Austin v Queensland Building and Construction Commission - [2024] QCAT 352

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Austin v Queensland Building and Construction Commission [2024] QCAT 352

PARTIES:

KATE AUSTIN

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO:

GAR003-22

MATTER TYPE:

Tribunal Hearing

DELIVERED ON:

27 August 2024

HEARING DATE:

2 July – Submissions completed 20 August, 2024

HEARD AT:

Brisbane

DECISION OF:

Judicial Member WA Isdale

ORDERS:

1.     The respondent’s decision is set aside.

2.     The Tribunal substitutes its own decision.

3. The builder, Cummins Constructions Pty Ltd, trading as GJ Gardner Homes - Gold Coast North is directed to rectify the building work, namely the retaining walls at the rear of the applicant’s house at 23 Colin Meagher Road, Wongawallen, Queensland, 4210 in accordance with the Enforcement Notice dated 9 March, 2022 under s 168 of the Planning Act 2016 and the Enforcement Notice dated 9 March, 2022 under s 248(1) of the Building Act 1975. Both enforcement notices were issued under the authority of the Chief Executive Officer, Council of the City of Gold Coast.

4.     The builder is also directed to remediate all consequential damage so that the work complies with all legal requirements such as Engineer design and certification and Council approvals.

5.     These directions must be carried out within the period of 35 days from their making on their pronouncement in this Tribunal.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant made a compliant to the Queensland Building and Construction Commission in relation to building work – where the respondent did not issue a directive to rectify or remedy work – where the applicant applied to have building work rectified – whether the Queensland Building and Construction Commission erred in its decision not to issue a directive to the builder

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACT – where a two-tiered rock retaining wall was constructed by the builder – where a landslip has occurred – where the local authority has issued enforcement notices to the applicant requiring compliance with the building statutory regime – where retaining wall is non-compliant with building statutory regime – whether non-compliance with building statutory regime equates to defective building work

Building Act 1975 (Qld), s 248(1)

Building Regulation 2021 (Qld)
Planning Act 2016 (Qld), s 168
Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 87
Queensland Building and Construction Commission Regulation 2019 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 20, s 24

APPEARANCES & REPRESENTATION:

Applicant:

K Austin, Self-represented

Respondent:

T Jones, In-house lawyer for the Queensland Building and Construction Commission

REASONS FOR DECISION

Background

The applicant owns the property described as 23 Colin Meagher Road, Wongawallen, 4210.
The applicant has applied to this Tribunal to review the decision of the Queensland Building and Construction Commission (QBCC), the respondent, dated 9 August, 2021 not to direct the builder to rectify or remedy works carried out for the applicant and Bradley Evans (the owners) at 23 Colin Meagher Road, Wongawallen.
The parties have supplied the Tribunal with a Hearing Book containing the written material which they wish to be considered and at the hearing evidence was given by and called on behalf of the applicant and evidence was given by witnesses called by the respondent.
The Tribunal, by s 17 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), is able to deal with this matter due to s 87 of the Queensland Building and Construction Commission Act 1991 (QBCC Act).
Under s 24 of the QCAT Act, the Tribunal may confirm or amend the decision, set it aside and substitute its own decision, or set the decision aside and return the matter to the decision-maker with appropriate directions.

The scope of the dispute

On behalf of the respondent, it was stated at the hearing that it would act as a model litigant and use its best endeavours to assist the Tribunal to arrive at the correct and preferable decision. It would not take an oppositional, adversarial approach nor would it represent the builder.
It is not in dispute that building work was carried out for the applicant by the builder, Cummins Constructions Pty Ltd trading as GJ Gardner Homes - Gold Coast North.
It is also not disputed that in accordance with s 20 of the QCAT Act, the Tribunal must proceed by way of a fresh hearing on the merits in order to produce the correct and preferable decision.
Section 72 of the QBCC Act allows the QBCC to direct the person who carried out building work which is defective or incomplete to rectify it and remedy consequential damage. The QBCC must take all of the circumstances into account in deciding whether to give the direction and is not required to give the direction if it is satisfied that it would be unfair to do so.
The QBCC has a policy that a building contractor who carries out defective building work should be required to rectify it. Defective building work, for the purposes of that policy, is work that does not comply with the Building Act 1975, the Building Code of Australia or an applicable Australian standard.
The QBCC submitted that the applicant’s complaint related to 9 items:
(a)Movement of two sandstone block retaining walls at the rear of the house.
(b)Landslip/subsidence at the rear of the house behind water tanks.
(c)Water tank overflow pipes damaged.
(d)Land subsidence with a sinkhole over 1 m deep.
(e)Other sinkholes at the rear of the property.
(f)Drainage pipes not working.
(g)Drainage pipes not adequate.
(h)No drainage behind the sandstone walls.
(i)Drainage and wastewater system behind the house has failed.
It was not in dispute, and the respondent submitted, that the builder was engaged to construct the work, being a dwelling and including a retaining wall and that the work done at the site amounts to building work. It was also not disputed, and submitted on behalf of the respondent, that the retaining wall structure has moved.
In relation to the 9 matters of the complaint, the respondent’s position is as follows:
(a)The work was defective. The respondent attributed this to landslip rather than due to defective work.
(b)The defect was due to the landslip and not defective building work.
(c)The damage was due to movement of the sandstone walls caused by landslip rather than being due to defective work.
(d)Caused by landslip.
(e)Caused by landslip.
(f)The drainage pipes now operate effectively and there is no evidence of defective building work.
(g)The pipes operate but are inadequate in heavy rain. As the contract does not cover all water flow above the sandstone walls there was insufficient evidence of defective building work.
(h)This is a contractual dispute about drainage behind the walls and in any event the walls would have failed anyway due to landslide and soil instability.
(i)This is also said to be due to landslide and soil instability, not defective building work.
The terms “landslip” and “landslide” were used interchangeably in the proceeding. In this decision, they are generally used as they appeared in the material and the transcript at the point being referred to. Nothing turns on this.
The respondent submits that the builder did the work in accordance with the approved plans and that due to heavy rainfall, the landslip caused the damage, not defective building work. It observes that on the evidence the lack of geofabric behind the wall and agricultural drainage pipe were not relevant as the landslip was not caused by these deficiencies.
The respondent submits that its decision, given on 9 August 2021, not to issue the direction sought by the applicant should be confirmed.

The hearing

The applicant stated that –
“We chose GJ Gardner, Helensvale North, because on their advertising they proclaimed that they were sloping site specialists.”[1]
[1]T 1-10, lines 6 to 8.
The applicant described the retaining wall structure as a gravity rock wall of two tiers.[2] She contacted the respondent when she noticed movement of the wall. It was part of the building contract.[3] The applicant described her response to the problem, which included informing the respondent and engaging geotechnical engineers.
[2]T 1-10, lines 24 to 25.
[3]T 1-10, line 34.
The first witness called by the applicant was Mr James Tayler, a civil engineer who has been practising as a registered engineer for over 40 years.[4] He has inspected the property.[5] He has prepared what is referred to as an “extended site memo”.[6] He did not perform soil testing.[7]
[4]T 1-20, lines 28 to 35.
[5]T 1-20, lines 42 to 43.
[6]T 1-21, lines 12 to 17.
[7]T 1-21, lines 23 to 24.
Mr Tayler stated under oath that what had occurred was a landslide, the soil lost strength and collapsed.[8] He explained that the cut for the building work assisted the landslide[9] and that the soil strength would be reduced by the water getting into the substrate.[10]
[8]T 1-27, lines 23 to 25.
[9]T 1-27, line 29.
[10]T 1-27, lines 30 to 31.
Mr Tayler was of the opinion that this land should not have been built on.[11] He stated that the wall was not approved by the Council or the certifier because, as far as he could ascertain, it was less than one metre high.[12] In his view, due to the slope behind the wall, it should not have received a certifier’s approval.[13]
[11]T 1-28, lines 21 to 22.
[12]T 1-28, lines 36 to 39.
[13]T 1-28, lines 41 to 42.
In cross-examination, Mr Tayler agreed that the problems with the walls are due to landslide issues and incorrect soil classification rather than defective building work.[14]
[14]T 1-34, lines 19 to 22.
Mr Tayler was of the opinion that as a report by geotechnical engineers Cardno Bowler concerning the land mentioned moderate risk this should have been a red flag. Cardno Bowler had conducted a broadscale geotechnical and slope investigation of this area, known as Timberview Estate.[15]
[15]Hearing Book p 632.
Mr Tayler confirmed his opinion that landslide issues resulted in the wall moving.[16] Also, because the wall has been installed the cut has knocked the “toe” out of the slope which has generated a landslide.[17]
[16]T 1-35, lines 4 to 9.
[17]T 1-35, lines 4 to 15.
He accepted that the sandstone wall was adequately constructed.[18] However, a stronger, engineered wall, should have been put there instead.[19]
[18]T 1-35, lines 31 to 33.
[19]T 1-35, lines 39 to 46.
Mr Tayler found no defect in the building of the wall that was there. The defect was that what was to go there should have been designed by an engineer.[20]
[20]T 1-36, lines 16 to 47.
The applicant gave evidence, making clear that she had trusted the builder to do the right thing. She had not caused the failures but had been left with them.[21]
[21]T 1-40, lines 8 to 25.
In cross-examination, the applicant stated that the owners had provided the Cardno Bowler report and a site stability report by geotechnical experts Core Consultants to the builder. A detailed contour survey plan was also provided.[22]
[22]T 1-45, lines 22 to 27.
This was all provided prior to signing the contract.[23]
[23]T 1-45, lines 26 to 27.
The building plans were certified by GMA Certification and the building approval application had been lodged with the council.[24]
[24]T 1-45, lines 48 to 49.
The applicant complained about the defective work items about 15 months after the building reached practical completion.[25]
[25]T 1-47, lines 41 to 43.
The applicant pointed to the wastewater disposal system which distributes water from the household sewage system into the soil above and behind where the wall is located as being relevant.
The respondent called Mr Robert Macdonald Hughes to give sworn evidence. Mr Hughes is a civil, structural and geotechnical engineer.
Mr Hughes had reviewed the written material.[26] He has never been on the site.[27]
[26]T 1-54, lines 35 to 37.
[27]T 1-54, lines 45 to 47.
He expressed the opinion that –
“… The retaining walls in question, … are merely passengers on a land slip. The land slip has caused the retaining walls to fail, not the other way around.[28]
[28]T 1-55, lines 4 to 6.
Mr Hughes was of the opinion that the failure was not a matter of defective construction by the builder and that it would be manifestly incorrect to hold the builder responsible.[29]
[29]T 1-55, lines 11 to 16.
In cross-examination, Mr Hughes stated that the basic fault is water penetrating the slope which caused the landslide.[30] He repeated that he had not been to the site.[31] He had relied, in part, on the report of Mr Ambrose Nicolson, an inspector in the employment of the respondent. Mr Nicolson is not an engineer.[32]
[30]T 1-55, lines 32 to 34.
[31]T 1-56, line 8.
[32]T 1-56, lines 10 to 18.
Mr Hughes stated that it would always be his preference to visit a site.[33] He agreed that the wastewater getting into the slope above the house is a contributing factor to the landslip.[34] He expressed the opinion that the house is in substantial danger.[35] If he was in the applicant’s position, Mr Hughes stated that he would feel “… a bit frightened, and I would take every step I could to divert water away from the slope above [the] house”.[36]
[33]T 1-56, lines 43 to 44.
[34]T 1-57, lines 3 to 5.
[35]T 1-57, lines 10 to 11.
[36]T 1-57, lines 18 to 20.
In response to questions from the Tribunal, Mr Hughes stated that the purpose of the retaining wall is to stabilise or retain the slope. The walls are holding back the vertical faces of earth created by the cut.[37] The distance between the two faces, laterally, he believes, is “ … something like a metre.”[38]
[37]T 1-58, lines 1 to 6.
[38]T 1-58, lines 8 to 9.
Mr Hughes was of the view that the walls should have been engineer designed but were not.[39] The system which distributed sewage water above the walls was built by the builder as part of the building contract.[40]
[39]T 1-58, lines 34 to 38; T 1-59, lines 36 to 37.
[40]T 1-59, lines 4 to 5.
The Tribunal asked Mr Hughes how, if the walls were required to be engineered and were not, they could be said to be properly built? He replied that this was irrelevant as landslip had taken the walls down, toppled them.[41]
[41]T 1-59, lines 33 to 46.
Mr Hughes, when further questioned, clarified that the walls were still there but had moved significantly.[42] He said that he had not visited the site because the respondent had not asked him to do so.[43] He believes that he had sufficient information to form an opinion on what happened.[44]
[42]T 1-60, line 11.
[43]T 1-59, lines 26 to 28.
[44]T 1-59, lines 30 to 31.
Mr Hughes was of the opinion that the retaining wall would have remained stable had there not been any landslip.[45] He expressed the view that it is irrelevant whether the walls were engineer designed at all; failure was caused by a landslip, which was beyond the builder’s control.[46] The landslip was caused by water from rain and the sewage water system installed by the builder.[47]
[45]T 1-62, lines 44 to 45.
[46]T 1-64, lines 15 to 18.
[47]T 1-64, lines 16 to 47.
The respondent called its building inspector Mr Ambrose Nicolson, who gave evidence by way of a video link. Mr Nicolson has a background as a carpenter and has had a building licence for a lengthy period. He has inspected the subject property.
Mr Nicolson came to the view that there was a significant lack of maintenance above what he described as “two retaining walls”.[48] That lack of maintenance, he said –
“ … caused me to believe that the small retaining walls that were there at the bottom near the house were only, really, a landscaping wall to actually hold back the soils possibly just a metre behind it, and no more.[49]
The Tribunal does not accept that this conclusion could be properly reached on the basis expressed.
[48]T 1-70, line 42.
[49]T 1-71, lines 1 to 3.
Mr Nicholson noted that the grass should be kept cut low in the area of the effluent discharge and it was “quite high”.[50]
[50]T 1-71, lines 10 to 16.
He repeated his belief that –
“ … the retaining walls that were put there as landscaping … “[51]
[51]T 1-73, lines 39 to 40.
He added that –
“ … there was more that needed to be retained on either side of the existing retaining walls that were put in.[52]
[52]T 1-73, lines 41 to 42.
Further into cross-examination by the applicant, the following was recorded –
MS AUSTIN: So as mentioned, you’re a building – qualified builder?‑‑‑Yes.
What would you – if you were appointed as the builder, with all the relevant information that was provided to you prior to the contract being signed and the finalisation of the design of the house and the property itself, what do you feel would have been – – –?‑‑‑That’s – – –
– – – appropriate or fit – – –?‑‑‑Okay.
– – – for purpose there?‑‑‑Okay. Well, under – under the contract, with the $5000 for the retaining wall that was built, I believe that would’ve been sufficient, so long as the rest of the reports that were submitted with – to the homeowner, as being the Carlo (sic) report, which actually states about the land and the water and the diversion of water to be done, if that was to be included in my contract, I would’ve allowed at least another 100,000 or possibly 80,000 to retain the whole hill above the landscaped area, which was only sufficient for the house to be put on the site where it was, and that 80 to 100 hundred (sic) thousand, similar to the other homes in the street, I would’ve allowed to [indistinct] the hill, make the HSTP area probably much more flatter and been able to cope with the drainage of the 20 or 30 metres behind the existing landscaping walls. And I would’ve built it to the Carlo’s (sic) report.
So why do you think the builder that I contracted didn’t do that or suggest it to me prior to signing a contract?‑‑‑Well, the retaining walls, as I was told, were for $5000, as a landscaping ability to be able to put the house where it had to be. It was not to deal with all the land problems that exist on that block of land that was purchased or the owner of that land to build it to the Carlo (sic) report. It was – there was no design – no engineering design to fit for the Carlo (sic) report, which is significant in diverting water around the sides of the property, if it’s to be built on, and the problems that it had associated with it.
Do you think, Mr Nicolson, a professional, a builder, has got a duty of care to their customers?‑‑‑What my inspection was is that you did know of the Carlo (sic) report, and that the builder had known of the Carlo (sic) report, and that the drainage still had to be done, even after the house had be – been built. The site drainage above retaining wall still had to be attended to.
So as the property owner, I have no written confirmation that that is required or was required on the block of land that I purchased. Who’s responsible for that? The builder? The engineer?‑‑‑You would say the owner for when they buy the block and land and what comes with it, and the report and the soil reports that come with it. If you buy a hill, you buy the report that comes with it. If you buy a flat ground over an easement, you buy a flat ground with the easement and the report that comes with it. And an easement may be an example.
The report by who?‑‑‑Carlo (sic) report.
Well, considering it’s a broadscale report, not a site-specific, are they going to – again, it’s a broadscale report, so that information wasn’t provided to me in that particular report for my site specifically, nor was it in Core Consultants’ report?‑‑‑There’s the report for the – for the purchase of the land to get engineering advice for the works to be carried out for that property.
Well, isn’t that up to the builder?‑‑‑If he’s not including it in his contract, no.
So are you suggesting that that ought to have been the case, in my case, seeing I’ve built – bought a hill – side of a hill?‑‑‑Was it discussed between – you know, I know you’re asking me the questions, but from my knowledge, it was discussed between yourself and your builder that a retaining wall had to be done so the site could be cut, and it was only a retaining wall of landscaping ability to protect the area a metre – up to a metre behind the wall, and that the rest of what the Carlo (sic) report has to be done will have to be done at a later date.
Is that in the Cardno Bowler report? Because I read that report extensively, and it’s not in there, because it’s a broadscale report, not site-specific to my property?‑‑‑Yes, it is. Yes, it is. Just like if you buy a report with a slope on the side of the escarpment and [indistinct] and you need further engineering for that particular site that suits that Carlo (sic) report.[53]
[53]T 1-74, lines 10 to 1; T 1-75, line 27.

Mr Nicholson made clear his understanding of the nature and intent of the wall and his understanding of what was contracted for. The monetary allowance for the walls is not relevant for the purposes of the present proceeding. It does not limit the obligation to comply with legal building requirements which cannot be contracted out of.

Resolution

The written Residential Building contract between the owners, Bradley F. Evans and Kate L. Austin, is included in the Hearing book provided to this Tribunal.[54] It is self-described as Residential Building Contract – Level 2 and displays the logo of Master Builders Queensland.
[54]Hearing Book p 170, ff.
In the Building Specification portion of it, the following provisions appear –
1.GENERAL
a)Unless otherwise specified, the works shall be constructed in accordance with the Australian Building Code (as amended), and all other relevant Local, State and Federal Authorities, and other statutory body’s requirements.
…
5.SITE WORKS
a)A Boulder rock retaining wall is included, up to 1000mm high, as per the working drawings, 68.5m2.
(this is the second use of (a) in this paragraph)
…
33.MISCELLANEOUS ITEMS
…
i.Landscaping is not included.
In the Site Plan,[55] two rock walls are drawn behind the proposed new residence. Each is described as a “1m high rock ret wall.” The distance between the two walls is shown as “1100” at three places along the length of the walls. At one end it opens somewhat however for most of its length the separation as drawn on the Site Plan is 1100 mm, ie 1.1 m. To summarise, the contract calls for two walls, each 1 m high and, mostly, 1.1 m apart.
[55]See, for instance at p 194 of the Hearing Book.
The QBCC Defects Policy provides, inter alia, that –
“(1) Rectification of defective building work
1.It is a policy of the Queensland Building and Construction Board (sic) that a building contractor who carries out defective building work should be required to rectify that work.
2.To remove doubt, subsection (1) applies despite the building contractor failing to comply with the contracted plans and specifications.
…
Defective building work means building work that is fault (sic) or unsatisfactory, and includes, for example, work that:
a.does not comply with the Building Act 1975 (Qld), Building Code of Australia or an applicable Australian Standard.
b.involves use of a manufactured product, and that product has been used, constructed or installed in a way that does not comply with the product manufacturer’s instructions.
…
Non-structural defective building work means defective building work (other than structural defective building work or residential construction work causing subsidence) that is faulty or unsatisfactory because:
a.it does not meet a reasonable standard of construction or finish expected of a competent holder of a contractor’s licence of the relevant class; or
b.it has caused a settling in period defect in a new building.
Structural defective building work means defective building work (other than residential construction work causing subsidence) that is faulty or unsatisfactory because it does one or more of the following:
a.adversely affects the structural performance of a building;
b.adversely affects the health or safety of persons residing in or occupying a building;
c.adversely affects the functional use of a building;
d.allows water penetration into a building.”[56]
[56]Hearing Book p 217, 218.
The written contract specifically excludes landscaping work but includes a retaining wall, which is specified.
Mr Nicolson’s evidence of his understanding that “… only a retaining wall of landscaping ability…”[57] was discussed between the contracting parties is not supported by reading the contract. The plan also makes it clear that there are two rock walls, each described as a 1 m high rock retaining wall.
[57]T 1-75, line 19.
Mr Nicolson’s oral evidence differs from his report dated 9 August 2021, where on page 8 , in item IV he wrote –
“… Engineered Block wall not extended far enough to support the area.”[58]
[58]Hearing Book p 407.
In that same report, he wrote, on the same page, at the fifth dot point –
“… it was determined that the wall was built to the contract…”[59]
[59]Ibid.
It is noted that the respondent’s consideration of the applicant’s complaint addressed each item of complaint separately. While that may be administratively useful it must be borne in mind that the whole matter is to be considered and that this Tribunal, and the respondent, does not put a person making a complaint to particulars but will assess the matter as a whole.
The Development Application Decision Notice on the letterhead of GMA Certification Pty Ltd sets out the Building Conditions. Item 11 states as follows –
11 Retaining Walls - (If Applicable) Retaining walls over 1 m high, or within 1.5 m of any building works or another retaining wall and/or subject to surcharge loadings will require building approval along with Engineer’s design and certification.[60]
[60]Hearing Book p 591.
It is noted that in the evidence, what has been constructed is referred to as a wall or, sometimes, walls. The plan shows two structures which could be described as two walls or a two-tiered wall. As will be explained below, this makes no difference to the outcome in this case. Whether it is one wall or two, the outcome will be the same.
The local authority, the City of Gold Coast, has issued an Enforcement Notice dated 9 March, 2022 to the owners of the property.[61] The notice states that what was observed on the site was –
“… (a) a two tier sandstone block retaining wall system…”
…
(c) … with a overall retained height of approximately 1900mm
…
(h) The retaining wall is assessable development, being building work, that has been carried out without an effective development permit for the development as required under the Planning Act;
[61]Ibid p 616, ff.
The Council required that the walls and the adjacent slope batter be repaired or rectified.[62]
[62]Ibid p 618, E.
This notice was issued under s 248(1) of the Building Act 1975.
On the same day, the Council also issued an Enforcement Notice to the owners under s 168 of the Planning Act 2016. It states, in part, that –
Take notice that the enforcement authority, Council of the City of Gold Coast (Council) reasonably believes you have committed or are committing a development offence against section 163(1) of the Planning Act 2016 (Planning Act, in that:
1.A Council Development Compliance officer inspected the premises on 28 September 2021, 3 November 2021 and 3 March 2022.
2.The inspection revealed that assessable development, being building work has been carried out at the premises without all necessary development permits being in effect for the development as required under the Planning Act.
3.The following observations were made with respect to the building work.
a.A two-tier sandstone block retaining wall system is located adjacent to the rear of the dwelling.
b.The sandstone block retaining was system is located less than 1.5m to the dwelling(building) at several locations.
c.The separation between the tiers of the two-tier sandstone block retaining wall is less than 1.5m.
d.There is non-compliance with Building regulation 2021, Schedule 1, Accepted Development (Self assessable) while states:
Work for particular retaining walls
(1) Building work for a retaining wall, other than work for a retaining wall that forms part of the fencing for a regulated pool, if––
(a)there is no surcharge loading over the zone of influence for the wall; and
(b)the total height of the wall and of the fill or cut retained by the wall is no more than 1m; and
(c)the wall is no closer than 1.5m to a building or another retaining wall.
e.The development is assessable development under the Planning Act.
4.Pursuant to section 163(1) of the Planning Act, a person must not carry out assessable development unless all necessary development permits are in effect for the development.
5.A search of Council records indicated that, to date, no development permit had been received for the building work.
6.Section 168(1) and (2) of the Planning Act states:
“ (1) If an enforcement authority reasonably believes a person has committed, or is committing, a development offence, the authority may give an enforcement notice to––
(a)    The person; and
(b)    If the offence involves premises and the person is not the owner of he premises––the owner of the premises
(2) An enforcement notice is a notice that requires a person to do either or both of the following––
(a)    to refrain from committing a development offence;
(b)    to remedy the effect of a development offence in a stated way.”
7.Consequently, Council issued you a show cause notice dated 5 October 2021 inviting you to make written representations as to why an enforcement notice should not be issued to you in relation to the unlawful building work. You written representations were required to be received by Council by no later than 17 November 2021.
8.A further inspection on 3 March 2022 revealed that the building work remains.
9.A search of Council records indicates that, to date, no development permit has been received for the building work.
10.Council has duly considered all representation made by you or on your behalf in response to the show cause notice dated 5 October 2021 and has determined that it is appropriate to give this enforcement notice.[63]
[63]Ibid p 622, 623.
The Council requires that the owners repair and rectify the sandstone block retaining walls and adjacent upslope batter.
Mr Nicolson is the person who made the decision which is the subject of the present proceedings.[64]
[64]Ibid p 827, [7].
The Building Regulation 2021 is made under the Building Act 1975. As the Enforcement Notices make clear, the overall retained height is approximately 1900 mm. If this is thought to be one wall, then it is more than 1 metre high. If it is thought to be two walls, then the walls, built to the contract, are 1.1 m apart, closer than 1.5 m to another retaining wall.
Either way, this work was built without the required development authority.
As the GMA Certification Development Application Decision Notice states, in clause 11, this work would …”require building approval along with Engineer’s design and certification.”[65]
[65]Ibid p 591, [11].
It is clear that the walls were required to be Engineer designed and certified and have a permit from the Council. It is equally clear that none of those requirements have been met.
Mr Hughes was of the opinion that while the walls should have been engineered, that is irrelevant because a landslip “… has taken the walls down.”[66] This is no answer to the present situation. The wall/s was/were required to be engineered and certified and have a permit from the Council. It has been built by the builder pursuant to the contract and has not been built as legally required in that it is not designed and certified by an engineer and approved by the Council. It does not have the required development approval. In view of this, the September 2017 report by Engineering Geologist Andrew Short of Core Consultants Pty Ltd which states that the slope stability hazard is low and recommends means to maintain that low risk rating is not relevant for present purposes.
[66]T 1-59, lines 33 to 43.
The legal situation is the mirror image of the understanding expressed by Mr Hughes. It is not that the failure of the wall somehow makes its illegality irrelevant, it is rather that its illegality makes its failure irrelevant. It is not built in compliance with the law, something that the applicant is entitled to receive.
The wall structure is defective building work as it does not comply with the Building Regulation 2021 made under the Building Act 1975. It does not comply with clause 1(a) of the Building Specification. It is faulty and unsatisfactory building work.
The Tribunal is satisfied in relation to all matters found by it on the standard of the balance of probabilities. It is comfortably so satisfied.
The Tribunal finds that the building work specified in the contract is defective or incomplete in that it is not engineered, certified and approved as required by law. It also finds that consequential damage such as pipes crushed by movement of the wall must be remedied.
The Tribunal finds that the correct and preferrable decision is that the building work considered in this case is defective building work. The builder is responsible for the defective building work. It is fair and reasonable to issue a direction to the builder to rectify the building work so that it complies with the law. There can be no unfairness to the builder in giving it a direction requiring it to comply with the applicable building law. There are no other relevant factors that would preclude giving such a direction.[67]
[67]Queensland Building and Construction Commission Act 1991, s 72(3), (5).
The Tribunal should set aside the decision made by the respondent in this matter and substitute its own decision. The applicant’s written submissions contained a claim for $3.22 million as compensation for her time, inconvenience, peril and likely future losses. Such claims are beyond the scope of what is now before this Tribunal for decision and are not able to be considered.
The decision is that the builder, Cummins Constructions Pty Ltd, trading as GJ Gardner Homes - Gold Coast North is directed to rectify the building work namely the retaining walls at the rear of the applicant’s house at 23 Colin Meagher Road, Wongawallen, Queensland, 4210 in accordance with the Enforcement Notice dated 9 March, 2022 under s 168 of the Planning Act 2016 and the Enforcement Notice dated 9 March, 2022 under s 248(1) of the Building Act 1975 and remediate all consequential damage so that the work complies with all legal requirements such as Engineer design and certification and Council approvals.[68]The respondent submits that as the builder does not at present hold a licence issued by it there would be limited utility in giving it such a direction. This is not accepted as it would not be a proper basis on which to not uphold a legal requirement.
[68]Ibid s 72(1), (2).

The period for rectification and remediation

Section 72(4) of the Queensland Building and Construction Commission Act 1991 provides that –
(4)The period stated in the direction must be the period prescribed by regulation unless the commission is satisfied that, if the direction is not required to be complied with within a shorter period—
(a) a substantial loss will be incurred by, or a significant hazard will be caused to the health or safety of, a person because of the defective or incomplete building work or consequential damage; or
(b) the defective or incomplete building work, or consequential damage, will cause a significant hazard to public safety or the environment generally.
Section 53A of the Queensland Building and Construction Commission Regulation 2018 provides that –
53A Period to rectify or remediate under direction—Act, s 72
For section 72(4) of the Act, the period—
(a) starts on the day the direction is made, as stated in the direction; and
(b) ends on the day that is 35 days after the day mentioned in paragraph (a).
The evidence of Mr Hughes, a very experienced engineer, is that the house is in substantial danger.[69] This is uncontradicted. This is well known to the applicant/owners. Having this knowledge reduces the hazard to their health and safety as they can conduct themselves appropriately in view of the risk until it is dealt with. The evidence before the Tribunal does not disclose a significant hazard to public safety or the environment.
[69]T 1-57, lines 10 to 11.
Accordingly, this Tribunal is not satisfied as required by s 72(4) of the Act. Due to s 53A of the Regulation, the period stated in the directions must be the 35 days referred to in s 53A(b) of the Regulation.

Orders

The respondent’s decision is set aside.
The Tribunal substitutes its own decision.
The builder, Cummins Constructions Pty Ltd, trading as GJ Gardner Homes - Gold Coast North is directed to rectify the building work, namely the retaining walls at the rear of the applicant’s house at 23 Colin Meagher Road, Wongawallen, Queensland, 4210 in accordance with the Enforcement Notice dated 9 March, 2022 under s 168 of the Planning Act 2016 and the Enforcement Notice dated 9 March, 2022 under s 248(1) of the Building Act 1975. Both enforcement notices were issued under the authority of the Chief Executive Officer, Council of the City of Gold Coast.
The builder is also directed to remediate all consequential damage so that the work complies with all legal requirements such as Engineer design and certification and Council approvals.
These directions must be carried out within the period of 35 days from their making on their pronouncement in this Tribunal.