Construction Occupations Registrar v B&T Constructions (ACT) Pty Ltd and Ors (Occupational Discipline)
[2015] ACAT 24
•24 March 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
CONSTRUCTION OCCUPATIONS REGISTRAR v B&T CONSTRUCTIONS (ACT) PTY LTD & ORS (Occupational Discipline) [2015] ACAT 24
OR 14/01
OR 14/02
OR 14/03
Catchwords: OCCUPATIONAL DISCIPLINE – construction - occupation-builder’s licence - Construction Occupations (Licensing) Act 2004 – disciplinary proceedings sections 55 and 56 – rectification order - whether consent orders valid - role of certifier in overseeing rectification work
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 66
Building Act 1972
Building Act 2004 ss 42, 49
Construction Occupations (Licensing) Act 2004 ss 6, 20, 26, 28, 33-47, 55, 56
Planning and Development Act 2007 (ACT) ss 355
Unit Titles (Management) Act 2011 ss 27, 28
Subordinate
Legislation: Building Regulations 2004 ss 18, 19 (repealed)
Construction Occupations Licensing Regulations 2004 s37
sch 1
Cases cited:Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621
B&T Constructions (ACT) Pty Ltd & Ors v ACT Planning and Land Authority & Ors [2012] ACAT 51
B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and The Owners – Units Plan 3324 [2013] ACTSC 219
B & T Constructions (ACT) Pty Ltd v ACT Planning and Land Authority and Construction Occupation Registrar [2014] ACAT 75
Boddington v British Transport Police [1998] UKHL 13
Commissioner for Housing v Key [2004] ACTCA 17
Craig v State of South Australia (1995) 184 CLR 163
Fekete v Construction Occupations Registrar [2013] ACTSC 45
House v The King (1936) 55 CLR 499
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
Lilley v Comcare [2011] AATA 47
Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Perry v Comcare [2006] FCA 33
Prasad v Minister for Immigration and Multicultural Affairs (1985) 6 FCR 155
Re Ernest Ralph Jonsson and Marine Council [1990] AATA 192
James and Military Rehabilitation and Compensation Commission [2009] AATA 842
Re Refugee Review Tribunal: Ex parte Aala (2000) 204 CLR 82
Sunol v Collier [2012] NSWCA 14
Sziai v Minister for Immigration and Citizenship [2008] FCA 1372
Wicks v R [1997] UKHL 21
Tribunal: Mr A. Anforth – Senior Member
Mr G. Trickett – Senior Member
Date of Orders: 24 March 2015
Date of Reasons for Decision: 24 March 2015
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL OR 14/01
OR 14/02
OR 14/03
RE:CONSTRUCTION OCCUPATIONS REGISTRAR
Applicant
AND:B&T CONSTRUCTIONS (ACT) PTY LTD
First Respondent
OR 14/01
AND:IVAN BULUM
Second Respondent
OR 14/02
AND:CORNELIUS HANK VAN ROON
Third Respondent
OR 14/03
Tribunal:Mr A. Anforth – Senior Member
Mr G. Trickett – Senior Member
Date of Order: 24 March 2015
FINDINGS AND ORDERS
OR 14/01
The Tribunal finds that:
(a)The First Respondent has committed a ground for occupational discipline in respect of the non-compliance with the rectification order for items of the Schedule relating to the Empire Apartment shown at paragraph 479 of these Reasons.
(b)The First Respondent has committed a ground for occupational discipline in respect of the non-compliance with the emergency rectification order by removing the propping from the Elara Apartment balconies.
The Tribunal orders that:
1.Application OR 14/01 is to be re-listed so that directions can be given for a hearing as to penalty.
OR 14/02
The application for disciplinary orders in respect of the Second Respondent is dismissed in its entirety.
OR 14/03
The Tribunal notes that on 16 December 2014 the applicant gave notice that it discontinued the application for disciplinary orders in respect of the Third Respondent and the application was dismissed.
………………………………..
Ms L. Crebbin, General President
for and on behalf of the Tribunal
REASONS FOR DECISION
Summary
1.The matter concerned an application for disciplinary action by the Construction Occupations Registrar (the Registrar) against each of the three Respondents arising out of building work at two separate apartment complexes in the ACT, known as Empire Apartments (Empire) and Elara Apartments (Elara).
2.The First Respondent, B & T Constructions (ACT) Pty Ltd (B&T) is a building company of which the Second Respondent and his wife are the sole shareholders and directors. Mr Bulum is the person in day to day control of the company. Section 28 of the Construction Occupations (Licensing) Act 2004 (COLA) provides that for a company to carry out building work it must have a ‘nominee’. B & T holds a class A builder’s licence and Mr Bulum holds a class B building licence. He is a nominee of the company for some purposes but there is an issue as to whether he was a nominee for the B&T at Empire or Elara, which were building works that required a class A licence.
3.The Third Respondent (Mr Van Roon) was also a nominee of the company and holds a class A building licence and was the nominee for Empire and Elara. The Registrar ultimately withdrew the disciplinary action against Mr Van Roon but his involvement still remained essential to the events that unfolded.
4.Nominees have the function of ensuring that the company complies with the COLA and the Building Act 2004 (BA).[1]
Empire Apartments
[1] Section 31 of the Construction Occupations (Licensing) Act 2004
5.The issue with Empire initially concerned some 46 items of rectification work.[2] This list of items plays a major role in this case and for convenience is here after referred to as ‘the Schedule of Items’ or the Schedule. The Schedule of Items was initially prepared by the Owners Corporation and was used in a cut and paste fashion by all stakeholders including by the Tribunal in an earlier case related to this matter[3] . The Schedule of items included not just the list of items said to require rectification but also annexed descriptive documents that described the nature of the alleged non-compliance with the BA and the physical consequence of the non-compliance for each item. Any reference to the Schedule in these Reasons should be read as a reference to all of these documents.
[2] Exhibit A17
[3] B&T Constructions (ACT) Pty Ltd & Ors v ACT Planning and Land Authority & Ors [2012] ACAT 51
6.On 21 September 2011 the Registrar made a Controlled Activity Order (CAO), against the company and Mr Van Roon (but not Mr Bulum) in respect of Empire under section 355(2)(a) of the Planning and Development Act 2007 (PDA). On the same day the Registrar made an Emergency Rectification Order (ERO)[4] in respect of structural issues at Empire against the company only. The ERO made in respect of Empire is not the subject of the present disciplinary proceedings. On 18 October 2011 the Registrar made a rectification order (RO) against the Respondents in respect of Empire.
[4] Section 39(1)(a) of the Construction Occupations (Licensing) Act 2004
7.In broad terms rectification orders under the COLA are made where there are breaches of building approvals, including failures to comply with approved plans and the Building Code of Australia (BCA). Controlled Activity Orders are made under the PDA in relation to things done without, or contrary to, planning approvals under that Act.
8.The rectification order for Empire (including the CAO) were the subject of earlier proceedings in ACAT[5] which involved only the First and Third Respondents and not Mr Bulum. In those proceedings the parties reached agreement about consent orders on 27 June 2012 and 11 July 2012 and the Tribunal made orders in those terms. There were three items of the original list of 46 on the Schedule that remained in dispute in those proceedings, items 15, 25 and 38. These items were the subject of an order of the Tribunal of 6 August 2013 in which the Tribunal confirmed the Registrar’s orders.
[5] B&T Constructions (ACT) Pty Ltd & Ors v ACT Planning and Land Authority & Ors [2012] ACAT 51
9.B&T appealed the decision on items 15, 25 and 28 to the Supreme Court.[6] His Honour Justice Burns essentially dismissed the appeal. This decision is currently on appeal to the ACT Court of Appeal. The parties in the present proceedings agreed that the alleged non-compliance with items 15, 25 and 28 should not be considered by this Tribunal.
Elara Apartments
[6] B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and The Owners – Units Plan 3324 [2013] ACTSC 219.
10.On 20 September 2012 the Registrar made an ERO in relation to Elara requiring propping of balconies that were thought to be in danger of collapse. The Registrar formed the view that the balcony floors had not been installed in accordance with the relevant Australian Standard. He formed this view on the basis of a report of August 2012 from Mr Wilson, engineer, with Advanced Structural Designs (ASD) and a letter of 24 August 2012 from the suppliers of the floor to the balconies, Ultrafloor.
11.The Respondents initially complied with the ERO for Elara and inserted the propping. On 19 December 2012 the Respondents sought the Registrar’s consent to remove the propping based on a report of 29 November 2012 by Mr Tingcombe, an engineer at AWT Consulting Engineers (AWT) who opined that the balcony structures were sound and there was no danger of collapse. On 20 December 2012 the Respondents removed part of the propping from ‘area 5’ without the consent of the Registrar.
12.In a telephone conversation on 9 January 2013 Mr Moysey for the Registrar ordered Mr Bulum to restore the propping. The Respondents declined to do so.
13.There is a dispute between the parties concerning the reasonableness of the report of Mr Wilson upon which the Registrar relied for the Elara ERO and whether the propping was ever needed. There has been no structural deterioration in the time since the propping was removed and not replaced.
The current application
14.The Registrar commenced the present proceedings on 30 January 2014 on the basis that the Respondents had failed to comply with the consent orders (including the CAO) for Empire and had breached the ERO pertaining to Elara. There were separate disciplinary applications in respect of each of the three Respondents (OR 14/01- B & T; OR 14/02- Mr Bulum; OR 14/03 – Mr Van Roon).
15.On 25 July 2014 the Registrar filed amended applications in respect of the company and Mr Bulum (but not Mr Van Roon) which form the basis for the present proceedings.
16.The amended applications were heard on 4, 6, 7, and 11 August 2014 and the decision reserved for final written submissions. The parties agreed that the decision should be limited to the issue of whether the Respondents had committed any breaches of the Registrar’s orders (the liability issue) and if so then the issue of penalty would be dealt with on a later occasion.
17.The case presented the Tribunal with difficulties arising from the volume of documentary evidence and the need to examine each rectification item on the Schedule for Empire at a close level of detail. There were also extensive disputes on a range of issues of law.
18.The Tribunal’s findings on each item at Empire are set out in the Annexure, which forms part of these Reasons.
19.A summary of these findings is set out at paragraph [479] below.
20.The Tribunal concluded that the removal of the propping at Elara was a breach of the ERO of 20 September 2012.
21.For reasons given below, the Tribunal concluded that Mr Bulum was not the responsible nominee at either Empire or Elara and was not the party responsible for any of the breaches. The responsible parties were B & T and Mr Van Roon. Given the Registrar withdrew the application against Mr Van Roon, B & T was the only party responsible for the breaches.
The identity and role of the various people involved
22.The people involved in the proceedings are as follows:
Mr Anderson – Chair of the Owners Corporation for Empire
Mr Anlezark – Certifier retained by Owners Corporation
Mr Bulum – The Second Respondent and director and nominee of the First Respondent
Mr D’Elboux – Project Manager for the Respondents
Mr Falcetta – Solicitor for the Respondents
Mr Gaze- Team Leader of Investigations within the Environment and Sustainable Development Directorate (ESDD)
Mr Montgomery, engineer with Australian Asset Management Pty Ltd appointed by Owners Corporation
Mr Morrison – from Ultraflloors
Mr Moysey – Deputy Construction Occupation Registrar
Mr McInnis – Engineer employed by the First Respondent
Ms Sault – Engineer from AWT initially retained by the Registrar but then retained by the Respondents
Mr Tingcombe – Engineer from AWT initially retained by the Registrar but then retained by the Respondents
Mr Van Roon – Third Respondent and nominee of the First RespondentMr Wilson – Engineer retained by the Registrar
23.At the hearing the parties agreed that the Schedule of Items, including its attachments, formed part of the Registrar’s orders[7].
[7] Transcript 6 August 2014 at pages 45 & 46
24.The Registrar later abandoned items 11, 12, 13, 14, 15, 25, 28, 33, 34, 35, 37, 38, 39, 40, 41, 43, 45 and 47.
A brief description of the Schedule of Items at Empire that remained in contest at the end of the hearing
ItemDescription
1Make good upper car park drainage
2Make good lower car park drainage
3Correct the position of grated drain on drive
4Fix water seepage into southern side of the basement
5Fix water membranes causing leakage into ceiling of lower car park
6Determine cause of balcony leaching and remedy
7Make good drummy rendering
8Install addition steel support in floor support
9Make good shotcrete wall alignment
10Demonstrate that Ultrafloor met design standards and rectify
16Roof drainage repairs
17Regularise unsupported storerooms
18Regularise rear bluestone wall by lodging amended DA
19Install roller door in waste area
20Build the toilet cubicle per approved plan
21Build masonry wall in BBQ area
22Install ground floor patio gates
23Conform roof hatch access to current plans
24Conform upper balcony railings to plans or amend plans to what is in place
26Build AC roof enclosures
27Build membrane roof to conform with plans or change the plans to what is
29Build new gutters and downpipes per the plans
30Make good fire safety deficiencies
31Build hot water room sump
32Install perforated basket on sump
36Complete sills on units 24 and 30
44Install irrigation
46Make good external wall to prevent northern wall leakage
THE HISTORY OF THE MATTER
The Registrar’s applications
25.The Registrar filed his three applications for disciplinary action pursuant to section 56(1)(a) of the COLA against the Respondents on 30 January 2014. An amended application was filed in each matter on 25 July 2014 seeking various orders under section 66 of the ACT Civil and Administrative Act 2008 (ACAT Act) that included cancellation of the licences of all three Respondents for five years.
26.Attachment B to the application sets out the case for the Registrar separately in relation to Empire and Elara. In paragraphs 12-13 of Attachment B in relation to Empire, the Registrar asserts that the Consent Orders made by the Tribunal required the Respondents to carry out rectifications within a particular time frame and that those rectifications remain undone.
27.Annexed to the amended applications were:
(a)statements from Mr Gaze dated 3 September 2012, 12 September 2013, 29 May 2013 and 22 January 2014 (exhibits A6, A7 and A8);
(b)a statement from Mr Anlezark dated 28 May 2013 (exhibit A9);
(c)the report of Mr Wilson, engineer of August 2012 annexed to a complaint from the Owner’s Corporation (exhibit A4A);
(d)the ERO of 20 September 2012 (exhibit A4B);
(e)various emails from Mr McInnes of B&T dated 30 November 2012, 7 and 19 December 2012 with attachments (exhibits A4C, A4D and A4E);
(f)various emails from Mr Wilson dated 24 December 2012 and 26 December 2012 (exhibits A4F,G and H);
(g)record of inspection by ESDD of 9 January 2013 with attachments (exhibits A4I);
(h)email from Mr Tingcombe dated 9 January 2013 (exhibit A4J);
(i)letter from Mr Bulum to ACTPLA dated 4 March 2013 (exhibit A4K);
(j)letter from Mr Moysey to Mr Bulum of 7 March 2013 (exhibit A4L);
(k)show cause notice to the Respondents dated 27 March 2013 (exhibit A4M);
(l)Respondents’ response to the show cause notice dated 3 May 2013 with attachments (exhibit A4P);
(m)evidential certificate concerning licensing of Mr Bulum (exhibit A2)
(n)evidential certificate concerning licensing of the company (exhibit A1); and
(o)evidential certificate concerning licensing of Mr Van Roon (exhibit A3).
The original rectification order of 18 October 2011 for Empire (exhibit A9)
28.A copy of the order of 18 October 2011 in relation to Empire appears as Annexure A to the statement of Mr Anlezark of 28 May 2013 (exhibit A9). The order required the work to be commenced in 30 days and completed by 2 March 2012.
29.The order annexes and relies upon a number of reports:
(a)an undated report from Mr Montgomery, engineer, of Australian Asset Management Pty Ltd (AAM) on the structural integrity of Empire;
(b)reports of Mr Wilson, engineer of June 2011 and 19 September 2011. The report of June 2011 addressed the adequacy of the Ultrafloor slabs in Empire. Mr Wilson noted the advice from Ultrafloor to the effect that their product is adequate for the purpose of Empire and in the manner in which it was used. Mr Wilson expresses his reservations.
(c)a report of Mr Katauskas, geotechnical engineer, date 8 January 2011 aimed at identifying the cause of water seepage into the underground car park and ground floor of the building. The authors come to the view that the problem lies in the failure of the basement drainage system and the inability of the basement walls to withstand both hydrostatic and earth pressures;
(d)an undated report from Dysen Pty Ltd on fire ratings in Empire. The authors found that fire rating documentation was inadequate. They could not gain access to utilities embedded in the ceiling and walls to inspect their fire rating. There were problems with the fire doors, the fire alarms and the lift shafts;
(e)a report of 10 June 2010 from Eric Martin & Associates, architects concerning the compliance of the common areas with the disability access requirements of ACTPLA and the BCA. Minor problems were identified; and
(f)a report of 11 January 2011 from Mr Taylor, builder, concerning water penetration and façade issues. Mr Taylor identified water ingress from defective waterproofing in the exterior planter boxes; failure of water proofing on some balconies; and drummy rendering. He offered solutions to the water proofing issues but thought that the drummy rendering problem was inevitable over time irrespective of the water ingress.
30.The rectification adopted the Schedule of Items and divided the items between alleged breaches of sections 49 and/or 42(1)(d)(i) of the BA.
(a)the breaches of section 49 were those in items 1, 2, 4, 5, 6, 7, 8, 9, 10, 12, 30, 36, 46; and
(b)the breaches of section 42(1)(d)(i) were those in items 1,2, 3,4, 15 – 29, 31, 32, 39.
31.Section 42(1)(d) of the BA is the general provision that catches failures to build in accordance with the approved plans and section 49 is a specific provision dealing with compliance with the BCA. There is also some overlap between section 49 and section 42(1)(a) of the BA in that the latter deals with the failure of materials that comply with the BCA. The Registrar did not explicitly rely on breaches of section 42(1)(a). This issue is addressed below.
The original ERO for Empire - 20 September 2011 (Annexure B of exhibit A8)
32.This order arose from the report of Mr Wilson expressing his concerns about the structural integrity of the slab flooring at Empire. The ERO required the company to appoint an engineer to inquire into and report on this issue. Mr Tingcombe was appointed by the Registrar and reported that he found no problems. The ERO did not proceed further, but the issue of the structural integrity did continue to feature in the Schedule of Items.
The original CAO for Empire - 3 November 2011
33.The CAO was issued on the basis of non-compliance with the development approval under the PDA.
34.The order was framed in terms of the same Schedule of Items as was used in relation to the rectification order. The original CAO order listed items 12, 15, 17, 19, 20, 21, 22, 24, 25, 26, 28, 29, 42, 43, 44.
35.During the hearing the Tribunal was advised that items 15, 18, 25, 27, 28, 43, 47 did not require development approval and were therefore wrongly included in the CAO. This was not to say that they were still not relevant to the rectification order which addressed building defects as opposed to planning defects.
36.Notwithstanding the exclusion of item 18 in paragraph 32 above, the parties did in fact address item 18 at the hearing and in an aide memoire. For this reason the Tribunal has addressed item 18 below.
37.Items 15, 25 and 28 were not considered because they are presently the subject of an appeal to the Court of Appeal.
The original ERO of 20 September 2012 for Elara (exhibit A4B)
38.Under this order B&T was to do the work, including the following, by 28 September 2012:
(a)install propping to support the suspended ground slab;
(b)install propping under the Ultrafloor beams on balconies;
(c)prevent all access to balconies of units 4,5,7 and 8;
(d)erect safety zones around the proppings; and
(e)liaise with Mr Wilson, engineer on the best method to achieve the propping.
The consent orders of 25 June 2012 and 11 July 2012 (annexure A to the statement of Mr Gaze of 29 May 2013- exhibit A5)
39.The consent orders made in B&T Constructions (ACT) Pty Ltd & Ors v ACT Planning and Land Authority & Ors[8] only addressed the rectification work at Empire and did not address Elara.
[8] [2012] ACAT 51
40.Consent orders 1-4 are about the rectification orders under COLA and 5-6 deal with the CAO under the PDA.
41.Order 1 of the consent orders addressed items 1-9, 12, 18-22, 30, 32, 36 and 46. The order provided a time frame of 60 days from approval for the work to be done (if any is required) or within “such further reasonable time for compliance as stipulated in writing by the Registrar”.
42.In relation to items 16, 17, 23, 24, 26, 27, 29 and 31, the same time frame was inserted save that compliance was made conditional upon the co-operation of the Owners Corporation.
43.Order 3 relates to item 10, the structural flooring issue. AWT was appointed as an independent expert to report on the compliance with the BCA and to supervise any rectification necessary to comply with the BCA. Some contingency orders were made in the event that AWT could not fulfil this role. Mr Tingcombe was the engineer from AWT who took on this role.
44.Order 5 relates to Items 12, 19, 20- 22 of the CAO. The order provided a time frame of 60 days from approval for the work to be done (if any is required) or within “such further reasonable time for compliance as stipulated in writing by the Registrar”.
45.Items 17, 24, 26, 27, 29 and 44 were also part of the CAO and the same time frame was inserted save that compliance was made conditional upon the co-operation of the Owners Corporation.
46.Items 15, 18, 25, 27, 28, 43, 47 relating to the CAO were set aside with the caveat that in relation to item 43 the company agreed to install such further bollards required or contemplated by the approved plans; and for item 47 the company agreed to demolish the water feature or convert it into a garden bed.
47.The consent order adopted and amended the Schedule of Items.
Statements of Mr Gaze of 29 May 2013 (exhibit A8); 12 September 2012 (exhibit A6), 22 January 2014 (exhibit A7)
48.In his statement of 22 January 2014 Mr Gaze sets out his academic qualifications, namely a Certificate IV in Government Investigations and part completion of Bachelor of Building and Construction Management at the University of Canberra.
49.Mr Gaze is the team leader for the Investigations Unit in the Environmental Sustainable Development Directorate (ESDD) and is a building inspector under the BA. In his statement of 29 May 2013 Mr Gaze traced the history of events at Empire from the perspective of his office. He recounted complaints he received from the Owners Corporation on 1 November 2012 about work not completed in accordance with the consent orders; a site visit on 14 January 2013; communications with Mr McInnes concerning his departure from B & T at the end of December 2012; communications with Mr Bulum about the complaints; and a status report by Mr Anlezark on the rectifications. It was noted that items 3, 7, 8, 19, 21, 22 and 26 were completed and were only awaiting approvals and certifications. Mr Anlezark was the certifier appointed by the Owners Corporation at Empire for the rectification work.
50.Annexure C to the statement of Mr Gaze of 29 May 2013 contains the Schedule of Items required by the consent orders, including the two additional items noted in the consent orders that the Respondents agreed to do (items 43, 47).
51.Annexure T to the statement of 29 May 2013 contains a report of 8 May 2013 from Mr Sault, engineer at AWT to the effect that the floors at Empire were structurally sound (item 10):
AWT is prepared to confirm to the principal building certifier…Mr Anlezark…that the slabs as designed and installed are in fact structurally sufficient to a level equal to or greater than that required to comply with AS3600. AWT has tried several times to contact Mr Anlezark to discuss this approach, but he is yet to respond to our calls.
52.At Annexure A to his statement of 12 September 2014, Mr Gaze annotates the Schedule of Items to indicate which items of work require statutory approval and if so, when that approval was obtained.
53.In his statement of 22 January 2014, Mr Gaze recounts a telephone conversation between himself and Mr Bulum on 9 January 2013 in which he instructed Mr Bulum to re-instate the propping at Elara.
The statement of Ian Anlezark dated 28 May 2013 (exhibit A9)
54.Mr Anlezark is a building surveyor by profession. He was appointed as the certifier by the Owners Corporation at Empire on 5 December 2011 for the rectification work. Mr Anlezark recounts the history of his involvement to date. He noted a visit on 20 March 2013 to the date of this report. He had office meetings with the stakeholders on 19 October 2012 and 30 October 2012.
55.Mr Anlezark appeared to be working off the original Schedule of Items of 18 October 2011 rather than the amended Schedule following the consent orders. On 19 April 2012 he met with Mr Anderson and Mr McInnes where he set out which of the 46 items would require a building approval and/or DAA (Annexure I). He also stated that he was not informed of any building work requiring building approval being conducted on the site; presumably other than the structural item 10.
56.Mr Anlezark expressed the view that the ‘majority of the items in the RO could be completed within 90 days’. Item 7 required a thorough survey of the building’s exterior to determine the full extent of the drummy rendering.
Report of Mr Tingcombe of 29 November 2013 on Elara
57.Mr Tingcombe was retained by the Respondents for this purpose. He opined that the balconies were structurally sound and did not require propping.
Report of Mr Wilson of 28 July 2013 (exhibit A4Q)
58.This report dealt with the Elara issue. In this report Mr Wilson rejects the arguments and analysis of Mr Tingcombe of AWT and adheres to the view that the balconies at Elara are not safe.
The Respondents’ Statement of Facts and Contentions:
59.On 14 April 2014 the General President made procedural orders for the filing of evidence and submissions. The timetable was extended on several occasions at the request of the parties.
60.The Respondents filed their Statement of Facts and Contentions on 25 June 2014. Annexed were:
(a)statement from Mr D’Elboux, builder, dated 20 June 2014 (exhibit R3);
(b)statement from Mr Tingcombe, engineer, dated 19 June 2014 (exhibit R2); and
(c)statement from Mr Falcetta, solicitor, dated 20 June 2014 (exhibit R4).
Empire
61.The Respondents noted the following history in relation to Empire:
(a)the company was the builder contracted to carry out the construction and was a separate legal entity to the developer that owned the land;
(b)in April 2009 a Certificate of Completion of Building Work was issued by the certifier of Empire and a Certificate of Occupancy and Use was issued by the Registrar (section 69 of the BA);
(c)the title to Empire was a strata title and the units were sold over 2008 and 2009;
(d)in February 2011 the new Owners Corporation for Empire lodged a complaint with the Registrar over alleged defective building work to both the common property and individual units leading to the rectification orders of 18 October 2011 and the CAO of 3 November 2011. The Respondents asserted that the two orders were only made against the company and Mr Van Roon and not against Mr Bulum;
(e)the proceedings in ACAT leading to the consent orders of 27 June 2012 and 11 July 2012 also only involved B & T and Mr Van Roon as parties, albeit that the orders were directed at all three Respondents; and
(f)the rectification and CAO works at Empire were almost complete and over $500,000 had been spent on those rectifications.
62.The Respondents noted that the case against them was limited to their failure to carry out the designated rectification work within the allocated time frame and that there was no complaint about the quality of any of their work. They argued that there were various causes for these delays including:
(a)the complexity of the work had been underestimated and hence the time allowed in the consent orders was not a reasonable time for the work;
(b)the consent order itself did not make time of the essence for the work;
(c)the Registrar’s staff had been involved and otherwise kept appraised of all developments in the rectification work and at no time indicated any concerns about the time being taken. Delays in the Registrar’s office also contributed to the overall delay in the work;
(d)some of the delay was attributable to causes beyond the Respondent’s control, including the weather, the non-availability of subcontractors and the need to accommodate the demands of the Owners Corporation; and
(e)some of the delay was caused by obstruction from unit holders in denying access to their units.
Elara
63.The Registrar’s opinion of the imminent danger of collapse of the balconies was formed on the basis of the letter of 24 August 2012 from the manufacturer of the floor of the balcony (Ultrafloor) to the effect that the floors had not been installed in accordance with their usual processes, and from the report from Mr Wilson, engineer.
64.
The Respondents referred to communications with the Registrar’s office on
3 May 2013 and denied that they had received any formal order or direction from the Registrar to reinstate the propping since that time; and had not received any formal response to the report of 29 November 2012 from Mr Tingcombe. The passage of time with no action by the Registrar is said to undermine any true belief of the Registrar that the balconies were in danger of imminent collapse.
65.The Respondents’ fundamental position was that the ERO was invalid from its inception and therefore could not form the basis of any valid rectification order or disciplinary proceedings as a breach of section 42(1)(d) and/or 49 of the BA.
66.The Respondents assert that the invalidity of the ERO in relation to Elara arose from:
(a)the fact that the propping was to occur on private property (not the common property of the Owners Corporation) and therefore required the consent of the private properties owners, for which there was no evidence. The COLA does not authorise rectification on private property without the consent of the owners of the property;
(b)the propping action was only ever a temporary measure and not of itself a rectification. There is no power in COLA to compel mere temporary work; and
(c)the report of Mr Tingcombe should have been preferred to that of Mr Wilson. The report of Mr Tingcombe demonstrated the unreasonableness of Mr Wilson’s report. Mr Wilson viewed the building on 1 November 2011 but did not prepare his report on the urgency of the matter until 10 months later. The decision of the Registrar to rely on Mr Wilson’s report was unreasonable at law.[9]
[9] Minister for Immigration and Citizenship v Li [2013] HCA 18; Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40
67.The Respondents note that sections 37(2) and (3), 42 and 46 of the COLA specifically address the issue of the Registrar authorising work to be carried out on private property, without the consent of the owner of the property. The power is expressly limited to authorising an entity to do the work that is not the entity that carried out the original building work. The Respondents infer from this specific limitation in these sections that there is no power to be implied in Part 4 of the COLA for the Registrar to authorise the original builder, in this case B&T, to enter private property to do the work.
68.The Respondents contend that there was no evidence of consent by the owners of the private land in this case. There was no evidence that sections 27 or 28 of the Unit Titles (Management) Act 2011 or any other statutory provision had been activated such as would allow the Owners Corporation to authorise entry onto private land.
69.The Respondents point to the use of word ‘rectify’ in Part 4 of the COLA (sections 35 and 38) and argue that this terminology looks to a final solution or outcome. The term ‘rectify’ does not encompass a temporary action such as the propping where there is no determination or plan to remedy the alleged structural deficiency in a permanent manner.
70.The Respondents set out a list of criticisms of the merits of the report on Elara from Mr Wilson which they say are based either on speculation or a misunderstanding of AS3600. They note that Ultrafloor did not express a view that the balcony floors were unsound, only that they had not been installed in accordance with their usual process. The Respondents point to what they describe as extravagant and erroneous statements by Mr Wilson that were plain for the Registrar to have seen.
71.The Respondents contended that a decision which is invalid in its inception is void for all purposes including present disciplinary purposes.[10]
[10] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; Craig v State of South Australia(1995) 184 CLR 163.
72.The Respondents note that the present proceedings before the Tribunal are not in the nature of an administrative review. The Tribunal is exercising original quasi- penal functions and so the authorities that permit an administrative review of an invalid decision have no application in the present proceedings.
73.Section 40 of the BA makes it an offence to fail to comply with a rectification order. The Respondents submit that it is an essential element of any such offence that the rectification order is itself valid.[11] By inference, the Respondents extend this principle to civil penalties in the form of licence cancellation and fines for breach of the ERO at Elara.
[11] Wicks v R [1997] UKHL 21; Boddington v British Transport Police [1998] UKHL 13.
74.The Respondents pointed out that sections 42 and 49 of the BA only apply to defects ‘at the time of construction’ and do not apply to defects emerging at a later time. As such these sections do not apply to the later order to install the propping which was made 5 years after construction at Elara was completed.
75.The Respondents note that section 42 of the BA contains six distinct requirements, and the Registrar is accused of not indicating which of these requirements of section 42 he alleges have been breached. This causes the Respondents difficulties in understanding the case against themselves and in framing their defences.
76.In the absence of any particularisation of the parts of section 42 of the BA alleged to have been breached, the Respondents presumed that the Registrar is relying upon section 42(1)(a) and (b):
42Requirements 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;
77.The Respondents note that the BCA generally permits two methods of compliance:
(a)‘Deemed to Satisfy’ – which applies where the building materials and methods comply with the relevant standard; and
(b)‘Alternative Solutions’ – which permits non-standard solutions suitable for individual contexts.
78.The BCA at A0.9 provides for a scheme for determining compliance with its performance requirements. In the case where the ‘Deemed to Satisfy’ requirements are not met, compliance via an ‘Alternative Solution’ can be established by ‘expert judgment’ from an expert as defined in A1 of the BCA.
79.In the present case B1.4 of the BCA which deals with structural issues incorporates by reference the terms of AS3600, which is itself framed in general and non- prescriptive terms.
80.The combined effect of the generality of AS3600 and the ‘Alternative Solution’ pathway in the BCA means that non-compliance will only occur where there was in fact structural unsoundness at the time of construction, verified by expert opinion.
81.In the Elara case there was expert opinion on the soundness of the balconies at the time of construction resulting in the issue of a Certificate of Structural Sufficiency and a Certificate of Occupancy and Use (A2.2(a)(iii) BCA). This constitutes compliance with the BCA. The fact that Mr Wilson belatedly offered a contrary opinion on the structural soundness is not a basis for finding that the BCA had not been complied with.
82.The Respondents submit that if there is no breach of the BCA in relation to Elara then there could be no breach of section 42(1)(a) or (b) or section 49 of the BA and therefore no basis in law for the original rectification order requiring the propping or the final direction to reinstating the removed propping.
83.The Respondents argued that the use of the ERO power in section 39(1) of the COLA was conditional on the formation of an opinion by the Registrar that the application of section 34 of the COLA was not appropriate; and the Registrar neither considered nor formed such a view.[12] Section 34 involves the use of a rectification that is not an ‘emergency’ order and invokes a consultation process.
The statement of Mr Tingcombe of 19 June 2014
[12] Fekete c Construction Occupations Registrar [2013] ACTSC 45 at [16-17].
84.Mr Tingcombe was originally appointed by the Registrar as an independent engineer to investigate the ERO at Empire (the structural flooring issue). He was subsequently retained by the Respondents to report on the propping of the balconies at Elara.
85.In relation to the Elara matter Mr Tingcombe’s report is essentially a critique of the reports of Mr Wilson. Mr Tingcombe cites various examples of why the reports from Mr Wilson are unfair and unprofessional to the point that so much should have been obvious to the Registrar.
86.Mr Tingcombe reviews the scheme of the BCA and the ‘Alternative Solution’ pathway that may be satisfied by ‘expert judgment’. He sees this Alternative applying to the construction of the balconies at Elara. He expressed the view that there was no need for the propping of the balconies in the first instance.
87.In relation to Empire, Mr Tingcombe expressed the view that there were no issues of concern with the structural floor issues (item 10) however he did recommend further work including an additional load bearing wall and what he referred to as “Task 5” which would in his opinion settle item 10.
The statement of Mr D’Elboux of 20 June 2014
88.Mr D’Elboux is a project manager who was retained by the Respondents in August 2013 to assist with the rectification at both Empire and Elara after the departure of Mr McInnes in December 2012.
89.Mr D’Elboux set out the history of his involvement which shows an intensive level of activity on his part since his appointment. Mr D’Elboux recounts and provides examples of the difficulties and delay caused by:
(a)numerous meetings with stakeholders;
(b)the obstruction to access of some units in Empire by their owners;
(c)the interventionist role of Mr Anderson from the Owners Corporation;
(d)delays caused by sub-contractors;
(e)delays in the Registrar’s office;
(f)delays in working with other stakeholder such as Sellicks, and Mr Anlezark; and
(g)the evolving nature of the work to be undertaken.
90.Mr D’Elboux sets out the list of 46 items of the Schedule as amended by the consent orders and notates his understanding of the status of each as at December 2013. He noted:
(a)items 10, 47 were completed;
(b)items 2, 9, 17, 18, 19, 20, 22, 24, 26, 27, 29, 31, 42, 46 were completed awaiting approval or certification;
(c)items 13, 14, 33, 34, 35, 37, 38, 40, 41, 45, had been withdrawn by the Registrar;
(d)items 15, 25, 28, were awaiting the outcome of the appeal to the Supreme Court;
(e)items still had work to be done: 1, 2, 4, 5, 6, 7, 8, 16, 21, 23, 32, 36, 43;
(f)items 39 had been set aside in the consent orders; and
(g)items 30 (fire systems) and 44 (landscaping) were still matters of contention concerning the methodology to be adopted.
91.Mr D’Elboux says that the dispute over item 44 has been resolved and contracts let for the work.
92.As at 30 April 2014 Mr D’Elboux set out the following status report:
(a)items 1, 2, 3, 4, 7, 8, 9, 10, 12, 18, 19, 20, 21, 22, 26, 27, 29, 31, 42 and 46 were completed and certified;
(b)items 17, 18, 19, 20, 22, 24, 26, 27, 29, 31, 42 and 46 were completed awaiting approval or certification;
(c)items 16, 23,30, 34 still had work to be done; and
(d)items 5, 6, 17, 24, 32 and 36 were near completion.
93.Mr D’Elboux expressed the view that since his involvement the rectification work at Empire had moved as fast as it reasonable could, given the delays and obstructions he faced from other stakeholders.
The statement of Mr Falcetta of 20 June 2014
94.Mr Falcetta’s statement annexed six volumes of documents.
95.Mr Falcetta set out the history of the Empire dispute. He referred to the ERO of 20 September 2011 requiring propping to avoid any catastrophic collapse of the floor structure in Empire, foreshadowed by Mr Wilson in his reports of June 2011 and 19 September 2011 (not to be confused with the propping at Elara). He noted the appointment by the Registrar of Mr Tingcombe of AWT to supervise this ERO.
96.He provided a background to the proceedings in the Tribunal that led to the consent orders. He said that the consent orders were only entered by the Respondents in an attempt to expedite the matter and that the Respondents at all times disagreed with most of the items in the Schedule to the consent orders.
97.Mr Falcetta singled out item 10 (structural flooring issue) and recounted the agreement between the parties to accept the view of an independent engineer. Mr Tingcombe was appointed for that purposes and opined that there was no problem.
98.Mr Falcetta recounted the appeal to the Supreme Court in relation to items 15, 25 and 28 and its decision on 7 November 2014 and the appeal by B & T to the Court of Appeal which is still pending.
99.Mr Falcetta drew attention to the reserved decision of President Spender which the present Tribunal notes was subsequently handed down on 4 December 2014.[13]
[13] B & T Constructions (ACT) 3 P/L v ACT Planning and Land Authority and Construction Occupation Registrar [2014] ACAT 75
100.That decision dealt only with the power (or rather lack of power) of the Tribunal to impose penalties for breaches of its orders in administrative review matters. The present matter is not one of administrative review. It has some present relevance in that it dealt with an application by the Registrar to impose penalties on the same Respondents for a failure to comply with the same consent orders. According to Mr Moysey, it was this action that stimulated the renewed interest of the Respondents in complying with those orders, including the appointment of Mr McInnes to take control of that activity. Beyond this, the decision does not appear to be relevant to the present matter.
101.Mr Falcetta drew attention to the related decision in Minotaur Constructions (ACT) Pty Ltd v Construction Registrar[14]. This was a decision of the present presiding senior member that does not appear to have much immediate relevance to the present matter.
[14] [2014] ACAT 43
102.Mr Falcetta set out a history of the Elara dispute. He notes the emails from Mr McInnes and others to the Registrar of 30 November 2012 and 4, 6 , 7, 10 and 19 December 2012 seeking permission to remove the propping at Elara. No response was received from the Registrar. The email of 19 December 2012 appended a copy of Mr Tingcombe’s supportive report.
103.Mr Falcetta sets out a series of correspondence between his office and the Registrar seeking a meeting to discuss the removal of the propping that occurred on 20 December 2012 and the Registrar’s subsequent Show Cause Notice. The Registrar apparently declined to meet and talk.
104.Mr Falcetta takes issue with the allegation by Mr Wilson that a commercial relationship existed between the Respondents and Mr Tingcombe and said that the parties had had no prior dealings.
105.Mr Falcetta pointed out that the propping has not been re-instated at Elara and there is no report of any structural damage or personal injuries occurring.
The Registrar’s Statement of Facts and Contentions
106.The Registrar filed his Statement of Facts and Contentions on 18 July 2014. Annexed were the following witness statements:
(a)Mr Anlezark dated 27 March 2014 (exhibit A9);
(b)Mr McInnes dated 18 July 2014 (exhibit A13);
(c)Mr Middlemiss dated 18 July 2014 (exhibit A11);
(d)Mr Moysey dated 18 July 2014 (exhibit A12); and
(e)Mr Wilson dated 18 July 2014 (exhibit A14).
107.In relation to the Empire Apartment the Registrar denied that he had conveyed any idea that the timing of the rectification work at Empire was not critical.
108.The Registrar contended that the issue of compliance with the consent orders was wholly a matter for the certifier (Mr Anlezark) and that the Registrar only became involved when there appeared to be unacceptable delay in the rectification work.
109.The Registrar asserted that the Respondents had deliberately neglected the rectification work at Empire whilst they pursue other ventures. The delay had nothing to do with any lack of co-operation of obstruction by the Owners Corporation or its members.
110.The Registrar denied that the Tribunal had jurisdiction to determine whether the ERO at Elara was valid or not. The Registrar argued that it was sufficient that he formed the view that the ERO was necessary and it was not open to the Tribunal to substitute its view on the merits of this issue unless and until there was an application before it to review the ERO.
111.The Registrar said that the onus rested on the Respondents to show that the balcony at Elara was structurally sound. In the absence of evidence to satisfy the Registrar on this point, he was entitled to make the ERO.
112.The Registrar denied that he lacked the power to order the Respondents to carry out the work on private property without the consent of the property owner.
113.The Registrar contended that he had the power to order the Respondents to ‘take stated action’ as a preparatory step towards final rectification and the propping answered this description.
114.The Registrar notes that in order to rely upon the ‘Alternative Solution’ to satisfy the Performance Requirements of the BCA, regulation 11 of the Building (General) Regulations 2004 and page 8 of Vol 1 of the BCA require the specification of the ‘Alternative Solution’ and the method used to show that the ‘Alternative Solution’ complied with the Performance Requirements. In the present case the Respondents had not provided any of this information in relation to the balconies. In particular there are no drawings to show how the balconies were affixed to the walls of the buildings.
Statement of Mr Moysey dated 18 July 2014
115.Mr Moysey recounts his close involvement at all stages of the present disputes. He expressed the view that the Respondents essentially ceased work on the Empire rectifications at Christmas 2012. It was only after the Registrar commenced an action in the Tribunal in June 2013 for a civil penalty for non-compliance with the consent orders, that the Respondents again became active. It was at this time that the Respondents retained the services of Mr D’Elboux to supervise that work.
116.Mr Moysey reported that his search of the Registrar’s record revealed that Mr Van Roon was not the builder or nominee for any projects since 26 March 1999.
117.Mr Moysey put the case that the Respondents had been deliberately slow in carrying out the rectification work at Empire and that public confidence in the regulatory system required that they be penalised.
118.Mr Moysey had authored a previous statement of 16 March 2012 which was annexed to his more recent statement. In this earlier statement he sets out the statutory regime for building quality control under the BA and the COLA but does not specially address any of the facts of the present case.
Statement of Mr Middlemiss dated 18 July 2014
119.Mr Middlemiss has been the Registrar from 1 January 2013. He sets out his qualifications and provides a relevant overview of the operation of the BA, COLA and the BCA. Mr Middlemiss addresses the ‘Deem to Satisfy’ and the ‘Alternative Solution’ pathway in the BCA. He does not comment on the facts of the present case.
Statement of Mr McInnes dated 16 July 2014
120.Mr McInnes is a licensed builder. He commenced with B&T in December 2010. He was involved in both the Empire and Elara projects on behalf of the Respondents until his employment was terminated by Mr Bulum in December 2012.
121.Mr McInnes said that Mr Bulum took little interest in the financial operations of the company and left this to his bookkeeper.
122.Mr Van Roon took no role in the business or in the construction projects. Mr McInnes said he never saw Mr Van Roon on a building site and never saw him take any role in the projects.
123.Mr McInnes said that the Empire rectification project was entirely his. Mr Bulum attended the site on only one occasion. He expressed the view that Mr Bulum did not understand the complexity and extent of the work involved in the Empire rectification but was irritated at the escalating costs involved.
124.Mr McInnes said that his employment was terminated in December 2012 for financial reasons. Over the next six months he received communications from people, including Mr Bulum and his bookkeeper, seeking to reinstate him as the project manager for Empire. On 8 August 2013 Mr McInnes met with the stakeholder at Empire. He said he noted that not much work had been done since December 2012. Mr McInnes then went through a handover process to Mr D’Elboux.
Statement of Mr Anlezark dated 19 March 2014
125.Mr Anlezark confirms his role as the certifier for Empire. He annexes a notated Schedule of Items of work showing progress on each as at 1 November 2012, 24 October 2013 and 20 February 2014. He adheres to his previous view that all but items 6, 7 and 30 should have been completed within 90 days of the consent order.
126.The table shows that as at 20 February 2014:
(a)items 3, 4, 8, 9, 10, 12, 16, 18, 19, 20, 21, 22, 26, 29, 31, 42 and 46 were completed and certified
(b)items 1 and 2 ,were completed awaiting approval or certification
(c)items 6 and 7 were near completion.
(d)items 17, 23, 24, 27, 30, 32 and 44 were outstanding;
(e)all other items had been discontinued in one manner or another.
Statement of Mr Wilson dated 18 July 2014
127.Mr Wilson’s report of 18 July 2014 did no more than append his previous reports on Elara of:
(a)August 2012;
(b)24 December 2012 x 2;
(c)25 December 2012;
(d)26 December 2012; and
(e)28 July 2013.
128.Annexed to his report of August 2012 was a letter from Ultrafloor saying:
We confirm that many of the details calling up support conditions for the Ultrafloor beams are not as per our recommended standard details and that we do not endorse them.
Hearing on 4, 6, 7 and 11 August 2014
129.Mr McCarthy of counsel appeared for the Applicant. Mr Erskine SC of counsel appeared for the Respondent.
130.For the sake of avoiding repetition, in the following a reference to the rectification orders in relation to Empire should be taken to include a reference to the CAO and ERO issued in respect of Empire, albeit the ERO for Empire played no part in the disciplinary proceedings.
131.By way of Opening, counsel rehearsed the terms and arguments set out in their Statements of Facts and Contentions.
132.Although a discrete opening was delivered by both counsel on the first morning, there continued to be general discourse of the same nature throughout the hearing which the Tribunal takes to be a development and amplification of the cases as put in the initial opening.
133.Mr McCarthy emphasised that the present proceedings concerned both Empire and Elara and were not by way of administrative review of the Registrar’s decisions, rather they were original disciplinary proceedings.
134.He submitted that the rectification orders in relation to Empire made by the Registrar, as modified in the consent orders, is a historical fact that forms the starting point for the present proceedings. The issue for the Tribunal is only whether the Respondents have breached the rectification orders embodied in the consent orders, and there is no role or need for the Tribunal to consider the merits or lawful validity of the consent orders.[15]
[15] Transcript 4 August 2014 at page 16
135.Whether there was a breach of the consent orders raised two issues: first, whether the Respondents had carried out the work ordered and secondly, whether they had done so in the time frame contained in the consent orders.[16]
[16] Transcript 4 August 2014 at page 42
136.According to Mr McCarthy the validity of the rectification orders embodied in the consent orders for Empire was said to depend only upon the satisfaction of the Registrar under section 39 of the COLA that a breach of the BA or the COLA has occurred and warrants the rectification order.[17] The consent orders were made as part of an administrative review process and take effect as the orders of the Registrar.
[17] Transcript 4 August 2014 at pages 11, 12, 68, 68
137.Similarly for the ERO in relation to Elara. The Registrar’s satisfaction that the ERO was justified was an historical fact that formed the starting point of the proceedings. The difference of opinion between Mr Wilson and Mr Tingcombe on the merits of the ERO at Elara was irrelevant to the Tribunal and it was for this reason that Mr Wilson was not being called to give evidence on his reports. The only issue is whether the Respondents have breached those orders.[18]
[18] Transcript 4 August 2014 at pages 25, 26, 28
138.Mr Erskine SC took the position that any error of law that caused either the original rectification orders (including the consent orders) or the ERO for Elara to be invalid was necessarily fatal to the Registrar’s case.[19]
[19] Transcript 4 August 2014 at pages 15, 57
139.In short he said in relation to an invalid order ‘it therefore is no decision at all and you therefore cannot proceed to discipline my clients for supposedly not complying with an order that was never an order at all’.[20]
[20] Transcript 4 August 2014 at pages 13, 16
140.Mr Erskine SC went on to submit that the consent orders in relation to Empire were ambiguous. Rectification orders had to specify the action that needed to be taken to remedy an identified breach of the approved plans or BCA. It was not sufficient to simply direct that a particular problem be fixed or a particular outcome be achieved.[21]
[21] Transcript 6 August 2014 at pages 13-20; 16-10; 17-30ff; 18-15; 18-35 and transcript 7 August 2014 at page 136
141.Mr McCarthy challenged the assertion of ambiguity as being disingenuous and pointed out that no party had to date raised any concerns about their understanding of the work that needed to be done by way of rectification.[22]
[22] Transcript 6 August 2014 at page 19
142.Mr Erskine SC submitted that the ERO for Elara was infected with errors of law arising from the Registrar’s misconstruction of his powers to issue the ERO and from the unreasonableness of the Registrar’s adoption of the report of Mr Wilson, engineer. The misconstruction of power entailed three issues:
(a)whether the Registrar had the power to issue an ERO for purely temporary work such as propping without any permanent follow up plans[23];
(b)whether the Registrar had power to order the Respondents to enter the property and do the work without the consent of the unit owners at Empire.[24]; and
(c)whether the Registrar’s reliance on Mr Wilson in making the ERO was unreasonable at law[25] given the Registrar is assumed to have some knowledge or expertise in building matters .[26]
[23] Transcript 6 August 2014 at page 58
[24] Transcript 6 August 2014 at page 57
[25] Transcript 4 August 2014 at page 59
[26] Transcript 4 August 2014 at page 60
143.Mr Erskine SC said that Mr Wilson’s report was so extravagant in its claims, content and criticism of other engineers, certifiers and builders that on any fair reading it was “riddled with incoherencies”.[27] He agreed it was “rubbish” and “not worthy of serious consideration” and the Registrar should have recognised it as such.[28] He pointed out that Mr Wilson had apparently come to the conclusion that the balconies at Elara were unsafe in November 2011 but had waited until August 2012 to file his report to that effect. The Tribunal was invited to draw the conclusion that Mr Wilson was not genuine in the views he expressed on that issue.[29]
[27] Transcript 4 August 2014 at page 63
[28] Transcript 4 August 2014 at pages 60, 61and 68
[29] Transcript 4 August 2014 at page 64
144.He did concede that his clients removed the propping of the balconies at Elara without consent, such that if the ERO in relation to Elara is valid at law then his clients are in breach.[30] However the Respondents’ case is that the propping was never required on safety grounds and the balconies were always sound.[31]
[30] Transcript 4 August 2014 at page 18
[31] Transcript 4 August 2014 at page 56
145.For his part, Mr McCarthy conceded that no decision had been made for any action at Elara beyond the temporary propping of the balconies.[32]
[32] Transcript 4 August 2014 at page 43
146.Following some dialogue with the Tribunal, Mr McCarthy appeared to accept that the lawful validity of the rectification orders, the consent orders and the ERO for Elara may depend upon whether there was a vitiating error of law involved in the process of issuing those orders or in the misconstruction of the statutory power to do so.[33]
[33] Transcript 4 August 2014 at page 12
147.There was some dialogue concerning the role of the certifier, Mr Anlezark. It was the Registrar’s position that the certifier operated entirely independently of the Registrar and the Registrar accepted the decisions of the certifier on compliance issues.[34]
[34] Transcript 6 August 2014 at pages 8, 20
148.Mr McCarthy contended that the certifier’s role was to determine whether the rectification work had been properly done; “[he] is the person with the responsibility for managing the work.”[35] The Registrar was guided by the certifier’s views on the adequacy of the work,[36] but the certifier was not there to perform a project management role.[37]
[35] Transcript 6 August 2014 at page 7
[36] Transcript 6 August 2014 at page 8
[37] Transcript 4 August 2014 at page 36
149.Mr Erskine SC on the other hand contended that the Registrar had in a practical sense left Mr Anlezark to be the project manager and expected him to do things outside the role of a certifier.[38]
[38] Transcript 6 August 2014 at pages 6, 14
150.Mr Erskine SC argued that the certifier’s role was narrower than that proposed by the Registrar. It was not the certifier’s role to fix problems at the buildings or to project manage that outcome[39]. The certifier is only called upon to look at what is actually built and to certify whether that construction work complies with the BA, i.e. with the approved plans and/or the BCA.[40]
[39] Transcript 6 August 2014 at page 13
[40] Transcript 6 August 2014 at page 10
151.There was discussion about the nature of rectification orders and of the defects that can arise in buildings. It was put by the Tribunal that not every defect was caused by a non-compliance with the approved plans; in fact the defects may be in the approved plans themselves.[41] Mr Erskine SC concurred and pointed out that his client could only face disciplinary action for a breach of the BA and not simply because there were defects or problems that needed fixing. He further pointed out that in the present case the issue was even narrower, it was limited to whether his clients had breached the particular consent rectification orders or ERO at Elara and not whether they had breached any other part of the BA.[42]
[41] Transcript 6 August 2014 at page 15 and transcript 7 August 2014 at page 126
[42] Transcript 6 August 2014 at page 15
152.The Tribunal raised a further issue concerning the validity of the consent orders. If the power to make a rectification order or an ERO is dependent on the existence of a breach of the BA in the nature of a non-compliance with the approved plans or a breach of the BCA, then no rectification can be validly made that does not answer this description. Can the consent orders of the Tribunal on administrative review then include rectification orders that do not arise from a non-compliance with the approved plans or a breach of the BCA?[43]
[43] Transcript 7 August 2014 at page 105
153.Mr McCarthy submitted that once the consent orders were made there was no basis in logic or in jurisdiction for the Tribunal to question the validity of the consent orders. They were a historical fact that formed the starting point for the disciplinary action.[44]
[44] Transcript 7 August 2014 at page 126
154.The Tribunal raised the issue of the role of rectification orders made in anticipation of a possible future defect. The issue arose in the context of item 7 relating to the drummy rendering on parts of the exterior at Empire. It was one thing to order that the existing drummy rendering be fixed, but can a rectification order be made to look for other potential such episodes that might occur in the future and take anticipatory remedial action?[45] Mr McCarthy appeared to accept that there must be some evidence of the present existence of the defect before a rectification order could be justified that ordered the builder to go and look for other such defects.[46] Mr Erskine SC cited the consent orders on this item as an example of lack of specificity that caused the order to be unintelligible and at best could be interpreted as an order to remedy the existing identified drummy render.[47]
[45] Transcript 7 August 2014 at page 134
[46] Transcript 7 August 2014 at page 134
[47] Transcript 7 August 2014 at page 136
155.In the Elara context the Tribunal raised the issue of inconsistency between the approved plans and the BCA, namely that the approved plans permitted the mode of construction adopted but that mode was inconsistent with the BCA. The question concerned what disciplinary actions lay in such cases. If the builder builds in accordance with the approved plans then has the builder committed a disciplinary breach of the BCA? Conversely, if the builder ignores the approved plans and builds in accordance with the BCA has the builder committed a disciplinary breach by not complying with the approved plans? The Registrar’s position was that a disciplinary breach occurred in both cases.[48]
[48] Transcript 11 August 2014 at page 229
156.In his opening, the Registrar repeated his criticism of Mr Van Roon’s absence from any practical role in either project and the scant involvement of Mr Bulum.[49] Both projects required a class A licence which only Mr Van Roon held. The Tribunal took the Registrar’s submissions to be a thinly veiled allegation that the company and Mr Bulum had entered into a fraudulent licence lending arrangement with Mr Van Roon, for which there seems to be considerable evidence.
[49] Transcript 4 August 2014 at page 37
157.Following some interchange between counsel about of the delay caused by awaiting relevant approvals or certifications of finished work, the Registrar was asked to clarify whether those delays were part of the overall delays that he attributed to the Respondents in the disciplinary action. The Registrar’s position was equivocal. The starting point was that those delays lay at the Respondents’ feet[50] but then the Registrar appeared to accept that in some cases it was unfair to follow that approach.[51]
[50] Transcript 6 August 2014 at page 23
[51] Transcript 6 August 2014 at pages 24, 25
158.Senior Member Trickett then informed counsel for the Registrar that unless the Registrar singled out specific delays caused by awaiting approvals or certifications as being attributed to the Respondents, he would ignore those delays.[52]
[52] Transcript 6 August 2014 at page 24
159.During the opening dialogue there was discussion about which, if any, of the items were not being pressed by the Registrar and which ones were of insufficient gravity to justify further consideration in these proceedings.[53] Mr McCarthy advised that some items already fitted this category and he would take instructions on which other of the items might not be pressed.
[53] Transcript 6 August 2014 at page 49
160.Mr Erskine SC took the Tribunal though each of the 46 items outlining the Respondents’ position in relation to each.
161.He pointed to issues of delay in the Registrar’s office, particularly in relation to approval of item 10 which had been physically completed by 20 December 2012.[54] He pointed to delays caused by Mr Anlezark[55]; delays by the Registrar; and delays by Sellicks in providing plans and certifications.
[54] Transcript 6 August 2014 at pages 53, 54
[55] Transcript 4 August 2014 at page 55
162.At the beginning of the last day of the hearing (11 August 2014) the Tribunal provided the parties with a document setting out some of the issues of law that the Tribunal saw arising. This document was provided to the parties as an aide memoire in preparing their submissions.[56]
[56] Transcript 11 August 2014 at page 188
163.At the end of the evidence on the last day, the Tribunal raised with the parties its concerns about potential questions relating to Empire to which it had alluded over the course of the proceedings. The questions were:
(a)Noting that a rectification order (or ERO) can only be made if there is a breach of the BA which involves non-compliance with either the approved plans or with the BCA; and a rectification order cannot be imposed simply because a defect has emerged; if a rectification order is made that requires a builder to rectify a defect that does not arise from non-compliance with the approved plans or the BCA, is that rectification order valid to that extent?
(b)Assuming the answer to (a) is ‘no’, can the Tribunal can make a valid consent rectification order on administrative review that includes work not arising from non-compliance with the approved plans or BCA? Does the fact of consent alone provide a sufficient jurisdictional basis for the consent order?
(c)Assuming the part of the consent order that relates to defects that do not arise from non-compliance with the approved plans or BCA is invalid, does the builder have to comply with it?
(d)If the builder does not have to comply with the part of the consent order that does not arise from non-compliance with the approved plans or BCA, has the builder committed a disciplinary offence?
164.The Tribunal was not suggesting that parties to an administrative review action about a rectification order cannot reach whatever agreement by way of consent orders they wish, including orders to carry out work that is not properly within the power to make a rectification order. The question is whether a builder can be disciplined for non-compliance with those parts of the consent orders that were not properly within the rectification order power in the BA.
165.If the answer to the above question is in the affirmative, then the builder takes on enlarged disciplinary obligations that he would not otherwise have been lawfully exposed to via the expanded consent orders.
166.Mr McCarthy’s position was clear. The consent orders form a new basis for the disciplinary action and the present Tribunal is not authorised to go behind those consent orders to look to their validity. A breach of any of the consent orders is a disciplinary breach.
167.Mr Erskine’s position was more equivocal. He said had not focused on this issue until the Tribunal raised the issue. Notwithstanding this response it did seem to the Tribunal that the whole approach of the Respondents to the Elara issue was premised on the potential invalidity of the ERO. It is difficult to see why the same principle could not apply to the Empire orders save for any effect the interposition of the consent orders may have.
168.The parties were invited to file submissions on these questions.
The evidence of Mr Gaze
169.Mr Gaze gave evidence and was subject to cross examination. He adopted his statements that had been filed in the proceedings.
170.Mr Gaze said that he was the person in the Registrar’s office that had day to day carriage of the Empire and Elara matters.[57] He said that he had kept the Registrar and Mr Moysey (who was his immediate superior) informed of progress.[58] Mr McCarthy submitted that Mr Gaze and Mr Moysey were collectively the ‘active minds’ within the Registrar’s office on the Empire and Elara projects.[59]
[57] Transcript 6 August 2014 at page 3
[58] Transcript 6 August 2014 at page 3
[59] Transcript 6 August 2014 at page 827
171.He said that he had no personal contact with Mr Bulum or Mr Van Roon on the issues.[60] He said that he had no communications with Mr McInnes or anyone else from the Respondents about the rectification works until Mr McInnes’ employment was terminated in December 2012.[61] As far as he knew, little progress had been made in the period December 2012 to August 2013[62] but as soon as Mr D’Elboux was appointed ‘things moved along pretty quickly’.[63]
[60] Transcript 4 August 2014 at page 88
[61] Transcript 4 August 2014 at page 88
[62] Transcript 4 August 2014 at page 88
[63] Transcript 4 August 2014 at page 89
172.Mr Gaze said that he relied upon Mr Anderson from the Owners Corporation who was retired and on site all the time, ‘he knew what was happening’.[64]
[64] Transcript 4 August 2014 at page 89
173.Mr Gaze identified the more urgent items of rectification as being 5,6,7,9 and 10.[65]
[65] Transcript 4 August 2014 at page 87
174.Mr Gaze said that he relied “pretty much 100%” on Mr Anlezark in determining whether the rectification work had been completed.[66]
[66] Transcript 6 August 2014 at page 30
175.Due to the evidence from Mr Gaze and submissions from the Registrar’s counsel to the effect that the Registrar was wholly guided by the communications with the certifier, there did not appear to be any basis upon which the views of Mr Gaze on each of the items of the Schedule could be relevant. He appeared at best to be a neutral conduit between the certifier and the Registrar. It was agreed to suspend the evidence of Mr Gaze pending the evidence of Mr Anlezark.
176.Mr Gaze returned to evidence on the last day of the hearing.
177.In relation to item 44 concerning landscaping of the verge owned by the ACT, he confirmed that TAMS approval was required before any work was undertaken.[67] This approval was in addition to the approval in principle given in the development approval for the site as a whole[68]. He said that as far as he knew the TAMS approval had never been obtained but it was the developer’s job to obtain it.[69] He expressed the further view that the TAMS approval was ‘just a formality’.[70]
[67] Transcript 11 August 2014 at page 211
[68] Transcript 11 August 2014 at page 206
[69] Transcript 11 August 2014 at pages 207, 211
[70] Transcript 11 August 2014 at pages 211
178.Mr Gaze acknowledged the delays in obtaining plans and certifications from Sellicks.[71] Mr Gaze acknowledged that Sellicks had also been the subject of the CAO but the Registrar had not taken any enforcement action against Sellicks.
The evidence of Mr Anlezark
[71] Transcript 11 August 2014 at page 207
179.Mr Anlezark adopted his statement filed in the proceedings.
180.Mr Anlezark testified that he attended on site at Empire in December 2011 and on 19 October 2012, 22 March 2013, 22 May 2013, 8 August 2013, 20 February 2014 and 25 March 2014.[72] He had other meetings with stakeholders in his office including a meeting of 30 April 2014. He said that he first turned his attention to what needed to be done in the visit in October 2012.
[72] Transcript 7 August 2014 at pages 118, 130 and 154
181.Mr Anlezark adhered to his opinion that with the possible exception of item 30, all the works could have been completed within 90 days of the consent orders.[73] Mr McCarthy then took him to most of the items individually and asked for his view on their status.
[73] Transcript 6 August 2014 at page 61
182.He said that he had no difficulty with any ambiguity in the consent orders.[74]
[74] Transcript 6 August 2014 at page 61
183.Mr Anlezark said that he had had minimal contact with the Registrar’s office during his involvement as the certifier at Empire.[75] He said that he had never met or spoken with either Mr Bulum or Mr Van Roon[76] and they had had no involvement in the project at Empire.[77]
[75] Transcript 6 August 2014 at page 93
[76] Transcript 7 August 2014 at page 102
[77] Transcript 7 August 2014 at page 103
184.He was taken to the annotated Schedule in his reports that set out the progress of each item. He said this Schedule was one initially compiled by Mr Anderson (chair of the Owners Corporation) which was circulated and used thereafter on a cut and paste basis.[78]
[78] Transcript 7 August 2014 at pages 119, 121
185.Mr Anlezark’s tables contained potholed dates at which he reviewed progress, the latest being 20 May 2014. It was not clear to the Tribunal when Mr Anlezark actually carried out the site inspections that formed the views expressed in relation to each potholed date. Mr Anlezark said that his last inspection before 20 May 2014 was on 25 March 2014 which formed the basis for his table entries for 20 May 2014.
186.Mr Anlezark was asked about causes of delay at Empire. He noted:
(a)the dispute between Sellicks and the Respondents which may have hindered access to the engineering drawings;[79]
(b)the Owners had a change of mind in relation to item 24 and did not want it built;[80]
(c)the difficulties in having Dyson (fire engineers) return to site due to their business commitments;[81]
(d)delays caused by debates between the owners.[82]
[79] Transcript 6 August 2014 at page 78
[80] Transcript 6 August 2014 at page 84
[81] Transcript 6 August 2014 at page 6
[82] Transcript 6 August 2014 at page 94
187.In relation to part of item 30, Mr Anlezark noted the agreement reached by all stakeholders to carry out a 10% sampling of the fire-rating of penetrations. It was commercially impracticable to expose all the penetrations and so it was determined to expose all the penetrations in 10% of the apartments and then determine whether there was an issue for purposes of item 30 or not.[83] He said in cross examination that he had not raised item 30 with the Respondents as an urgent issue until a meeting of 30 April 2014.[84]
[83] Transcript 6 August 2014 at page 87 and transcript 7 August 2014 at page 156
[84] Transcript 7 August 2014 at page 156
188.Mr Anlezark said on several occasions that he saw his role as ensuring that the terms of the consent orders were carried out[85] and that he was not concerned about whether these orders arose from breaches of the approved plans or BCA[86] or from breaches of the Development Approval.[87] By way of example only, in relation to item 5 Mr Anlezark admitted that nobody knew the cause of the problem and hence it could not be said that it was caused by any breach of the approved plans or BCA. He saw his role as looking for a solution in collaboration with the Respondents.[88]
[85] Transcript 7 August 2014 at page 109
[86] Transcript 7 August 2014 at pages 112, 114 and 127
[87] Transcript 7 August 2014 at page 144
[88] Transcript 7 August 2014 at pages 129, 130
189.In a sense Mr Anlezark was admitting that he was performing a form of project management of the rectification.
190.Mr Anlezark drew a distinction between his role of ‘certifying’ work as complying with the BA in his capacity as a certifier and of ‘verifying’ work that did not require formally ensuring the physical construction of an item, but also required verifying that the constructed item worked properly for its intended purpose. By way of example, the plans showed the need for a spoon drain of certain dimensions in the basement (item 1). After ensuring its construction, Mr Anlezark considered it his role to wait for a storm event to see if the drain coped with the water ingress.[89]
178.In the original rectification order the Registrar asserts that this defect was a breach of section 42(1)(d)(i) in that it was a failure to comply with the approved plans. The consent order proceeded on the same basis.
179.The Tribunal finds that the defect is a breach section 355 of the PDA and section 42(1)(d)(i) of the approved plans for the following reasons. The aluminium balustrade specified for Unit 26 is not in accordance with the approved plan in that it is 200mm wide by 50mm deep rather than 500mm and 700mm wide and 200 mm deep.
180.The Tribunal has considered WD 204 A, WD 303 A as well as WD 300 A, WD 310 A but was not provided with WD 214 A by either party. The depth of the railing is shown as 200 mm on WD 300 A and WD 303 A, however, the Tribunal could not locate the dimensions of the two widths from the drawings provided. The handrail has been designed as an aluminium clad feature which extends vertically from the ground level adjacent to the entry at grid G up to the balcony of Apartment 26 where it forms a horizontal element as part of a 1200 mm high balustrade to the corner terrace. It is noted as ‘wider handrail to corner’ on WD 204 A where the rail turns the corner. The dimension of the railing installed is stated in the ‘Consequences’ as a contravention of privacy provisions for the neighbour and a reduced building aesthetic which is the non-compliance with provision of section 355 of the PDA.
181.The Tribunal finds that the defect is a breach of the section 355 of the PDA and section 42(1)(d)(i) of the BA.
182.The Tribunal notes that the owners determined that the as built handrail was acceptable and that a new DA would be lodged. The Tribunal finds that the physical work required in item 24 was completed on 30 April 2014. In fixing this date the Tribunal has not taken into account delays in obtaining approvals or certifications.
183.The Tribunal has found a failure to comply with section 355 of the PDA and the section 42(1)(d)(i) of the BA in accordance with the approved plans.
Item 26
184.Item 26 alleged a defect in the building that is described in the Schedule of Items as ‘protective enclosures are specified for banks of air conditioning units but have not been built’.
185.The description of the item adopted in the original rectification order, in the consent order and the controlled activity order was ‘protective enclosures are specified for banks of air conditioning units but have not been built / air conditioning condensers on the roof not concealed, within enclosures as per approved plans’.
186.In the original rectification order the Registrar asserts that ‘air conditioning condensers upon the roof are not concealed within enclosures as per approved plans’ this defect was a breach of section 42(1)(d)(i) in that it was a failure to comply with the approved plans. The consent order proceeded on the same basis.
187.The ‘defect’ wording is slightly different to the RO.
188.There are a number of condensers shown on the roof plan, however the condensers that are to be enclosed are shown on the plan adjacent to grid 6 at three areas only, centred on grids C, E and G. The other condensers located between grids A and B are not shown on the drawings as enclosed in the same manner. The enclosure for the exhaust on grid 5 is not included in the RO.
189.The Tribunal also notes that Exhibit A5 is intended to locate Item 26 on the marked up roof plan in green with the number 26, however these identified parts of the plan are labelled ‘SK’ which in the table of abbreviations on the drawing designates these as ‘Skylight’. The ‘consequence’ states that this is an “unsightly appearance from some apartments and neighbouring properties”. It is not clear to the Tribunal that these condensers could be seen from any of the apartments in the development however they may be able to be seen from neighbouring properties.
190.The Tribunal finds that the defect is a breach of the approved plans for the following reasons. The enclosures as depicted should have been built. The Tribunal finds that the defect is a breach of the section 42(1)(d)(i).
191.The Tribunal finds that the physical work required in Item 26 was completed around 1 January 2012.
192.The Tribunal has found a failure to comply with section 42(1)(d)(i) in accordance with the approved plans.
Item 27
193.Item 27 alleged a defect in the building that is described in the Schedule of Items as ‘membrane roof with ballast finish is specified for rear of level 2 apartments but metal deck used instead’. This is the description of the item adopted in the original rectification order and in the controlled activity order as ‘approved plans sow (sic) membrane roofing with ballast finish at the rear of level 2. However metal decking has been used in lieu of the approved finish’.
194.The consent order sets aside the order.
195.In the original rectification order the Registrar asserts this defect was a breach of section 42(1)(d)(i) in that it was a failure to comply with the approved plans. The consent order proceeded on the same basis.
196.The membrane roof is noted on drawing WD 311 A. The tribunal notes that it is also noted on WD 204. The Tribunal finds that the defect is a breach of the approved plans for the following reasons. The membrane roof should have been built as it was on the approved drawings. The Tribunal finds that the defect is a breach of the section 42(1)(d)(i).
197.The Tribunal finds that the physical work required in Item 27 was completed around 20 June 2014.
198.The Tribunal has found a failure to comply with section 42(1)(d)(i) of the BA in accordance with the approved plans.
199.The Tribunal notes that the RO states at detail 7 on page 3 “The following items in (a) to (n) inclusive relate to the premises identified elements…”. The Tribunal notes that the items as set out extend through to (r). These include Items 29, 31, 32 and 39. The Tribunal takes the view that this is a clerical error on the Registrar’s part.
Item 29
200.Item 29 alleged a defect in the building that is described in the Schedule of Items as ‘drawings show a box gutter and two rain heads (sic) on western edge of Unit 25’. The description of the item adopted in the original rectification order, in the consent order and the controlled activity order was ‘roof and gutter not built in accordance with the plan’.
201.In the original rectification order the Registrar asserts this defect was a breach of section 42(1)(d)(i) in that it was a failure to comply with the approved plans. The consent order proceeded on the same basis.
202.The shallow hipped roof and perimeter box gutter is depicted on drawing WD 204. The Tribunal finds that the defect is a breach of the approved plans for the following reasons. The skillion roof, eaves gutter and exposed downpipe should not have been built. The Tribunal finds that the defect is a breach of the section 42(1)(d)(i) and is a breach of the CAO.
203.The Tribunal finds that the physical work required in Item 29 was completed around 20 June 2014.
204.The Tribunal has found a failure to comply with the section 42(1)(d)(i) of the BA in accordance with the approved plans.
Item 30
205.Item 30 alleged a defect in the building that is described in the Schedule of Items as ‘deficiencies in fire safety system’. This is the description of the item adopted in both the original rectification order and in the consent order.
206.In the original rectification order the Registrar asserts this defect was a breach of section 49 in that it was a failure to comply with the BCA. The consent order proceeded on the same basis.
207.The ‘defect’ includes the treatment of penetrations as required by BCA part C3.15, which additionally draws on AS4072.1; the certification of documents in compliance with the relevant Australian Standard; sprinkler deficiencies related to AS2118.1; and fire function matrix. Appendix D is referred to which is Attachment D Fire Report by Dysen Pty Ltd.[138]
[138] Witness Statement of Mr Ian Anlezark. Also found at page 434 Witness statement of Maurice S Falcetta, attachment D.
208.The Tribunal notes that the introduction to the report refers to BCA 2008 whereas the relevant code is BCA 2007. It is not considered by the Tribunal that the code would be less restrictive in the later issue. The report refers in part to there being a need to rectify penetrations that are not code compliant and for all penetrations to be certified. There are non-compliances with aspects of the lift shafts, the smoke alarm systems, carpark sprinkler system and manuals.
209.Evidence before the Tribunal is that the Registrar agreed to 10% of the units in the building being investigated to determine that all the penetrations through fire rated walls and slabs in these units as built complied with the requirements for the treatment of fire rated penetrations.
210.The Tribunal is of the view that as this is such an important requirement that this investigation of the required fire rated penetrations should extend to all units if any penetrations are found in the 10% sampling to be non-compliant.
211.The Tribunal finds that the physical work required in item 30 has not been completed though work with respect to the sprinkler system in the car park was completed around 22 August 2013. In fixing this date the Tribunal has not taken into account delays in obtaining approvals or certifications.
212.The Tribunal has found a failure to comply with the section 49 of the BA in accordance with the BCA.
Item 31
213.Item 31 alleged a defect in the building that is described in the Schedule of Items as ‘no sump or pump outside hot water room as designed’. This is the description of the item adopted in both the original rectification order and in the consent order.
214.In the rectification order the Registrar asserts that this defect was a breach of section 42(1)(d)(i) in that it was a failure to comply with the approved plans. The consent order proceeded on the same basis.
215.The Tribunal finds that the defect is not a breach section 42(1)(d)(i) of the approved plans for the following reasons.
216.The Tribunal reviewed plan H101, with the submission for BA amendment issue ‘A’ dated 4.10.07 and the Authority’s received stamp dated 22 October 2007, and it does not show a sump or pump outside hot water room to the basement plan. The building approval is dated on the architectural and hydraulic engineering drawings as being given on 22 October 2007. The “Work as Executed” drawing H101, with plumbing plan approval dated 16 April 2009, does show a sump and pump outside the hot water room. This date is some 18 months after 22 October 2007. The Tribunal considers that the BA drawing is the relevant document rather than the ‘Work as Executed’ drawing with respect to section 42(1)(d)(i).
217.The plumbing approval given for the ‘Work as Executed’ drawing suggests that at the time of that approval being given for the work executed there may have been little or no on-site confirmation by the approving Authority of what was actually built.
218.The BA plan H101 did not depict a sump and pump outside the hot water room at this level.
219.The Tribunal finds that the physical work required in item 31 was completed by 24 October 2013. In fixing this date the Tribunal has not taken into account delays in obtaining approvals or certifications.
220.The Tribunal finds that the defect is not a breach of the section 42(1)(d)(i) in accordance with the approved plans.
Item 32
221.Item 32 alleged a defect in the building that is described in the Schedule of Items as ‘no perforated basket on garbage area sump pump’. The description of the item adopted in both the original rectification order and in the consent order was ‘WD 200- shows ‘basket trap’ in the bin skip and bi life (sic) room, connected to the sewer. This has not been installed’.
222.In the rectification order the Registrar asserts that this defect was a breach of section 42(1)(d)(i) in that it was a failure to comply with the approved plans. The consent order proceeded on the same basis.
223.The Tribunal finds that the defect is a breach section 42(1)(d)(i) of the approved plans for the following reasons.
224.The Tribunal reviewed plan WD 200 and H101 and they show a note requiring the installation of a perforated basket on garbage area sump pump to the basement plan.
225.The Tribunal finds that the physical work required in item 32 has not been completed.
Item 36
226.Item 36 alleged a defect in the building that is described in the Schedule of Items as ‘sill outside Unit 24 and 30 unfinished’. This is the description of the item adopted in both the original rectification order. The consent order was described as ‘sill outside Unit 24 unfinished and reinforcing still visible’.
227.In the original rectification order the Registrar asserts that this defect was a breach of section 49 in that it was a failure to comply with FP1.4 of the BCA. The consent order proceeded on the same basis.
228.The “Nature of non-compliance” refers to the sills outside Unit 24 and Unit 30 being unfinished and not built in compliance with the approved plans; in contravention of section 42(1)(d)(i) and section 42(1)(c) of the BA. Water is stated to be entering Unit 30 and the render to the sill is lifting. The area is on the Empire Circuit elevation and is depicted on Exhibit A5 adjacent to grid 3.
229.The Tribunal has found a failure to comply with the section 49 of the BA in accordance with the BCA with respect to Unit 30, as water is stated to be entering the building in contravention of FP1.4. It has not found a contravention of section 42(1)(d)(i) of the BA that can be substantiated as there is little information on the plans that details the construction of the wall and sill.
230.The Tribunal considers that as water is not entering the building at Unit 24 the Registrar has incorrectly identified Part FP1.4 of the BCA.
231.The Tribunal finds that there is a breach of section 42(1)(c) of the BA for both Unit 24 and Unit 30. In the RO the Registrar alleged a breach of section 49 of the BA and referred to the BCA but did not refer to section 42(1)(c) of the BA.
232.The Tribunal finds that the physical work required in item 36 has not been completed.
Item 42
233.Item 42 alleged a defect in the building that is described in the Schedule of Items as ‘unapproved Bluestone wall on Empire Circuit frontage (max height to 1.7m)’. It is alleged that it is a breach of section 355 of the PDA and section 42(1)(d) BA. This is the description of the item adopted in the consent order. This is the description of the item adopted in the controlled activity order. The consent order proceeded on the same basis.
234.The Tribunal has determined that a wall is depicted on plan 0312 – 202 d and labelled as ‘500 H low concrete plinth to boundary typical’. This is the approved DA plan of the proposed ground floor. Exhibit A5 identifies this on plan WD 202 A which is the level above the ground floor rather than on the relevant ground floor plan WD 201 A. A wall with the same notation as the DA plan is shown on the building approval plan WD 207 A. There are no sections that depict this structure and the wall is not included on the structural drawing S101. There is no detail for a stone retaining wall in the building approval structural drawings.
235.The aide memoir 1 notes that ESDD states that a DA is not required. The Tribunal accepts this as the wall shown in the photographs is a stone retaining wall and would appear not to extend more than 500 mm above the ground with the remainder below the natural ground level.
236.Part 5 of the BR does not exempt this retaining wall from requiring a building approval if it is more than 1.2 m high. The Tribunal has determined that the wall is most likely retaining soil that has a height that is more than 1.2 m.
237.The Tribunal finds that the physical work required in Item 42 was completed by 24 October 2013. In fixing this date the Tribunal has not taken into account delays in obtaining approvals or certifications.
238.The Tribunal finds that the defect is not a breach of section 355 of the PDA however it has found a failure to comply with section 42(1)(d) of the BA the approval plans and Part 5 of the BR.
Item 44
239.Item 44 alleged a defect that is described in the Schedule of Items as ‘landscaping defects’. It is alleged that it is breach of section 355 of the PDA.
240.The Item’s nature of non-compliance attached to the RO and the CAO refer to drawings 04150/350 (Landsacpe) Specification and Details and C202 Water management plan.
241.Mr Anlezark’s oral evidence was that the defect was concerned with irrigation of the verge and that there had been no TAMS approval nor had he seen anything from TAMS.
242.The Tribunal has considered the two drawings. Plan 04150/350 does not refer to off-site irrigation work. Plan C202 refers to the area of irrigated lawn 870sqm; area of irrigated garden beds 164sqm; total irrigated area 1,043sqm and the legend shows an area on-site of permeable surface 1,034sqm.
243.The Tribunal has also referred to Drawing C301 which includes Verge Grassing Notes. At point 3 the fourth dot point states:
“An in-ground irrigation system will not be permitted in the verge. A system if quick couplers at the lease edge of the verge may be installed, subject to Canberra Urban Parks and Places approval of the irrigation plan”.
244.The Tribunal has determined that although all the oral evidence was directed to off-site irrigation there is no reference on the approved plans to a design for off-site irrigation.
245.The defect refers to the on-site irrigation at the two street frontages and that no pumped connection to the retention tank as specified was installed. It sets out the non-compliant items.
246.The Tribunal cannot determine if it is a breach of the DA for the reason that the drawings called up in the CAO do not include off-site irrigation. If the item relates to off-site irrigation, the Tribunal has determined that it is an ‘As Executed Drawing’ that TAMS requires. The planning authority has determined that it does not require a DA.
247.The Tribunal finds that the work required in item 42 (whatever it was) was completed around 24 October 2013.
248.As the Tribunal was only directed to the off-site works which is not set out on the relevant drawing and is not in either the CAO or the Item 44 Defect description, it is left at a loss to know whether there is a non-compliance with the CAO which would require the additional installation of on-site irrigation, the connection of the whole on-site irrigation systems to the retention tank and the installation of the suction line between the pump and tank - or that it is only an ‘As Executed Drawing’ needing to be lodged with the Authority.
Item 46
249.Item 46 alleged a defect in the building that is described in the Schedule of Items as ‘leaks through external walls of Units 17, 8 and 1’. The description of the item adopted in both the original rectification order and in the consent order was ‘leaks through external walls’.
250.In the rectification order the Registrar asserts that this defect was a breach of section 49 in that it was a failure to comply with FP1.4 of the BCA.
251.The Tribunal finds that the defect is a breach of section 49 of the BA for the following reasons.
252.The “Nature of non-compliance” refers to contravention of Part FP1.4 of the BCA and S 42(1)(a), (b) and (c) of the BA. The “Defect” refers to Units 1, 17 and 18. Evidence before the Tribunal, Exhibit A5, is that the defect was occurring in Apartments 1, 8, 17 and 26 and that the external walls are constructed with a single skin that relies on this single skin of the wall preventing the penetration of water. The ‘defect’ refers to a wall cavity. The system as described does not appear to the Tribunal to be a traditional cavity wall system which would rely on any water entering through the outer skin or openings then being drained away from the cavity via flashings and weep holes without coming in contact with the inner skin and thus permitting water to penetrate the external wall of the building. As water is entering beyond the single skin proprietary product the tribunal considers this to be a failure in the construction of the wall and therefore a contravention of Part FP1.4 of the BCA and section 42(1)(a), (b) and (c) of the BA.
253.The Tribunal finds that the physical work required in item 46 was completed on 20 February 2014. In fixing this date the Tribunal has not taken into account delays included in obtaining approvals or certifications.
254.The Tribunal has found a failure to comply with the section 49 of the BCA but notes that the Registrar did not actually allege this for Unit 26.
………………………………..
Ms L. Crebbin, General President
for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER:
OR 14/01
OR 14/02
OR 14/03
PARTIES, APPLICANT:
Construction Occupations Registrar
PARTIES, FIRST RESPONDENT:
B&T Constructions (ACT) Pty Ltd
PARTIES, SECOND RESPONDENT:
Ivan Bulum
PARTIES, THIRD RESPONDENT:
Cornelius Hank Van Roon
COUNSEL APPEARING, APPLICANT
Mr McCarthy
COUNSEL APPEARING, ALL RESPONDENTS
Mr Erskine SC
SOLICITORS FOR APPLICANT
ACT Government Solicitor
SOLICITORS FOR ALL RESPONDENTS
Trinity Law
TRIBUNAL MEMBERS:
Mr A. Anforth – Senior Member
Mr G. Trickett – Senior Member
DATES OF HEARING:
4, 6, 7, 8 August 2014
8 & 9 October 2014
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20
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