Bickle v Queensland Building Services Authority
[2012] QCAT 114
•24 January 2012
| CITATION: | Bickle v Queensland Building Services Authority [2012] QCAT 114 |
| PARTIES: | Gregory Arthur Bickle (Applicant/Appellant) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | GAR363-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 16 December 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 24 January 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The building work at the applicant’s residence at 19 Harcourt St New Farm is residential construction work. |
| CATCHWORDS: | Building and Home Warranty Insurance Scheme – where defective building work – where claim on the Home Warranty Insurance Scheme – whether residential construction work – where respondent contends the building falls with the definition of “multiple dwelling of more than 3 storeys” in Regulation 13 of the Queensland Building Services Authority Regulation 2003 – where residence is a duplex – whether Regulation 13 includes duplex as a multiple dwelling – whether building comprises more than three storeys – where definition of “storey” in the Building Code of Australia considered Queensland Building Services Authority Act 1991, s 116 C&E Pty Ltd v CMC Brisbane Pty Ltd [2004] 2 Qd R 244 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Bickle appeared in person |
| RESPONDENT: | The respondent was represented by HWL Ebsworth Lawyers |
REASONS FOR DECISION
Mr Bickle owns Unit 1, 19 Harcourt Street, New Farm. Unit 1 comprises the lower ground floor garage and above that three floors of living and then a terraced rooftop. Part of the open terraced area comprises a small enclosed area. This area is used to access the stairwell and lift to the residential floors below. It also contains a water closet and vanity. The ground floor is not a storey.
The building was constructed in 2007 by Baxbex Pty Ltd. Beside Unit 1 is an identical Unit 2 on the western side. Photographs of the unit can be seen in the building report prepared by Mr Lack. As both units are identical and separated by a common party wall there is little doubt that they both fall within the definition of a duplex. So much is conceded by the Authority. A duplex, for the purposes of residential building in Queensland, takes on the same meaning as a detached house.[1]
[1] Domestic Building Contracts Act 2000, Schedule 2.
Because of defective building work, which Mr Bickle contends was the responsibility of Baxbex, he made a complaint to the Authority. As Baxbex was in liquidation the complaint was essentially a claim on the Home Warranty Insurance Fund for the Authority to implement steps to rectify the defective building work.
The complaint was investigated by the Authority and on 12 October 2010 it wrote to Mr Bickle declining the claim for a number of reasons but principally because the building work was not residential construction work under Regulation 13 of the Regulation to the Queensland Building Services Authority Act 1991. The consequence of this decision is that the Authority also rejected Mr Bickle’s claim on the Home Warranty Insurance Scheme. Alternate reasons were also given for rejecting Mr Bickle’s complaint but they are not relevant for the purposes of this application.
After a compulsory conference on 20 April 2011, the parties agreed that the Tribunal should decide three discrete issues[2]. They are in summary:
a) Whether the dwelling is a multiple dwelling of more than three storeys within the meaning of Regulation 13;
b) Whether the Authority is entitled to rely on clause 2.5(a) of the Policy Conditions 7th ed because the claim is out of time;
c) Whether the Authority is entitled to rely on clause 5.2 of the Policy Conditions because Mr Bickle purchased the residence with knowledge of the defects.
[2] Queensland Civil and Administrative Tribunal Act 2009, s 116.
At the commencement of the hearing the Authority and Mr Bickle agreed of the three issues it was only necessary for me to address the first issue.
In summary the Authority says that the building is a “multiple dwelling of more than 3 storeys” and therefore not classified as residential construction work under Regulation 13. The argument is supported by the definition of “multiple dwelling” under the Regulation which defines “multiple dwelling” as a “building comprising two or more residential units”. It also defines “residential unit” as a part of a building designed for separate occupation as a residence.
The Authority contends that on a plain reading of Regulation 13, in conjunction with the definitions, Mr Bickle’s residence falls within the definition as a “multiple dwelling” because it is more than three storeys because it says the terrace roof is a storey. As a consequence the building work does not fall within the Scheme. The Authority concedes that the ground level garage is not a storey.
Mr Bickel makes two points about the Authority’s position. Firstly he contends that the roof floor is not a “storey” by reference to the definition in the Building Code of Australia. Secondly, he contends that it is not a multiple built dwelling because it is a duplex.
These are the issues for determination in this application.
Is Unit 1 a multiple dwelling of more than three storeys under Regulation 13?
For Mr Bickel’s claim to come within the Statutory Insurance Policy he must satisfy the Authority that the building work is residential construction work. The Regulation[3] provides that “residence” means a building or part of a building fixed to land and designed to be used for residential purposes. There can be no doubt that this building is to be used for residential purposes.
[3] Queensland Building Services Authority Regulation 2003.
Regulation 10 then goes on to classify work that is “residential construction work”. It states:
“For the Act, schedule 2, definition Residential Construction Work, the following is classified as residential construction work –
(a) Primary building work;
(b) Associated building work”
It is not contested that the work here falls within the meaning of primary building work.
Regulation 13 sets out what is not classified as residential construction work which is:
“Building work on, or on the site of, a building or proposed building that is or forms part of any of the following –
i) A multiple dwelling of more than 3 storeys;”
The balance of Regulation 13 does not make any specific reference to a detached house or residence but refers to all other types of buildings that are not designed for use for residential premises. Specifically the Regulation does not exclude a residence and therefore a duplex.
A duplex is a detached dwelling.[4] The description of the building provided by Mr Petzel[5] is consistent with this because he said the plans show a partition wall constructed across the centre of the building on each level (including Level 5), with identical features on either side of that wall and intended for duel occupancy. Mr Petzel went on the say that he considered the “building on the Premises comprises of two separate, mirror-image residential units located over a basement carpark.”[6]
[4] Domestic Building Contracts Act 2000, Schedule 2.
[5] Affidavit of Mr Petzel, Licensed Certifier undated.
[6] Also see C&E Pty Ltd v CMC Brisbane Pty Ltd [2004] 2 Qd R 244 at 249.
His conclusion is that it is a multiple dwelling and that much is obvious because there are two side by side residences, but he does not attempt to distinguish between a multiple dwelling and a duplex which seems to me to be the crux of this application. For Regulation 13 to have any application a basis must be established to include “duplex” in the “multiple dwelling” definition. The only distinction might be is if there is some limitation on the total number of floors or storeys of the duplex which might change its characterisation. I have not been referred to any evidence, authority or statutory definition which would support such a conclusion.
Further support for Mr Bickle’s contentions can be found in the Authority’s own “Building Certifiers Guide to BSA Insurance & Owner Builder requirements for Residential Construction.”
The document is informative because the Authority itself draws a distinction in the Table of Insurable Residential Construction work between “duplex” and “units up to 3 storeys including residential”.[7] That is, it categorises a duplex the same as a residence but excludes it from the category of multiple dwelling consistent with the definition in the DBC Act.
[7]Building Certifiers Guide to BSA Insurance and Homeowners Requirements for Residential Construction – updated November 2007 version 4 – page 5.
This is consistent with a conclusion that the building is a duplex and takes on the same characterisation of a residence or detached dwelling for the purposes of Regulation 13 and the Insurance Scheme and does not fall within the description of “multiple dwelling”.
Is the structure more than three storeys?
The alternate argument is that the exclusion from the Scheme applies because the building is more that three storeys. This depends on whether the roof terrace can be classified as a “storey.” The Authority contends that as the roof includes an enclosed stairwell/lift entrance and wash room it falls within the definition of storey.
“Storey” is not defined in either the Queensland Building Services Authority Act 1991 or Domestic Building Contracts Act 2000 but is defined in the Building Code of Australia. The definition in the BCA is as follows:
“Storey means space within a building which is situated between 1 floor level and the floor level next above, or if there is not floor above, the ceiling or roof above, but not –
(a)A space that contains only –
i) A lift shaft, stairway or meter room; or
ii) A bathroom, shower room, laundry, water closet or other sanitary compartment; or
iii) accommodation intended for not more than 3 vehicles; or
iv) A combination of the above; or
(b) A mezzanine”
This area is not a mezzanine. The floor plan of the top floor shows that the enclosed area does have a roof and that roof extends out over part of the open terraced area on both the south eastern and north western side of the building. The floor plan describes the closed in area as a sun room but when one has regard to the photographs that were tendered[8] once the bi-fold doors are closed there is very little room available within the enclosed space for general use. From the edge of the stairs to the bi-fold door there is only approximately 650mm (a little over two feet). There is no furniture in that space although it does contain the wash basin and the room for the water closet.
[8] Exhibit 1.
Although difficult to calculate from the plan, it does seem to have an area of about four metres by three metres. The obvious purpose of the closed in area is to provide toilet facilities for those using the open garden terrace, and also to protect the stairs, the lift well and the water closet from the elements. The building is in a prominent position being the second block from the corner of Bowen Terrace and Harcourt Street at New Farm which means it is very much exposed to the elements.
By reference to the definition of storey, the enclosed space covered by the roof only contains those items that are referred to in the exception in the BCA definition.
Some support from Mr Bickle’s contention that it is not a storey can also be gained from the definition of “habitable room” also found in the BCA. A habitable room means a room used for normal domestic activities but excludes such things as bathroom, water closet, lobby, hallway and “spaces of a specialised nature occupied neither frequently nor for extended periods”. The enclosed space could not be regarded as a habitable room.
The Authority of course contends that the enclosed area apart from the lift well, the stairwell and the water closet is a usable space and it is space that does not contain those items referred to in sub paragraph (a) of the definition of storey. As a matter of logic, it is submitted, that this space must fall within the definition of storey. Conversely, the Authority submits that if the walls of the enclosed space abutted the stairwell and the lift well then it would not be considered a storey.
I have come to the conclusion that the provision of some extra metres of space between the stairwell and the lift to the bi-fold doors in this glassed in area is limited in its functionality as a habitable space. It falls more comfortably within the type of space that is excluded in the definition of storey in the BCA. One also has to have regard to the overall architectural features of the roof terrace so that the enclosed area harmonises with the open space and provides the necessary protection for the facilities included in it.
Conclusion
The building is a duplex and as such is a residence within the meaning of the Domestic Building Contracts Act 2000. As a residence it is not picked up in the exclusions of work that is not classified as residential work in Regulation 13.
The roof terrace is not a “storey” as it does not fall within the definition set out in the Building Code of Australia.
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