Co-ordinated Constructions Pty Ltd & Act Construction Occupations Registrar and Ors (Administrative Review)
[2012] ACAT 55
•17 August 2012
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
CO-ORDINATED CONSTRUCTIONS PTY LTD & ACT CONSTRUCTION OCCUPATIONS REGISTRAR & ORS (Administrative Review) [2012] ACAT 55
NO:AT11/104
Catchwords: ADMINISTRATIVE REVIEW – review of decision to make a rectification order - statutory construction of ss 35-38 Construction Occupations (Licensing) Act2004 – whether there was a contravention in carrying out building work – whether it was appropriate to issue a rectification order - whether building work carried out in compliance with the Building Code of Australia requirements - whether building work carried out in compliance with ss 42 and 49 of the Building Act 2004 – whether rectification order consistent with statutory requirements – whether rectification order should specify work to be done or be in general terms – whether rectification order should reflect contractual arrangements – whether sufficient time allowed for completion of rectification work.
List of Legislation: Building Act 1972 (ACT) (repealed), s.37
Building Act 2004 (ACT), ss.29, 42 & 49
Building Law Amendment Act 2007 (ACT)
Construction Occupations (Licensing) Act 2004-+
, ss.33-36, 38 &
123CQueensland Building Services Authority Act 1991 (QLD), s.72
List of Regulations: Construction Occupations (Licensing) Regulation 2004
(ACT),
s.42B
List of Cases: ACT Constructions Registrar v John Tokich [2006] ACTSC 89
B & T Developments (ACT) Pty Ltd and Ors & ACT Planning and Land Authority and Ors [2012] ACAT 51
JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2010] QCAT 568
R v Judge McGuire & Hanlon Homes Pty Ltd, ex parte Builders Registration Board of Queensland [1986] 1 Qd.R. 61
William Allan Growcock v ACT Construction Occupations Registrar & Or [2006] ACTAAT 23
List of Text /Papers: Building Code of Australia 2009. Vol 2. Class 1 and Class 10 Buildings
Tribunal: Dr D. McMichael, Presiding Member
Dr T. Foley, Senior Member
Mr G. Trickett, Senior Member
Date of Orders: 17 August 2012
Date of Reasons for Decision: 17 August 2012
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT11/104
BETWEEN:
CO-ORDINATED CONSTRUCTIONS PTY LTD
Applicant
AND:ACT CONSTRUCTION OCCUPATIONS REGISTRAR
Respondent
AND:
ALEX SMITH
Party Joined
TRIBUNAL: Dr D. McMichael Presiding Member
Dr T. FoleySenior Member
Mr G. Trickett Senior Member
DATE:
ORDER
The decision under review is varied as follows:
1.By substituting for the second paragraph under the heading Section 1 – Notice the following words:
The rectification work must be commenced no later than one
month after the date on which you receive the approval of the
registrar as to the adequacy of the detailed scope of works to
be prepared in accordance with paragraph 2 under the heading
Rectification order details, and completed by three months
after that date or by any later date that may be approved by the
registrar.
and
2.By substituting for paragraph numbered 2 under the heading Rectification order details the following words:
2.Engage a suitably qualified design expert or experts (on a cost
basis consistent with the existing contract between Co-
Ordinated Constructions Pty Ltd and Mr and Mrs Smith) to
provide a report and setting out a detailed scope of works
required to bring the extension into compliance with part 2.2
of the Building Code of Australia and to provide independent
certification of that compliance on completion of the works.
The registrar or a delegate of the registrar must approve the
expert(s) prior to appointment, the adequacy of the scope of
works provided by them prior to rectification being
commenced and the certification as to compliance on
completion of the works.
---------------------------------------------------
Ms L. Crebbin for and on behalf of the members of the Tribunal
REASONS FOR DECISION
Co-ordinated Constructions Pty Ltd (“the applicant”) has sought review of a decision of the ACT Construction Occupations Registrar (“the respondent”) to issue a rectification order (“the rectification order”) made under section 38 of the Construction Occupations (Licensing) Act 2004 (ACT) (“the COLA”) with respect to building work (“the building work”) carried out by the applicant at Block 42 Section 39 Curtin (“the subject premises”). Alex Smith (“Mr Smith”), the joint lessee of the subject premises was joined on his application to the proceedings on 16 November 2011.
Jurisdiction to hear and determine the appeal is conferred on the Tribunal by section 123C of the COLA and section 42B of the Construction Occupations (Licensing) Regulation 2004.
The Hearing
The matter was heard on 1 and 2 May, 30 and 31 May and 29 June 2012. The Tribunal had before it the documents provide by the respondent on which his decision was based (“the T Documents”), the Statements of Facts and Contentions of the parties, witness statements and other exhibits tendered in evidence. It inspected the subject premises on 1 May in the presence of the parties and their representatives. The applicant was represented by
Mr D Moujalli of Counsel and the respondent was represented by
Mr M Hassall of Counsel. The party joined, Mr Smith, was self-represented.
Evidence for the applicant was given by Mr Mark Holland, a Director of the applicant which holds a Building Licence, and by Mr Michael Godden, also a Director of the applicant, who has 25 years of experience in the building industry, but is not a licensed builder; and by Mr Peter Enders, a self-employed building consultant with over 60 years experience in the building industry. Evidence for the respondent was given by Mr Jeff McAdam, Deputy Registrar of Construction Occupations; by Mr Jonathon Swale, a Building Inspector appointed under the Building Act 2004 (ACT) (“the Building Act”), who inspected the subject premises on behalf of the ACT Planning and Land Authority following Mr Smith’s complaint; by Mr Andrew Montgomery, a Consulting Civil and Structural Engineer and Principal of Australian Asset Management Pty Ltd, with over 30 years’ experience in the building industry; and by Mr Donald McInness, a Structural Engineer who is a Director of Sellick Consulting. The party joined, Mr Smith gave evidence on his own behalf.
The two expert witnesses on the likely cause of the water ingress, Messrs Enders and Montgomery, gave evidence in concert and each responded to a series of questions from Counsel for the applicant and the respondent, designed to try to identify the source of the water and its means of ingress. However, there was little agreement between them as to either the source of the water or the means of dealing with it.
Background
Mr Smith is, with his wife, the lessee of 45 James Street Curtin which is the subject premises. In early 2009, Mr and Mrs Smith decided to undertake alterations and additions to the existing residence. The alterations and additions comprised a two storey extension to the rear of the residence which included the construction of a lower floor area (consisting of a rumpus, bedroom, ensuite, laundry and stairs) together with ancillary works. The extension is accessible by a flight of 4 steps down from the basement double garage of the existing residence.
Mr Smith had sketch plans drawn up by architect Richard Phillips and used those plans to obtain development approval. Mr Smith then sought a quotation for the building work to complete the alterations and additions from the applicant. The quotation provided in May 2009 by the applicant was accepted. Mr and Mrs Smith entered into a contract dated 21 May 2009 with the applicant for the building work based on that quotation.
Work commenced in or about July 2009 and was completed in or about May 2010. During construction Mr Smith and his family lived elsewhere and moved back to the subject premises on completion. Certificates of Occupancy and Use for the two stages of the work were issued on
14 September 2010 by the delegate of the Registrar, ACT Building, Electrical and Plumbing Control, following inspection and certification by BCA Certifiers (Aust) Pty Ltd (“BCA Certifiers”) who had been appointed by Mr Smith.
In September 2010, following the rupture of a garden pipe, water entered the lower floor section of the extension. This water damage was repaired at the Smiths’ expense under an insurance claim and the applicant was not informed. In early December 2010, following heavy rain, an amount of water again entered the downstairs extension through the western wall of the building work causing water damage and major disruption to Mr Smith and his family in their use of the downstairs area.
10.Following the December 2010 ingress of water, Mr Smith contacted the applicant and there was discussion about drainage measures included in the building works with respect to the lower extension and about what was required to remedy the water ingress. No agreement was reached about rectifying the water damage or about the source of the water ingress.
11.Similar water ingress events occurred subsequently in the same location in February 2011, in December 2011 and in March 2012. When attempts to resolve the issue with the applicant failed, Mr Smith lodged a complaint with the respondent in January 2011.
The Rectification Order
Following investigations by ACT Planning and Land Authority compliance auditors, the respondent gave notice dated 3 June 2011 to the applicant under section 34 of the COLA of its intention to make a rectification order with respect to the building work. This notice did not reach the applicant and a further notice of intention to make a rectification order dated 27 June 2011 was sent to and received by the applicant.
13.The requirement for notice is dealt with in section 34 of the COLA:
34Intention to make rectification order
(1)This section applies if the registrar believes on reasonable grounds that -
(a) a licensee or former licensee (the entity) has provided a
construction service otherwise than in accordance with
this Act or an operational Act; and(b) it may be appropriate to make a rectification order.
…
(2)The registrar may give the entity, and the land owner in relation to whose land the construction service was provided, a written notice that -
(a)gives details of the rectification order that may be made;
and(b)explains why the registrar intends to make the order; and
(c) invites submissions about the making of the order within
the time stated in the notice that is not less than 5 working
days after the day the entity or land owner receives the
notice.
14.Mr Holland replied on 1 July 2011 requesting documented evidence of the source and pathway of the alleged water ingress and the provision of proper plans and specifications of the building works that would be required to rectify the alleged defects. Following receipt of a response from the Deputy Registrar, Construction Services, Mr Holland again replied on 15 July, noting that evidence of the actual dates, source, volume, duration and path of the alleged flooding had not been provided to the applicant and reiterating that he would require proper plans and specifications of the work that would be required before he could comment further.
15.The respondent issued a rectification order pursuant to section 38 of the COLA on 30 September 2011 requiring rectification work to be carried out before 11 December 2011 or by any other time stipulated in writing by the respondent. The notice required that the applicant do the following:
1.Carry out building work that is required to bring the current Class One extension into compliance with the performance requirements of Part 2.2 of the Building Code of Australia Volume 2 2009.
2.Should you lack the expertise and ability to determine what is required to achieve item one or how to achieve the requirements listed in item one of this notice you must employ a suitably qualified expert to provide a report giving a detailed scope of works to bring the extension into compliance with part 2.2 of the Building Code of Australia. The registrar or one of his delegates must approve the expert prior to appointment.
3.Should you be unqualified or unable to carry out any work listed in the scope of works provided under section two of this notice, you will need to employ a suitably qualified license holder to carry out the works on your behalf. Prior to appointing this licensee, the approval of the registrar or one of his delegates must be sought to ensure the suitability of the proposed licensee.
4.In complying with item 1 (the rectification work) of this notice, Co-Ordinated Constructions Pty Ltd must –
a.Comply with all applicable laws, including the Building Act and COLA, and pay all costs of that compliance; and
b.If relevant provide the lessee of the premises relevant approvals, certificates and reports required under the Building Act, to enable the Constructions Occupations Registrar to issue a Certificate of Occupancy and Use under the Building Act in respect of the completed rectification work
c.Re-instate or make good any damage to property, services and/or equipment as a result of rectification work and non-compliant work; and
d.Remove and dispose of all waste generated by the rectification work.
Applicable Law in relation to Rectification Orders
16.A rectification order may be made under section 38 of COLA provided the requirements of section 35 are satisfied. The relevant provisions are as follows:
35When rectification order may be made
(1)This section applies if -
(a)the registrar has given an entity notice under section 34; and
(b)the entity provided the construction service, or part of the construction service, to which the notice relates; and
(c)after considering any submissions made within the time mentioned in the notice, the registrar is satisfied –
(i)the entity is contravening, or has contravened, this Act or an operational Act; and
(ii)it is appropriate to make a rectification order in relation to the entity.
…
(2)The registrar may make an order under section 38 (Rectification orders) in relation to the entity.
…
and
38Rectification orders
(1)The registrar may make an order (a rectification order) in relation to an entity requiring the entity -
(a)to take stated action to rectify work done as part of a construction service; or
(b)to demolish a building or part of a building where a construction service has been provided and provide the construction service under this Act or an operational Act; or
(c)to start or finish stated work in relation to which a construction service has been, is being or was proposed to be provided.
(2)If the entity is not licensed to do something required to be done under the order, the entity must arrange, and pay for, the thing to be done.
(3)The rectification order must state a period within which what is required to be done must be done.
17.The operation of sections 33 to 38 of the COLA were considered by Higgins CJ in ACT Constructions Registrar v John Tokich [2006] ACTSC 89 (“Tokich”) in which a decision of the ACT Administrative Appeals Tribunal (“ACTAAT”) to set aside a rectification order was upheld. In that case, which may be distinguished from the present matter, the ACTAAT concluded that there was no requirement for the builder, Mr Tokich, to have submitted plans to resolve the drainage problems arising from the development of an adjacent block, nor was it reasonable to rely on the Building Code of Australia Standard AS/NZS 3500.3.2: 1998, to impose on downstream land the responsibility to service stormwater flows from a large upstream catchment.
18.It is noted the estoppel impediment to the issue of a rectification order referred to by Higgins CJ in that judgment (at [43] and [44]) which arose as a consequence of the prior certification of the work as compliant, was specifically removed by amendments contained in the Building Law Amendment Act 2007 ACT. Section 33A and section 36(3) were inserted in the COLA for this purpose. Section 36 provides:
36 Considerations for deciding under s 34 and s 35
(1) In deciding whether it is, or may be, appropriate to make a
rectification order in relation to an entity that is contravening, or has or may have contravened, this Act, the registrar must consider the following:
(a) any injury, loss or damage caused, or that could have been
caused, by the contravention;
(b)if a rectification order is proposed—how the proposed order
may affect people affected by the contravention.
(2)The registrar may consider anything else that is relevant.
(3)However, the registrar need not consider whether the registrar,
planning and land authority, a certifier or other entity has—
(a)given a certificate, or approval under—
(i) this Act or an operational Act in relation to the construction service; or
(ii) the Planning and Development Act 2007 in relation to the
place where, or the territory lease under which, the
construction service was provided;…
19.Consideration was also given to the COLA provisions by ACTAAT Presidential Member Peedom in William Allan Growcock v ACT Construction Occupations Registrar & Or [2006] ACTAAT 23 (“Growcock”). Relevantly in that case a rectification order issued against an owner-builder was upheld on the basis that the builder had failed to comply with his obligations under the then applicable section 37(c) of the Building Act 1972 in failing to carry out the work ‘in a proper and skilful way’.
20.A recent decision by Senior Member Loftus in this Tribunal in B & T Developments (ACT) Pty Ltd and & ACT Planning and Land Authority [2012] ACAT 51 (“B & T Developments”) noted that while the purpose of the COLA is principally regulatory, a rectification order may also have some ancillary benefit to the owner of the property being built. In that case, certain elements of the building had not been constructed in accordance with the approved plans. The Tribunal found that section 29(1) of the Building Act demands that if [there are] plans for the erection or raising of a building, the building if erected or raised in accordance with the plans should comply with that Act. It follows that if a building does not comply with approved plans it does not comply with section 42(1)(d)(i) of the Building Act which requires that buildings be built according to approved plans.
21.The Tribunal was also directed to the decision of the Queensland Civil and Administrative Tribunal in JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2010] QCAT 568 (“Kelly”), where like provisions in section 72 of the Building Services Authority
Act 1991 (QLD) were considered. In that case, QCAT confirmed that responsibility remained with a builder who followed his client’s design plans resulting in defective work. QCAT held that a direction to rectify such defective work could validly be issued in such circumstances but observed at [8] that the fact that there was a defect in design may constitute a circumstance to be borne in mind in deciding whether or not to issue a direction to rectify.22.In its judgment in Kelly, QCAT also referred to R v Judge McGuire & Hanlon Homes Pty Ltd, ex parte Builders Registration Board of Queensland [1986]
1 Qd.R. 61 (“McGuire”) as authority for the proposition that a rectification order may be in general terms such as would allow builders to use their own judgment as builders with respect to the performance of the rectification work and that the Board had no power to give directions as to the manner of rectification.
Were the pre-conditions for the issue of a Rectification Order met?
23.Section 35 of the COLA imposes two relevant pre-conditions for the issue of a Rectification Order. After considering any submissions in response to the Notice of Intention, section 35 requires the respondent to be satisfied that:
·there has been a contravention of the COLA or an operational Act, and
·it is appropriate to make a rectification order in relation to the entity.
These two issues are considered in turn.
Issue (1) Has there been a ‘contravention’ by the applicant in carrying out the building work?
24.Evidence was led by the respondent and by Mr Smith that there had been water ingress into the lower-level of the extension which formed part of the building work. The water ingress following heavy rain was not an isolated event, having occurred on four separate occasions –in early December 2010; on 2 February 2011; on 11 December 2011 and on 8 March 2012. Water ingress in itself is suggestive, but not conclusive, of a ‘contravention’. The source of such ingress is in issue and will be returned to later.
The applicant has obligations with respect to the building work under
section 42 of the Building Act as follows:42 Requirements for carrying out building work
(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;
(d) building work must be carried out—
(i) in accordance with approved plans; or
(ii) if the building work involves handling asbestos or
disturbing friable asbestos—in accordance with approved
plans that comply with this Act in relation to the asbestos;
(e) for building work required to be done only by a licensed
builder—
(i) the building work must be carried out by or under the
supervision of the builder mentioned in the building
commencement notice; and
(ii) the builder’s licence must authorise the doing of the
building work;
(f) the building licensee in charge of the building work must
take—
(i) all the safety precautions stated in or with the application
for the building approval; and
(ii) any other safety precaution that a certifier or building
inspector may require the building licensee to take under
section 46.
(2) The regulations may prescribe considerations to be taken into
account to decide whether building work is carried out in a proper and skilful way.
26.Additionally, the applicant has obligations under section 49 of the Building Act to carry out the building work in a way that results in compliance with the Building Code of Australia (“BCA”)
49 Complying with building code
(1) A person must carry out building work only in a way that will, or is
likely to, result in a building that complies with the building code.
Maximum penalty: 50 penalty units.
(2) An offence against subsection (1) is a strict liability offence.
(3) For subsection (1), building work is taken not to result in a building
that complies with the building code if, for each provision of the
building code with which the building must comply—
(a) the building will not comply with the deemed-to-satisfy
provision of the building code; and
(b) the approved plans for the building work do not state an
alternative solution under the building code.
(4) For this section, building work is taken to result in a building that
complies with the building code if the building complies with the
building code as in force at the time the approved plans for the
building work were approved.
27.The Building Act defines ‘building work’ and the ‘building code’ as follows:
6 Meaning of building work
(1)In this Act:
building work means—
(a) work in relation to the erection, alteration or demolition of a
building, and includes disposal of waste materials generated—
(i) by the alteration of a building other than a building
excluded under the regulations; or
(ii) by the demolition of a building (but not part of the
building); or
(b) work in relation to repairs of a structural nature to a building.
(2) The regulations may—
(a) exempt a kind of work from the definition of building work; or
(b) include a kind of work in the definition of building work.136 Building code
(1) In this Act:
building code means—
(a) the Building Code of Australia prepared and published by the
Australian Building Codes Board as amended from time to
time by—(i) the Australian Building Codes Board; and
(ii) the Australian Capital Territory Appendix to the Building
Code of Australia; and(b) a document prescribed by regulation.
28.Two further questions arise from these provisions:
(a) Was the building work carried out in compliance with the Building Code of Australia requirements? and
(b) Was the building work carried out in compliance with the Building Act requirements?
Question (a) Was the building work carried out in compliance with the Building Code of Australia requirements?
29.The eastern wall, the western wall and the northern wall of the extension at the lower level are partly below natural ground level and all retain earth as depicted on the drawings and as observed on site. As such, there was a need to address issues of potential water ingress.
30.The BCA sets out relevant performance requirements with respect to building work with which the applicant was required to comply (“the BCA performance requirements”). The BCA performance requirements at
Part 2.2 Dampness and Weatherproofing are relevant with respect to water ingress, namely P2.2.1, P2.2.2 and P.2.2.3:
P2.2.1 Surface Water
(a) Surface water, resulting from a storm having an average recurrence
interval of 20 years and which is collected or concentrated by a
building or sitework, must be disposed of in a way that avoids the
likelihood of damage or nuisance to any other property(b)Surface water, resulting from a storm having an average recurrence interval of 100 years must not enter the building.
(c) A drainage system for the disposal of surface water must-
(i) convey surface water to an appropriate outfall; and
(ii) avoid the entry of water into a building; and
(iii) avoid water damaging the building.
P2.2.2 Weatherproofing
A roof and external wall (including openings around windows and doors) must prevent the penetration of water that could cause –
(a) unhealthy or dangerous conditions, or loss of amenity for
occupants;and(b) undue dampness or deterioration of building elements.
P2.2.3 Dampness
Moisture from the ground must be prevented from causing –
(a) unhealthy or dangerous conditions, or loss of amenity for occupants;
and(b) undue dampness or deterioration of building elements.
31.The BCA performance requirements prescribe that compliance with the required standard can be achieved by adopting a building solution that either complies with a deemed-to-satisfy provision set out in Section 3 of the BCA as an ‘Acceptable Construction Practice’ or by formulating an acceptable ‘alternative solution’. The BCA recognises compliance with selected Australian Standards as constituting an ‘Acceptable Construction Practice’ or as providing an acceptable ‘alternative solution’. Part 3.1.2 Drainage details the acceptable construction practice required to satisfy Performance Requirement P2.2.1.
32.The Tribunal notes that the explanatory information that follows 3.1.2.1 states that as a general rule: The BCA does not require the installation of drainage systems. Accordingly these requirements need only be applied when these systems are used.
33.However, and relevantly with respect to the building work, 3.1.2.2 Drainage requirements provides that drainage systems must be installed as follows, inter alia:
(b) where site conditions exist that create a need for subsoil water to
be diverted away from footings, basements, retaining walls etc –
subsoil drainage in accordance with 3.1.2.4.
34.Section 3.1.2.4 Subsoil drainage provides
Where a subsoil drainage system is installed to divert subsurface water away from the area beneath a building, the subsoil drain must –
i.Be graded with a uniform fall of not less than 1:300; and
ii. Discharge into an external silt pit or sump with –
1. The level of discharge from the silt pit or sump into an
impervious drainage line not less than 50 mm below the invert
level of the inlet (see Figure 3.1.2.4); and2. Provision for cleaning and maintenance
Relevantly the explanatory information to 3.1.2.4 states in part:
Typical locations of subsoil drainage systems are on the uphill side of cut and fill sites, adjacent to deep footings, behind retaining walls and adjacent to basement walls.
35.Part 3.3.4 Weatherproofing of Masonry details the acceptable construction practice to satisfy performance Requirement P2.2.2 and P2.2.3.
36.The Tribunal notes at 3.3.4.0 that Performance Requirement P2.2.2 is said to be ‘satisfied for weatherproofing of masonry if it is carried out in accordance with the appropriate provisions of AS 3700’. It further notes that at 3.3.4.5 that the requirements for damp-proof course and flashing in sub-floor structures can be satisfied using a series of location specifications provided for in Figure 3.3.4.1. Location of DPCs and Flashings in sub-Floor Structures.
37.In the light of these standards, and the performance requirements of the BCA, the Tribunal considered the measures taken by the applicant at locations in the building work and whether these measures adhere to the standards.
(a)The Northern, Southern and Eastern Walls
38. The northern and southern walls have been constructed below ground level in reinforced concrete block work with a paint-on membrane to the outer faces. External to the walls, at the base of the wall, an agricultural drain is installed and drainage gravel that extends up to near the finished ground level. The walls above are constructed with brick-veneer, rendered and painted. There is a stud framed wall next to this structure which combines with the brickwork above the ground level to form a traditional brick-veneer wall. The eastern wall has been constructed above the new ground level in brick veneer, rendered and painted, with weepholes to allow any accumulated moisture to escape.
39.The applicant submitted that they relied upon the adoption of certain options provided for in Figure 3.3.4.1 of the BCA to satisfy the performance requirements for weatherproofing and dampness with respect to the northern, southern and eastern walls and the floor slab. In particular, the applicant’s evidence was that the P2.2.2 weatherproofing and P2.2.3 dampness requirements were addressed by the adoption of details (a) and (e) depicted in Fig. 3.3.4.1: Detail (a) Masonry veneer was adopted for the eastern wall and Detail (e) Weatherproofed masonry veneer was adopted for the north and the south walls in combination with retaining walls as detailed by the structural engineer.
40.The detail at Fig. 3.3.4.1 (e) however depicts a wall that is above ground level and not a wall that is below ground level. Mr Godden submitted that this detail was adopted partly as it would allow water that may collect in the spoon drain installed along the west side of the new slab to work its way to the eastern wall and to drain away through the weepholes as depicted in Fig 3.3.4.1 (a). However the Tribunal’s understanding of the weatherproofed masonry veneer detail (e), is that the adoption of this detail assumes that there would be no moisture entering the cavity. The Tribunal further finds that the adoption of this method of including an internal drainage system did not comply with the deemed-to-satisfy provision set out in the BCA as an ‘Acceptable Construction Practice’ and therefore does not formulate an acceptable ‘alternative solution’ requirement of the BCA as it is intended in this design that water will lie within the cavity. As such, the performance requirements of P2.2 Dampness and Weatherproofing were not adequately met on the northern and southern walls.
(b) The Western Wall
41.The western wall is made up of new mass concrete which underpins the original strip footings and was constructed in alternate bays resulting in construction joints approximately every 1.2m, above which is the original footing and external wall of the house. The stud framed wall abutting this structure forms the internal wall of the lower level of the extension.
42.The applicant’s evidence was that, as provided for in Sellick drawing No.2/5, a spoon drain was constructed in front of the underpinnings on the western side of the downstairs extension. Mr Godden’s initial evidence was that he had constructed this drain with a fall in a manner different from the approved plans in order to make it a more effective moisture and water entry prevention measure and that this drain was connected to the external agricultural line outside the building. Mr Godden later amended his evidence with respect to the connection of the spoon drain to the agricultural drain outside the building. His revised evidence was that the spoon drain was not connected to the external drainage system, but rather was intended to drain via the building cavities along the southern and northern walls to the eastern wall. In addition, Mr Godden’s evidence was that a termite and vapour barrier plastic sheet was installed vertically in front of the spoon drain and behind the stud framed wall. This was pinned to the existing brick wall above the underpinning and turned down under the bottom plate of the stud wall, with the plastic sheet junctions taped.
43.The applicant did not rely on the adoption of any specific option from
Fig. 3.3.4.1 for the western wall, therefore, the BCA requires that the performance requirements must be satisfied by an acceptable alternative solution.
Tribunal’s Conclusions on Question (a)
44.The Tribunal has concluded that neither the architect, nor the structural engineer, nor the certifier engaged by Mr Smith, nor the applicant considered that the underpinning on the western wall of the downstairs extension that retains soil under the existing house would require anything more than this small surface drain and plastic sheeting to contain any moisture that may accumulate in the soil in order to meet the requirements of the BCA. Subsequent rainfall events showed that this assumption was not well founded.
45.The Tribunal finds that there needed to be a method of subsoil drainage behind the underpinning structure in the western wall consistent with the relevant sections of Part 3.1.2 and Part 3.3.4 of the BCA in order to prevent water ingress into the downstairs extension and satisfy the BCA performance requirements Part 2.2 Dampness and Weatherproofing.
46.The BCA required, at 3.1.2.0 for the satisfaction of performance requirement P2.2.1, the adoption of a drainage system ‘designed and constructed in accordance with either AS/NZS 3500.3 – Stormwater drainage, or AS/NZS 3500.5 – Domestic installations, Section 5 – Stormwater drainage’.
47.AS/NZS 3500.3:2003 Plumbing and drainage - Stormwater drainage provides criteria for materials, design, installation and testing of roof drainage systems, surface drainage systems and subsoil drainage systems to a point of connection. The Tribunal finds that no such adequate measures were adopted to address these requirements on the western wall.
Question (b) Was the building work carried out in compliance with the Building Act requirements?
48.The applicant’s evidence was that it had satisfied the section 42 requirements notwithstanding the water ingress events. Specifically with respect to the section 42 obligations under the Building Act, it was argued that the builder simply completed the building work ‘in a proper and skilful manner (42(1)(c)) and ‘in accordance with the approved plans’ (42(1)(d)(i)).
49.This assertion overlooks the fact that, even if the building work was done in accordance with approved plans (B & T Developments), carrying out building work ‘in a proper and skilful manner’ must include meeting the specific requirements of the BCA performance requirements Part 2.2 Dampness and Weatherproofing detailed above. Building work is not completed in a proper and skilful manner where water ingress into the completed building work occurs on a series of occasions.
50.With respect to the additional obligations imposed by section 49, the applicant’s evidence was that the only building work carried out by the applicant that could give rise to an obligation to ‘carry out building work only in a way that will, or is likely to, result in a building that complies with the building code’ (section 49(1)) was work done in accordance with the approved plans. The applicant’s submission was that since that work was not the work which resulted in the weatherproofing and dampness failures, no obligation on the part of the applicant can arise. This however begs the question that while the approved plans may have been defective or insufficient in not adequately addressing the work necessary to meet the BCA performance requirements as to weatherproofing and dampness, this did not excuse the applicant’s own responsibility to meet these requirements. Kelly is clear authority for such a proposition.
51.The Tribunal finds that the applicant did not ‘carry out the work in a proper and skilful manner’ as required by section 42(1)(c) of the Building Act in that the work allows repeated water penetration after heavy rain. The Tribunal also finds that the building work carried out by the applicant did not result in a ‘building’ that was compliant with the requisite provisions of the BCA, and therefore the requirements of the Building Act were not met.
Tribunal’s Conclusions on Issue 1
52.Accordingly the Tribunal finds that there is a ‘contravention’ by the applicant in carrying out the building works required as a prerequisite by section 35(1)(c)(i) of COLA.
Issue (2)Was it ‘appropriate’ for the respondent to issue a rectification order?
53.The second precondition imposed by section 35 of the COLA is that the respondent must determine whether it is appropriate to issue a rectification order under section 38 notwithstanding that there has been a ‘contravention’.
54.The applicant’s submission was that it was inappropriate to issue a rectification order because the applicant lacked design responsibility, such as would have allowed it to carry out the building work in a manner that would have avoided a contravention.
55.The Tribunal makes the following relevant findings as to fact:
(a)In or about 2005, Mr Smith arranged for plans for the building work to
be prepared;
(b)In or about 2009, Mr Smith engaged Richard Phillips, Architect, to
finalise such plans;
(c) In or about April 2009, Mr Smith approached David Greig, Engineer,
to give structural advice for the building work;
(d)In or about May 2009, Mr Smith engaged BCA Certifiers to provide
certification services with respect to the building work;
(e)In or about July 2009, (at the suggestion of the applicant) Mr Smith
engaged Sellick Consultants (“Sellick”) to prepare a certificate of site classification and prepare structural engineering drawings with respect to the building work.
The Tribunal notes that none of these consultants, nor the plans they produced, adequately addressed the question of sub-surface water drainage.
56.On 21 May 2009, Mr and Mrs Smith entered into a contract with the applicant for the building work. Relevant terms of the contract provided:
a. The builder will carry out the Works shown on the Approved Plans and described in the Specifications and on the terms of this Contract in a proper and skilful manner.
b. The standards of construction required by the Building Act 2004 (ACT) relating to buildings of the type covered in this Contract form part of the Contract and if inconsistent with this Contract the higher standard prevails.
57.Additionally, the contract set out a list of ‘exclusions/clarifications’ contained in the applicant’s quotation letter of 13 May 2009 annexed to and forming part of the contract. Relevantly, included in the list of ‘exclusions/clarifications’ were ‘design fees by others’.
58.The applicant’s submission was that because it was specifically excluded from design responsibility, it was required to carry out the building work only in accordance with the approved plans prepared and certified by others. This assertion was maintained even if the effect of carrying out the building work in accordance with the approved plans was to result in a contravention. The Tribunal rejects this argument. There was evidence before the Tribunal that approved plans were in fact amended or departed from at the suggestion of the applicant when the applicant considered it desirable or necessary.
59.Evidence was given by Mr Michael Godden that he was routinely present on a daily basis on site on behalf of the applicant. His evidence was that he had constructed a spoon drain in front of the underpinnings on the western side of the downstairs extension. The spoon drain in Sellick drawing No.2/5 indicated no slope or fall to remove water or moisture from the wall cavity. Mr Godden’s evidence was that he constructed the drain with a fall in a manner different from the approved plans in order to make it a more effective moisture and water entry prevention measure.
60.There was further evidence from Mr Godden that he had requested design amendments from Sellick to depart from the approved plans with respect to the retaining wall detail to the southern side of the building work, so as to change the construction from a brickwork wall to a reinforced concrete block wall. This request was accepted by Sellick and resulted in amended plans being approved by Sellick as certifiers.
61.Further Mr Smith gave evidence that Mr Godden sought agreement from him and from Richard Phillips, the architect, for amendments to be made to the approved plans with respect to roof drainage for the rear deck of the extension. Evidence was given that Mr Godden had expressed the view that the box gutters for the roof over the deck as configured in the approved plans were unsuitable and risked water overflowing into the house or the ceiling cavity of the house. Mr Godden made a suggestion for an altered design for the drainage which would avoid the risk of overflow. The architect accepted this suggestion and redesigned the roof plan consistent with this variation, which was subsequently approved in an amended plan.
62.The Tribunal finds that while Mr Smith had, in our view unwisely, taken on much of the design responsibility for the building work, this did not abrogate the applicant’s obligations to satisfy itself that the plans provided to it would enable it to meet the requirements of the BCA. The Tribunal’s view is that the applicant was not constrained so as to prevent it from addressing contraventions in carrying out the building work such as would make it inappropriate for the respondent to issue a rectification order.
Tribunal’s Conclusion on Issue 2
63.The Tribunal finds that the second requirement of section 35 of the COLA - that it is appropriate to issue a rectification order - has also been met.
Is the Rectification Order consistent with the statutory requirements?
The applicant submitted that the issue of the rectification order was not consistent with the statutory requirements because the order lacked specificity with respect to the building work required to be done by the applicant, and because the order allowed an inadequate time period for compliance.
65. The relevant paragraph of the order with respect to the rectification work provided that the applicant was to:
1. Carry out building work that is required to bring the current Class One extension into compliance with the performance requirements of Part 2.2 of the Building Code of Australia Volume 2 2009.
66.The notice was issued on 30 September 2011 and the building work required was to be carried out before 11 December 2011. This is a period of a little over nine weeks. The order further provided that the period allowed could be varied so as to provide for completion of the rectification work ‘by any other time stipulated in writing by the respondent’.
67.Evidence was given on behalf of the respondent that the order was intentionally framed in general terms. Mr McAdam, a deputy registrar with the respondent, in his evidence accepted that the rectification order did not specify the building work which the applicant was required to carry out. The stated intention of the rectification order was to require the builder to remedy the building work to ensure compliance with Part 2.2 of the BCA performance requirements. It was a deliberate decision not to specify details of the work that would be required.
68.The respondent’s evidence was that if the applicant was uncertain as to specifics of how to remedy the building work to ensure compliance it should rely upon paragraph 2 of the order which provides :
2. Should you lack the expertise and ability to determine what is required to achieve item one or how to achieve the requirements listed in item one of this notice you must employ a suitably qualified expert to provide a report giving a detailed scope of works to bring the extension into compliance with part 2.2 of the Building Code of Australia. The registrar or one of his delegates must approve the expert prior to appointment.
69.As indicated above, the decision in McGuire provides authority with respect to the scope of any such rectification order. Andrew ACJ, in his judgment makes it clear that the respondent has no power to go outside the terms of the contract between the builder and the owner, except as provided for in the relevant legislation. In particular, the court held that there was no power to order the provision of ‘extra structure to the building constructed’ [67:20]. Further in a concurring judgment, McPherson J said any requirement placed on the builder that would be in conflict with the terms of the building contract could not reasonably be imputed to the relevant legislation. McPherson J said [72:5] ‘it is builders to whom orders…are directed. It may well have been intended that they should use their own judgment as builders with respect to the performance of rectification work’.
70.The scope of building work ordered to be carried out under a rectification order must necessarily be constrained to providing simply that the work done will have the consequence of addressing the breach or contravention. This supports an order in general terms and indeed it seems that the respondent is limited to making such a general order only. It is the Tribunal’s view that the applicant should be allowed an exercise of judgment, guided in the present circumstances by appropriate expert advice.
71.The Tribunal further finds that while the time period of approximately two and a half months for compliance is short, the order does provide for that period to be varied by the respondent to allow for a time period which will permit compliance and that, therefore, an inadequate time for compliance is not imposed.
Tribunal’s Conclusion on whether the Rectification Order is consistent with the statutory requirements
72.The Tribunal finds that the order made is consistent with the statutory requirements. However, we do not believe it provides an equitable outcome. We consider that the applicant needs assistance to find a solution to the water ingress problem. The means provided in paragraph 2 of the order for the applicant to inform itself as to what is required to ensure compliance with Part 2.2 of the BCA performance requirements is, in our view, inequitable.
73.The applicant is entitled to know exactly what needs to be done to remedy a contravention. The difficulty is that the expert evidence before the Tribunal shows that the cause of that water ingress is uncertain and it remains unclear as to what needs to be done to remedy it.
74.Expert evidence given on behalf of the applicant by Mr Enders was that the water ingress was due to surface water entering the downstairs extension in one of several ways. His view was that surface water either:
(i) flowed down the driveway, across the garage floor and down into the downstairs extension, and/or
(ii) originated at the front of the residence and then collected on the top of the existing footings on the western wall of the building work, travelled along the surface of the footings where it then seeped through the existing footings at the new underpinning structure and overflowed down the face of the underpinning structure and entered the western wall cavity of the downstairs extension and then into the interior of the lower level extension.
75.Expert evidence given on behalf of the respondent by Mr Montgomery was that the water ingress was due to subsurface water seeping down through the new underpinnings following major rain events and pooling or collecting in the continuous spoon drain in front of the underpinnings on the western wall and then overflowing under the protective plastic termite barrier into the wall cavity and into the interior of the lower level extension.
76. The Tribunal notes that during the view of the site, levels were taken which confirmed that the garage floor slopes a little towards the front (the west) and that while it might be possible for surface water to still enter the garage, the Tribunal accepts Mr Smith’s evidence that on the rare occasions when water did enter (when the garage door was open during heavy rain) it drained along the north side of the garage and out the rear door and not across the garage floor as Mr Enders evidence suggested.
77.The Tribunal finds that the most likely source of the ingress is subsurface water entering the downstairs extension in the manner suggested by Mr Montgomery. Nonetheless the actual flow-path of that water remains unclear.
Conclusion
76.The Tribunal concludes that, while a Rectification Order should be made, its terms need to be varied to address the uncertainty as to the means of rectification and to reflect the responsibility of Mr and Mrs Smith to meet the additional design costs as provided under their contract with Co-ordinated Constructions Pty Ltd.
78.Additionally, the Tribunal is of the view that Mr Smith should take additional steps at his own expense to minimise any source of water ingress, and in particular should arrange the connection of the front lawn sump to the stormwater system.
Decision
The Tribunal varies the decision under review, by substituting for the second
paragraph under the heading Section 1 – Notice the following words:
The rectification work must be commenced no later than one
month after the date on which you receive the approval of the
registrar as to the adequacy of the detailed scope of works to
be prepared in accordance with paragraph 2 under the heading
Rectification order details, and completed by three months
after that date or by any later date that may be approved by the
registrar; and
by substituting for paragraph numbered 2 under the heading Rectification
order details
the following words:
2. Engage a suitably qualified design expert or experts (on a cost
basis consistent with the existing contract between Co-
ordinated Constructions Pty Ltd and Mr and Mrs Smith) to
provide a report and setting out a detailed scope of works
required to bring the extension into compliance with part 2.2
of the Building Code of Australia and to provide independent
certification of that compliance on completion of the works.
The registrar or a delegate of the registrar must approve the
expert(s) prior to appointment, the adequacy of the scope of
works provided by them prior to rectification being
commenced and the certification as to compliance on
completion of the works.
...............………………………………..
Ms L. Crebbin, General President for and on behalf of Dr D. McMichael, Presiding Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO:
APPLICANT: CO-ORDINATED CONSTRUCTIONS PTY LTD RESPONDENT: ACT CONSTRUCTION OCCUPATIONS REGISTRAR
COUNSEL APPEARING: APPLICANT: Mr D Moujalli
RESPONDENT: Mr M Hassall
SOLICITORS: APPLICANT: ACT Government Solicitor
RESPONDENT: Baker, Deane & Nutt
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S: Dr D McMichael, Senior Member
Dr T Foley, Senior Member
Mr G Trickett, Member
DATE/S OF HEARING: 1, 2, 30 & 31 May 2012 PLACE: CANBERRA
DATE/S OF DECISION: PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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3
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