Bolaram v Construction Occupation Registrar; (Administrative Review) - [2023] ACAT 61

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BOLARAM v CONSTRUCTION OCCUPATION REGISTRAR
(Administrative Review) [2023] ACAT 61

AT 24/2023

Catchwords: ADMINISTRATIVE REVIEW – Appeal from refusal to issue Certificate of Occupancy – whether prescribed requirements met – whether bushfire access precautions provided
Legislation cited: Building Act 2004 ss 34, 42, 66, 69, 151
Planning and Development Act 2007 s 133

Other Material
cited:Australian Standard 1170.1.2002 Structural design actions Part 1 – Permanent, imposed and other actions, table 3.3
Australian Standard 3959:2018 Construction of buildings in bushfire-prone areas, cl 5.5.1, 5.5.2, 5.5.4, s 6
Australian Standard 4654.1-2012 Waterproofing membranes for external above-ground use, Part 1: Materials
Australian Standards 4654.2-2012 Waterproofing membranes for external above-ground use, Part 2: Design and installation
National Construction Code 2016 Volume Two: Building Code of Australia Class 1 and Class 10 Buildings cl 3.1.2.0, 3.1.2.1, 3.1.2.2, 3.1.2.3, 3.1.2.4, 3.7.4.0, 3.8.1.3, 3.9.2.3
National Construction Code 2022 Volume Two: Building Code of Australia Class 1 and Class 10 Buildings pt H2D8
Planning and Development Regulation 2008 s 1.100A
Territory Plan 2008, 3.3 Single Dwelling Housing Development Code 2016 Rules R10, R11 and R12, 10.1 Suburb Precinct Maps and Codes, 13.1 Dictionary

Cases cited:Bolaram v Australian Capital Territory & Ors [2020] ACAT 108
Bolaram v Australian Capital Territory & Ors [2021] ACAT 64

Tribunal:Senior Member B Meagher SC
Senior Member A Wilson

Date of Orders:  12 October 2023
Date of Reasons for Decision:      12 October 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 24/2023

BETWEEN:

VENUMADHAUA BOLARAM
First Applicant

AND:

VINUTHA BOLARAM
Second Applicant

AND:

CONSTRUCTION OCCUPATION REGISTRAR
Respondent

TRIBUNAL:Senior Member B Meagher SC
Senior Member A Wilson

DATE:12 October 2023

ORDER

The Tribunal orders that:

The decision under review is confirmed.
………………………………..

Senior Member B Meagher SC
For and on the behalf of the Tribunal

REASONS FOR DECISION

Introduction

The applicants are the registered proprietors of the Crown Lease for Block 5 Section 45 Lawson ACT. The respondent is the Constructions Occupations Registrar (the Registrar).
The first applicant, Mr Bolaram, was given an owner-builders licence in 2018 and has built a home on the block. During construction, a stop notice was issued by the respondent. This led to litigation in the tribunal. The nature of the litigation and its outcome can be found in the decisions of the tribunal at first instance and on appeal.[1]
[1] Bolaram v Australian Capital Territory & Ors [2020] ACAT 108 and Bolaram v Australian Capital Territory & Ors [2021] ACAT 64
The relevant background facts were set out in the Appeal at [19]-[30]. There was a claim for damages for the alleged wrongful issuing of the stop notice. No administrative review was pursued for the stop notice. Both Tribunals found the stop notice was valid. The reason for the stop notice was the absence of development approval for a building that was thought to have a Gross Floor Area (GFA) larger than permitted,[2] and a front set back issue. The certifier appointed by Mr Bolaram had asserted that development approval was not needed, and it was found this was wrong. There was some controversy about what was included in the GFA in respect of enclosed or partly enclosed terraces or balconies, but the setback issue remained a problem. The claim was dismissed and, in effect, the stop notice was regarded as valid.
[2] Territory Plan 2008, 13.1 Dictionary – ‘Gross Floor Area’: Gross floor area (GFA) means the sum of the area of all floors of the building measured from the external faces of the external walls, or from the centre lines of walls separating the building from any other building, excluding any floor area reasonably used and necessary solely for fixed mechanical plant, bicycle parking and associated end-of-trip facilities, and/or basement car parking
Fortunately, in this case we do not need to decide whether the GFA is exceeded. The respondent. in the decision appealed from, considered that the GFA was exceeded. He has changed his mind, as explained later. The setback issue has also been resolved. The reason for the stop notice no longer exists.
This case is an appeal by the applicants against a refusal by the Registrar to issue a Certificate of Occupancy (Certificate). The applicants were self- represented. The respondent was represented by Mr Bird of Counsel instructed by Ms Bayer of the ACT Government Solicitor.
There is a complicated history regarding the building approvals originally issued. There have been amendments to the plans. The building approval and the owner-builders licence expired in 2021. Work has been done after the stop notice, and after the decision under review. There is a question whether work done after the stop notice up until now is consistent with the approved plans, and whether the plans need to be amended to reflect the work as constructed. An issue also arises as to whether the work done to repair or attend to perceived building defects requires a building licence or approval.
It was argued that the original building approval was invalidated by the erroneous statement by the certifier concerning the development issue.
Apart from questions concerning the existence of an extant building approval, and the unresolved issues concerning the GFA, an inspection was done in January 2023 where 12 issues in building compliance were identified. The Registrar accepted that they were such that the Certificate should not be issued and that the building was unsafe.

Evidence

Before setting out the salient facts in detail, we set out here the evidence and other material, documentary and oral – including submissions – that were provided.
Applicants’ documents
The review application dated 27 March 2023, including the decision dated 28 February 2023, an email dated 11 November 2022 from Environment Planning and Sustainable Development (EPSD) confirming that the outdoor areas upstairs and ground level were not part of the GFA, an email from John Bates dated 25 February – the private certifier who approved the building work. This was headed Notice to Show Cause, referring to a notice Mr Bates had received concerning his role. Also attached is a further email from Mr Bates dated 7 March 2023, wherein he addresses the alleged non-compliant areas and says they are compliant. Also attached was an extract of legislative provisions dated 27 March 2023.
An email dated 3 July 2023 to Ms Bayer, the solicitor for the respondent, with other prehearing correspondence regarding arrangements for the hearing and listings. It should be noted that the respondent sought to have a further inspection that may have enabled it to assess to what extent any alleged defects had been remedied. This was not agreed to by the applicants.
Submissions and documents dated 31 May 2023.
Index and Bundle of Documents received on 3 July 2023.
Two large binders of documents with indexes containing submissions, plans, primary documents, and other possible information intended to be in reply, were provided on 22 August 2023.
During the hearing, the applicant tendered a series of photos taken during construction and the night before the hearing on 25 August in respect of stair measurements. They were marked Exhibit A1.
Respondent’s documents
Submissions dated 28 July 2023.
Witness statement of Madelin Bayer, solicitor, and attaching documents.
Witness statement of Joel Muir, the Building Inspector who provided the Inspection Report.
During the hearing, the respondent tendered an additional document, marked R1, being an email from a windows manufacturer about fire rating.

Oral Evidence

Mr Bolaram and Mr Muir gave evidence and were cross examined. Mr Bolaram had asked for leave to subpoena Mr Bates. This application was not pursued, however, due to its lateness and noncompliance with a direction as to when it was to be issued, it would have been refused. Mr Bolaram had raised the possibility that he would ask Mr Bates to come along on the second day, but he did not, and the issue was not pursued further.
Observations of the witnesses
To ensure all issues were addressed, the evidence in chief of Mr Bolaram was obtained by the presiding Tribunal member taking him through the issues and getting him to explain the documents that he had provided in respect of each issue. Whilst Mr Bolaram, understandably perhaps, was inclined to be belligerent, it was our observation that he was honest. He had an owner-builders licence for the project and has a background in other areas. While he may be wrong about several of his conclusions, he impressed us as intelligent and extremely hard working. While he has taught himself a lot about building requirements, he is not an expert, and his opinions are, understandably, not independent.
Mr Muir was generally a good witness but may not be right about all his conclusions. He is an expert witness, but in some respects, we found his evidence unconvincing. His evidence was also qualified by not having had a chance to reassess the building between the date of his last inspection and the hearing.
No independent expert witness was called.
A view was held on the morning of the first day of the hearing. Mr Muir was there and was able to make some observations of changes since his inspection report.

Facts

On 24 May 2018, Mr Bates, the private certifier appointed by Mr Bolaram, issued a building approval and an exemption notice asserting that the building did not require a development approval under s133 of the Planning and Development Act 2007. Mr Bolaram obtained an owner-builders licence on 22 June 2018. His application disclosed he had done relevant training for this. The documents, including the approved plans, were lodged with Access Canberra, and work commenced. The approval and the licence were for a period of three years. They expired in 2021.
On 22 November 2019, inspectors from Access Canberra attended the property on a routine inspection. They noted what they said were several changes to the building that were not on the plans.
On 26 November 2019, they emailed a report to Mr Bates. At that time, the building was approaching the pre-sheet stage. The report identified five items of variance from the approved plans. Item 1 was that the al fresco on the East Elevation, where an opening was shown on the plans, has a wall and window. Item 2 related to West Elevation Verandah 1, which has a door where a window was shown. Item 3 related to the second story Bedroom 4, which changed a walk-in robe into a terrace. Item 4 concerned an opening in the wall with a timber screen where there was no such opening on the plan. Item 5 had windows differing from the South in Bedroom 2 and the kitchen.
It might be observed that photo 2 in the report, shows an area that Mr Muir says had particle board on the floor. This was not the subject of any adverse comment nor was attention drawn to it. The photo does not make clear what the material was and there is a dispute as Mr Bolaram says it was not particle board. All agree that particle board covered by tiles would be unsuitable. The purpose of the photo was to show a change from the plans, not the material that was being used. We will return to this issue later.
On 3 December 2019, a stop notice was issued.
On 16 December 2019, an audit was conducted by the respondent. The audit did not find any issue with the GFA based on the plans. It did identify a failure to comply with the Single Dwelling Housing Development Code rules regarding front setbacks, R11 side and rear setbacks, R12 and Bushfire R10.
On 22 December 2019, Mr Bates lodged amended approved plans (First Amendment). No application was made to set aside the stop notice. It appears work continued. In 2022, a civil action claiming damages said to arise from the stop notice was lodged with the tribunal by the applicants. It was unsuccessful both at first instance and on appeal.[3]
[3] The appeal decision in-part relied on the lack of front setback and was decided after the exemption was given. As the action was directed to the time that the stop notice was made this did not change the situation on appeal
In June 2021, the front set back departure was approved by EPSD via an exemption determination under section 1.100A of the Planning and Development Regulation 2008.
The application for a Certificate was lodged on 12 December 2022. Mr Bates also lodged further amended plans (Second Amendment). The application was made under section 69(2) of the Building Act 2004 (the Act). It was said to substantially comply. It was noted that the work was substantially done while the building approval was current but noted that it had since expired. The application, which is found at Annexure M to the statement of Ms Bayer, attaches all the inspection reports by Mr Bates during construction, and numerous certificates from suppliers and trades.
The amended plans are said to be approved by Mr Bates on 8 December 2022.
A setback issue on the Eastern side was exempted by EPSD in April 2023, in Attachment O to Ms Bayer’s statement.
The Certificate application was refused on 28 February 2023, and the application for review to the tribunal was made on 27 March 2023.
Another inspection was done by Mr Muir and others on 30 January 2023, and 12 areas of concern with the building work were identified. Mr Muir’s statement deals with them.
After this inspection, some further work has been done by Mr Bolaram to address some of the alleged defects.
As most of the hearing was directed to whether those items are, or remain, a problem, we propose to deal with them item by item, noting the contrasting evidence and the submissions in respect of each, and referring, where helpful, to the documents that assist in understanding each issue.

Some Legislation and preliminary points

Section 69 of the Act provides three avenues for the grant of a Certificate. The first avenue requires compliance with the prescribed requirements, defined in section 66 as follows:
prescribed requirements, in relation to building work, means—
(a)if the building work involves handling asbestos or disturbing friable asbestos—the requirements of—
(i)this Act; and
(ii)the Work Health and Safety Act 2011; or
(b)for any other building work—the requirements of this Act.[4]
[4] Building Act 2004 section 66 (emphasis added)
Mr Bolaram was under the impression that the definition in (b) was governed by the reference to asbestos in (a). It is not. The requirements under (b) are set out in section 42.
Relevantly, section 42 requires:
(1) Building work must not be carried out except in accordance with the following requirements:
(a)the materials used in the building work must comply with the standards under the building code for the materials in buildings of the kind being built or altered;
(b)the way the materials are used in the building work must comply with their acceptable use under the building code for buildings of the kind being built or altered;
(c)the building work must be carried out in a proper and skilful way;
NoteThe considerations to be taken into account to decide when work is carried out in a proper and skilful way may be prescribed under the regulations (see s (2)).
(d)for building work that requires building approval under division 3.3, the building work—
(i)must be carried out in accordance with approved plans; or
(ii)if plans have not been approved for the building work—must not be carried out;
In the earlier case at first instance, the tribunal said:
Neither the original building approval nor the amended building approval was validly issued in accordance with, respectively, section 28 and section 32 of the Building Act.[5]
[5] Bolaram v Australian Capital Territory & Ors [2020] ACAT 108 at [63]
The Certificate might be granted under a second pathway if the work substantially complies with the prescribed requirement.
The third pathway is available under section 69(2B), where the prescribed requirements have not been met.
The whole section is as follows:
(1)     The construction occupations registrar must issue a certificate of occupancy for building work that involves the erection or alteration of a building if, on application by the owner of the parcel of land where the building work was carried out, the registrar is satisfied that—
(a)the building work has been completed in accordance with the prescribed requirements for the building work; and
(b)the building as erected or as altered is fit for occupation and use as a building of the class stated in the approved plans for that building work.
Note 1If the building work only involved erecting part of a building, see s (3).
Note 2Power to make a decision includes power to reverse or change the decision (see Legislation Act, s 180).
(2)     If building work involving the erection or alteration of a building as completed is not strictly in accordance with the prescribed requirements for the building work but is substantially in accordance with the requirements, the construction occupations registrar may, on application made by the owner of the parcel of land where the building work has been carried out, issue a certificate that the building as erected or as altered is fit for occupation and use as a building of the class stated in the approved plans for that building work.
(2A) The owner of a parcel of land where building work was carried out may apply for a certificate under subsection (2B).
NoteIf a form is approved under s 151 for the application, the form must be used.
(2B) The construction occupations registrar may issue a certificate in relation to a building that the building as erected or altered is fit for occupation and use as a building of the class stated in the certificate if—
(a)the registrar is not satisfied on reasonable grounds that building work involving the erection or alteration of the building has been completed in accordance, or substantially in accordance, with the prescribed requirements for the building work; and
NotePrescribed requirements—see s 66.
(b)the applicant has completed any certification process prescribed by regulation in relation to the building or building work; and
(c)the building, or building work, is not excluded by regulation from this subsection.
(2C) A certificate mentioned in subsection (2B) in relation to a building must include a statement to the effect that—
(a)the construction occupations registrar is not satisfied on reasonable grounds that building work involving the erection or alteration of the building has been completed in accordance, or substantially in accordance, with the prescribed requirements for the building work; and
NotePrescribed requirements—see s 66.
(b)the giving of the certificate does not affect the liability of anyone to comply with the provisions of a territory law (including this Act) in relation to the building; and
NoteSee s 68 (Effect of certificates under div 5.1).
(c)part 6 (Residential buildings—statutory warranties, standard conditions, insurance and fidelity certificates) may not apply to the building work.
(3)     If part of a building has been erected in accordance with the prescribed requirements so far as they relate to the part of the building, the construction occupations registrar may, on an application made by the owner of a parcel of land where the building is being erected, issue a certificate that the part of the building is fit for occupation and use as a part of a building of the class stated in the approved plans in relation to the building work.
(4)     A regulation may prescribe—
(a)matters that must be considered by the construction occupations registrar in deciding whether a building is fit for occupation and use; and
(b)requirements that must be satisfied before a certificate of occupancy may be issued

There is a prescribed form for this latter approach, and it must be used under section 151 of the Act. It was not. At first blush, this might seem a matter of form over substance, but when the qualifications for such an approval are understood, it involves a degree of consideration far wider than the decision under section 69 (1) or (2).
There does not seem to be a regulation that sets out what the Registrar ought to consider, but there is advice attached as Annexure Q to Ms Bayer’s statement about what will be considered. Approval of the plans and the owner-builders licence had expired. Work has been done after their expiration. If the items in the inspection report are correct, then it does not meet the requirements of the various codes and standards adverted to.

Prescribed requirements

There are two parts to the submissions of the respondent. One is that the original approval had lapsed in 2021. These plans had not been followed. The original approval was invalid, as decided by the tribunal in the earlier case. The amendments did not alter that. The purported second set of amendments was to a plan whose approval had lapsed and had not been followed. The work done after the stop notice from pre-sheet level to lockup and finishing was done whilst there was no extant licence and no valid approval. Mr Bolaram sought to argue that there was approval, and the amendments constituted a new Application, so that time continued to run. He also argued that the tribunal decision about validity was wrong. We cannot go behind that decision, and it seems correct to us. The amendments do not amount to a new approval with a new time period by reason of section 34 of the Act, as argued.
Having said that, bearing in mind the substantial evidence as to what has since been done after the inspection in January and the later exemptions by EPSD, we are of the view that it would be appropriate for the Registrar to provide an approval under section 69(2B) subject to attendance to any issues that remain after we have considered the 12 items identified by Mr Muir. All the items have either been addressed or are capable of being addressed, and to get that done, the applicants will have to follow the process in Annexure Q of Ms Bayers statement. The respondent will provide a certifier, and it is important that there be an agreed list of what is to be done and inspection showing it has been done. In this regard it would be prudent for Mr Bolaram to engage the services of a licensed builder. It would be useful to select one that the respondent will regard as reliable. This might be by agreement or by getting an agreed third person, such as the President of the Master Builders Association or similar industry identity, to select one. Mr Bolaram might be able to do the necessary work under the auspices of the builder and to his satisfaction.
The second issue is whether the 12 items are also a breach of the prescribed requirements in that the work does not comply with the relevant codes and standards.

Onus of proof

The decision we must make is the preferable one, as though we are the Registrar. This means there is no overall onus, but there can be an evidential one. In this context, unless we are certain that there are no defects, as listed, we ought not provide a Certificate. The applicants need to persuade the Registrar, or us in his place, that the requirements for issuing a Certificate are met. As will be seen, there are some defects that are not significant, and in such a situation, but for the first problem of an extant approval, we might consider making an order that a Certificate will issue subject to attendance to these items.

The 12 items identified by the inspector and relied on by the respondent in his decision.

Item 1 Bushfire Attack Level 19 requirements

The problem was described in the decision at 14.1. It said inspectors observed non-compliance with the Bushfire Attack Level (BAL) requirements of Australian Standard 3959:2018 (AS 3959) relating to wall cladding, door types, door seals and opening skylights.[6] The Precinct Code identifies the Block as subject to BAL 19 requirements of AS 3959.[7]
[6] Australian Standard 3959:2018 Construction of buildings in bushfire-prone areas, Section 6 – Construction requirements for BAL—19, pages 54-64
[7] Territory Plan 2008, 10.1 Suburb Precinct Maps and Codes – ‘Lawson Precinct Map and Codes’, OP1 – Lawson residential area, Figure 3
Mr Muir explained that further in his inspection report, his witness statement and in evidence. We were able to see at the view various parts of the house that are involved.
It was observed at the time of the inspection report that the sliding doors and some windows were not sealed. There was also no mesh where there should be covering certain openings such as the skylight. Mr Bolaram acknowledged that this was unfinished and explained it occurred when the painters removed doors and didn’t put them back properly. He has since had this done. He replaced the sliding doors with swing doors which, he says, are airtight and there is mesh on the skylight and other openings. Concern was raised that the sliding door work required approval as it was structural. This is, in our opinion, unhelpful. The doors had a lintel that was not moved, and the work was done by licenced tradesmen. We do not see that as being an obstacle to gaining the Certificate. Having said that, we are not certain that this work satisfies the BAL requirements, but it may well. It is obviously significant, and, unless it complies, a Certificate ought not be issued. As there are other items that are a concern, it can be checked to make sure that all is well. In this regard, a certifier would require a fire engineer to ensure that there is compliance.
Mr Bolaram argued that BAL 19 did not apply to the sides. Mr Muir said it did, but not the rear. The map showing the access, that fire would have to the property, makes it clear that the sides are also affected. This is because the home faces North at a point in the Crescent that is at the tip of the arc facing the public open land opposite. This shows the sides as readily vulnerable to any approaching fire. Mr Muir is correct about that.
The cladding refers to non-fire rated walls on the balconies. If those walls were inside the home, it would not matter, but they are, in effect, the external walls that are a barrier to fire getting inside, and they must be fire-rated as per the Code. Mr Bolaram accepted this and has since placed a number of sheets (coloured blue) on those walls that are alleged to be of an appropriate quality. Mr Muir saw them but was concerned that they may be covering other non-fire rated material and may not comply. No independent expert has given this an approval and, before a Certificate issues, that will need to be checked and remedied if need be. This will require an assessment and any substantiated non-compliances be remedied by a licenced builder, certified by a fire engineer or qualified person to comply with BAL19, and provided to the appointed certifier.
Mr Bolaram sought to draw comfort from the approvals given by Mr Bates. Clearly, Mr Bates approved the home without requiring this work. He should not have. He wrongly stated no development approval was required. He did not advert to other items in the report that Mr Bolaram conceded were needed and which he has since sought to fix. He did not give evidence. In the circumstances, we can give little weight to any opinion of Mr Bates, and where it differs from that of Mr Muir, we would prefer the evidence of Mr Muir. We do not agree with all Mr Muir says, but that is not because it might be at variance with what Mr Bates has said.
There are a number of doors that were discussed. Mr Bolaram argued that doors to the side entrances from balconies or otherwise need not comply based on his argument about the approach of any fire. We disagree with that argument. The Single Dwelling Housing Development Code,[8] National Construction Code (NCC),[9] and AS 3959,[10] require doors, that are external doors and determined to be exposed to levels of ember attack and ignition of debris, to comply with BAL 19. The evidence was unclear as to which may not. As we understand the evidence, Mr Bolaram has enough correct doors and they can be installed if they are not already. This will need to be checked by the appointed certifier.
[8] Territory Plan 2008, 3.3 Single Dwelling Housing Development Code rule 10
[9] There are various editions of the NCC which may apply. In National Construction Code 2016, Vol 2: Building Code of Australia Class 1 and 10 Buildings, clause 3.7.4.0 page 289 is relevant, and it was the building code in force at the time of the building work undertaken by Mr Bolaram
[10] Australian Standard 3959:2018 Construction of buildings in bushfire-prone areas, clauses 5.5.1, 5.5.2, and 5.5.4
There was a different issue with the ground floor front sliding doors. Mr Bolaram asserts that the glass does comply and points to the brand description, which shows double glazed glass with some thickness and seems on its face to be very sturdy. Mr Muir asked the supplier and got an email saying they were BAL 14 not BAL 19.[11] We accept that Mr Bolaram believes that they do comply, and that the junior staff member who sent that email may well be wrong. However, we have not been provided with any written documents that make that clear. The BAL 19 requirements for glazing and frame will need to be verified and, if inadequate, the glass or glass and frame will have to be replaced for those windows and doors that are non-compliant with BAL 19 requirements to resist ‘ember attack’ and certified as compliant by the supplier and installer.
[11] Exhibit R1 dated 31 January 2023 – ‘Email from Amelia Canavan re: Bushfire resistance of windows block 5 section 45, 7 Dawn Crescent, Lawson.’
The subject openable skylight refers to having no mesh, but a mesh was seen during our visit loosely fitted. Mr Muir says this too. That the frame and mesh satisfy the BAL 19 protection requirements for screening of an ‘ember attack’ will need to be verified. If not compliant with NCC Part 3.7.4 Bushfire Areas and its reference to AS 3959 Part 6.6.5 (b), it must be replaced with a screen made with compliant materials.
Mr Muir in his evidence agreed that the mesh issue appeared to have been attended to and we expect that this aspect will not be a major problem. However, it needs to be verified as we have said.
Item 2 and 3 Step Downs and draining provisions.
These issues are explained as step downs not being provided to external balconies, al fresco areas or verandahs. Also, it is said, there is not adequate fall to cause water to run away from the building.
There appear to be step downs on the ground floor, and as we understand it this is not the issue. On the upper floor, there are no step downs, and there are a number of balconies or outdoor areas. The purpose of the step down is, said by Mr Muir, to prevent water flowing into the house. In fact, it is more than that for upper floors, where there is a concern that water does not escape to the dwelling area underneath. There are drains with a slope in the flooring that is alleged to enable water to flow into them. There appears to have been no issue with water and the premises have been at this stage for some years (during the La Nina period).
The version of the NCC that would normally apply is the 2016 edition as it was in force at the time the initial approval was given. Mr Muir says that in his statement and refers to section 49(6) of the Building Act. We were given part of a code that includes clauses 3.1.2. It is in the same terms as that in the 2016 edition and in the 2019 edition. It has different page numbering so must have been sourced from elsewhere, but nothing turns on it.
Mr Muir was taken to parts of a code. The edition of the Code was not explained, and it seems to be later than 2016,[12] as the page numbers are different. However, we accept that it applies in this case. It requires step downs in certain situations. We were referred to clauses 3.1.2.0-3.1.2.4 of the drainage requirements for dwelling houses under the NCC.[13]
[12] Ordinarily, the Code that applied when the Approval was given and work first started would apply. Here as we have found that the Certificate cannot be given, it would be important to take into account any changes to the Code since.
[13] It is in the National Construction Code 2016, Vol 2: Building Code of Australia Class 1 and 10 Buildings, in clauses 3.1.2.0-3.1.2.4 at pages 111-115. We accept that the version we were given applies.
We do not see how Mr Muir could read it as applying to the upstairs areas. It specifically refers to a slab on the ground adjacent to the slab. It deals with site preparation. In fact, there are requirements elsewhere in respect of waterproofing generally, and in the 2022 version balconies are expressly referred to as being satisfied where there is a stepdown,[14] but otherwise there needs to be compliance with AS 4654.1 Materials[15] and AS 4654.2 Design and Installation, to protect the building from water that might escape to internal areas underneath.[16] They relate to membranes and include provisions to protect the building from water that might escape to internal areas underneath.[17] Whilst the same language was not in the earlier editions impliedly clause 3.8 would have imposed the same requirements without mentioning the stepdown as being enough. It did not impose the step down for those areas.
[14] National Construction Code 2016, Vol 2: Building Code of Australia Class 1 and 10 Buildings, clause 3.8.1.3
[15] Australian Standard 4654.1-2012 Waterproofing membranes for external above-ground use, Part 1: Materials
[16] Australian Standard 4654.2-2012 Waterproofing membranes for external above-ground use, Part 2: Design and installation
[17] H2D8 of Volume 2 of the NCC 2022 (This is numbering in the 2022 version, but we see that as relevant in considering whether an Approval can now be given)
The necessary drainage seems to work, and the drainer is said to have checked it, and was happy with it.[18] Mr Muir said that the drainage certificate did not include stormwater, but Mr Bolaram gave unchallenged evidence that the drainers did check the drainage on the balconies, and it was found to be functional. This is demonstrated by the experience since the work was done. In our view, it would be unreasonable to require the finished floor level between the inside of the house and the balconies to be altered for this reason, so long as the Australian Standards are complied with. This should be capable of being tested without disassembling the floors. It would require a degree of expense to do otherwise.
[18] Transcript of proceedings dated 25 August 2023, page 187 lines 23-29
There was some evidence from Mr Bolaram that the plans show there is a drop, but they relate to the framing not the finished surfaces.
Compliance with the NCC and AS 4654 is a requirement that, if addressed, advances the grounds for issuing the Certificate requested. As other items need to be checked, the adequacy of the drainage should be confirmed by inspection and certification.
Item 4 Door seals
See item 1
Item 5 Balustrade to open terrace
This refers to a screen of some composite material of woodgrain appearance that is fixed in a gap in a wall on the first floor terrace. It has a wooden plank across it as well.[19]
[19] Tribunal documents dated 30 January 2023 – ‘General Inspection Report Block 5 Section 45 Lawson – Inspection for Certificate of Occupancy and Use’, page 57
At the inspection, there was a gap at the bottom, but that has since been covered with another plank of the same type. Mr Muir describes the material as flimsy and, if inadequate, there is a drop of some metres. It has not been load tested.
To an untutored eye, the material is bendy and flexible, and may be inadequate. The reason why there is a gap at all was that the plans were changed, apparently to allow access for moving appliances. The gap does not seem to be needed any more, and it may be in keeping with the high standard of the finishing in the house that thought be given to filling it with masonry. Whilst it has not been established that it is inadequate, we think the concern is reasonable, and it should be checked to see if it passes the Australian Standard 1170 Table 3.3[20] and, if not, be replaced.[21]
Item 6 Gaps in foam and Hebel expansion joints
[20] Australian Standard 1170.1:2002 Structural design actions Part 1: Permanent, imposed and other actions, Table 3.3 Minimum Imposed Actions for Barriers, pages 14-15
[21] Per National Construction Code 2016 Vol 2: Building Code of Australia Class 1 and Class 10 Buildings, clause 3.9.2.3
Mr Bolaram dealt with this at the hearing.[22] Mr Muir did not dispute that this had not been fixed, but said it was of minor concern.[23] Counsel for the respondent confirmed it was now not an issue.[24]
Item 7 Absence of window restrictors
[22] Transcript of proceedings dated 24 August 2023, page 70 line 5-page 71 line 38
[23] Transcript of proceedings dated 24 August 2023, page 128 line 35-page 129 line 8
[24] Transcript of proceedings dated 25 August 2023, page 196 lines 34-39
On the view, we saw there were restrictors where needed. The concern was that one could be removed, but it is locked and seems fine. The reason for it being capable of being removed is to enable access for cleaning.[25] So long as the restrictor is in place and locked, it serves its purpose. We don’t think this is an issue.
Item 8 Differing stair risers
[25] Transcript of proceedings dated 24 August 2023, page 72 lines 1-10
This is overstated. It refers to the stairs in the plural. The specific measurements relating to gaps is for one stair at the top, turning towards a landing. The specific measurements relating to uneven heights refer to the top and second top step. To explain, the risers need to have a gap no greater than 125 mm. This is to prevent a baby falling through. There is a spherical device with the required diameter that can be used to test this. This has not been done, Mr Muir used a handheld tape, as he did not bring the sphere with him. Mr Bolaram said earlier he and Mr Bates checked gap measurements with a cylinder with the words and figure asserting it to be 125 mm in diameter. Since the inspection in January, a carpenter has done some work and this issue, and the uneven height issue, were attended to.
The height issue is to avoid a trip or stumble if the heights from the top of the next step varies from the one that the walker is on. This seems to have been attended to. Mr Bolaram, on the night of the first hearing day, took photos showing both handheld tape and the cylinder on each step.[26] This showed them to be compliant.
[26] Exhibit A1 – Combined photographs document and Staircase Engineering details documents dated 28 August 2023
It seems this can easily be fixed, if it has not been already, and should not be a problem. It would be advisable for there to be an independent measurement using the correct tool to be sure.
Item 9 Weep holes
The parties agree that there are weep holes, that they were covered up on inspection, and are now visible. This is no longer an issue. The covers need to be removed.
Item 10 General water leaking externally
This refers only to two places, and there are photos.[27]
[27] Tribunal documents No 5 dated 30 January 2023 – ‘General Inspection Report Block 5 Section 45 Lawson – Inspection for Certificate of Occupancy and Use’, pages 60-61
We saw the discolouration spots on the view. Given the building has been up for some time and there is no indication of other water issues, we think this description is overstated. Mr Bolaram explained that one discolouration was due to a patch near a pipe, and the other he thinks was due to water from elsewhere not leaking through the eaves. It seems to us that both need to be checked and independently verified to be in order. The discolouration does seem to be consistent with there being water coming through the eaves where the photo is taken. Assuming work is required, it is unlikely to be extensive.
Item 11 No expansion joint in the brickwork

This relates to one wall only. On the plans, brickwork extends longer than 5 m, contrary to what Mr Bolaram understands. He places some weight on the use of the words in the standard as excusing him from placing an expansion joint within that wall. He agrees there isn’t one. Mr Muir explained that it would not be difficult to do that now, and it is required because the masonry expands and contracts with moisture, heat or cold. We agree with him, and this should be done and verified.
Item 12 Upper balcony constructed of particle board flooring.
Mr Bolaram is adamant that there is no such flooring. The evidence that there is relates to a photo taken in 2020, when there was an inspection to see whether the GFA was being exceeded and not to check on material. This work presumably was not in accordance with the initial plan, hence the interest. The photo does not help in identifying what material is there. Mr Bolaram had a photo too, and it is in part 1 of Exhibit A1. It doesn’t help either. We think it improbable that it was.
Mr Bolaram agrees that particle board should not be there, and it is unlikely he would have put it there or that Mr Bates would have passed it. Mr Muir attended when the owner was not present, but the officers could easily have passed on the information. Perhaps they thought issuing a stop order might achieve that anyway, but there is no evidence they turned their mind to it.
If it was decisive, we would find, on the balance of probabilities, that there is not particle board there. However, as other items will need to be independently checked and remedied where needed, that can be checked and certified as well.

Conclusion concerning the alleged defects

Whilst two of the items are not in dispute, most are in dispute, and some are serious. It is possible that some of the areas of concern have been fixed or already complied, but we are not persuaded that this aspect of the prescribed requirements has been met.

GFA Issue

The decision had also considered problems with the GFA, but because of EPSD advice that the current plans do not offend the plot ratio requirements, the respondent does not adhere to the view in his decision and accepts that the GFA ratio to land area is satisfied. This was conceded at the commencement of the hearing and Mr Bolaram has provided later emails from EPSD to that effect.[28]

Conclusions and orders

[28] Transcript of proceedings dated 24 August 2023, page 7 line 35-page 10 line 1; Submissions from the applicants – Part 1, not paginated – email correspondence between EPSD DA Coordinator and the applicant dated 11 May-5 June 2023; and Submissions from the applicants – Part 2, pages 397-399 – Email correspondence between applicant and Mr Trent Varlow dated 8-11 November 2023

It follows that, while we agree with Mr Bolaram about some matters, we are not able, in law, to grant him a Certificate, and we cannot make the orders he seeks. It is apparent that the work needed to get the Certificate may not be extensive, but a new application is required under section 69(2B) of the Act using the Form Annexure P to Ms Bayers statement and complying with guidance provided by the respondent in its publication at Annexure Q of the Statement.
In a general sense, Mr Bolaram has succeeded in building an impressive home for his young family, and it is unfortunate that the time has been lost by unsuccessful litigation and some unfortunate certification.
Both Mr and Mrs Bolaram explained the anxiety, concern, and unhappiness that they have suffered with their young family being delayed in moving into the home. If we could find a way to make it happen immediately, we would, and we feel sure the respondent would agree that the sooner the matter is finalised, with them moving in, the better.
The Order is that the decision under review is confirmed. It is noted that the substance of the issues raised by the respondent are addressed in these reasons.
Finally, if the applicants wish to consider further litigation, before any such action, we strongly urge them to seek legal advice to ensure more time is not lost.

………………………………..

Senior Member B Meagher SC
For and on behalf of the Tribunal

Date(s) of hearing

24, 25 August 2023

Applicants:

Counsel for the Respondent

In person

J Bird

Solicitor for the Respondent:

M Bayer, ACT Government Solicitor