannot order the respondent to reinstall the pool and order the respondent to pay the costs of remedial landscaping.

The Tribunal is not in a position to make an order under s 38(1)(c) of the Resolution Act because it has not been provided with evidence of the costs of reinstalling the pool.
What the Tribunal will do is this. It will program a directions hearing for a date approximately six weeks from the date of this decision. If, during that period, Mr and Mrs Atkinson and the respondent have made mutually acceptable arrangements for the respondent to reinstall the pool at the original height, then the Tribunal will make an order for compensation in the amount of $26,554 in respect of the landscaping work and will make no order in respect of the costs of reinstalling the pool. If, during that period, no arrangements have been made for the respondent to reinstall the pool, the Tribunal will make directions enabling the applicant to provide evidence as to the cost of having the pool reinstalled by third parties, with a view to making an order under s 38(1)(c) of the Resolution Act for payment of the cost of reinstalling the pool, together with the cost of relandscaping the area surrounding the pool. The intention of these orders is to allow the respondent an opportunity to carry out the work of reinstalling the pool, if that is acceptable to the applicant.

Disposition

The matter will be adjourned to a date to be determined by the Tribunal in consultation with the parties.

I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR S ELLIS, SENIOR SESSIONAL MEMBER