Coppens v Water Wise Design Pty Ltd - [2013] QCAT 752

CITATION:

Coppens v Water Wise Design Pty Ltd [2013] QCAT 752

PARTIES:	Josephine Rosalie Coppens (Applicant)
v
Water Wise Design Pty Ltd (Respondent)

APPLICATION NUMBER:

BDL375-10

MATTER TYPE:	Building matters
HEARING DATE:	3 October 2013

HEARD AT:

Hervey Bay

DECISION OF:

Paul Favell, Member

DELIVERED ON:

29 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

Building and Construction – applicant engaged the respondent to design an onsite dispersal area – where claim made against the respondent is for the supply of false and misleading information – where claim is for breach of statutory duty – whether the Tribunal has jurisdiction to determine claims – whether claims made out

Queensland Building Services Authority Act 1991 ss 75, 77, Schedule 2 –
Plumbing and Drainage Act 2002 ss 93, 94, 96 - Standard Plumbing and Drainage Regulations 2003;
Ombudsman Act ss 49(2)(a), 50 –
Onsite Sewerage Code 2002, clause 11.2 (c) - Domestic Building Contracts Act 2000 s 8, Schedule 2.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms Josephine Rosalie Coppens

RESPONDENT:

Mr Clifford Searle

REASONS FOR DECISION

Ms Coppens owns land at 3 West Ringdall Court, Craignish. Acting as owner-builder, she sought to construct a residential dwelling on the land. The building work is substantially completed. As part of the building work, Ms Coppens had installed an onsite sewerage facility. On 9 June 2005, she applied to the then Hervey Bay City Council and submitted plans for the installation of the facility. Her application specified the installation of a sand filtered septic system.
The then Council on 23 June 2005 approved the application and the facility was installed. Ms Coppens has complained that the installation by a licensed plumber does not comply with the Plumbing and Drainage Act 2002.
Ms Coppens complained to the Council and subsequently to the Queensland Ombudsman in October 2007.
The complaint to the Ombudsman alleged that the Council on 23 June 2005 issued a compliance permit number 056573 for the installation of an onsite sewerage facility, contrary to the Plumbing and Drainage Act 2002, in that, the sand filter component of the facility did not have a “type specification approval” issued by the Chief Executive of the then department of Local Government, Planning, Sport and Recreation as required by s 96 of the Plumbing and Drainage Act 2002 in force at the time.
The application to the Council (Exhibit 3) sought for the onsite sewerage facility approval for “sand filtered septic system recycling water for irrigation and garden.” That description on the application was written by Ms Coppens. Also included in her handwriting in the box providing details of the disposal of sewerage in an unsewered area were the words “garden irrigation.”
Accompanying the application was a Water Wise Design for the site which stated
This sewerage system is designed to the standard required by the onsite sewerage code July 2002; the design is for 5 persons, if any alteration to this design occurs, the reserved disposal area may need to be constructed.
The design had noted on it “all plumbing must comply with the Plumbing and Drainage Act 2002 and the Standard Plumbing and Drainage Regulations 2003.”
Evidence was given at the hearing that just before June 2005, Ms Coppens requested a design for a sand filtered septic system for irrigation to the garden. The resultant design is the plan marked “A” which is part of Exhibit 3. It shows the circular design of the house area with pipes leading to a “3000 LT all-purpose septic tank with OSI filter” and then to “sand filter installed to manufacturers’ specification” and then to “180sq metres effluent disposal area per Water Wise Design Report.”
The plan has been stamped as having been examined for the purposes of the standard sewerage water supply law only, and dated 23 June 2005. It bears a stamp from the Hervey Bay City Council as follows,
Effluent from this onsite sewerage facility, unless disinfected in accordance with the requirements of the onsite sewerage code 2002, must be dispersed into the land application area, a minimum of 100mm below surface to top soil.
Ms Coppens complained to the Queensland Ombudsman “that a council officer had previously verbally recommended the particular system to her as suitable for use on the subject land and a licensed plumber to install the system.” She contended that she applied for a sand filtered septic system based on verbal advice from the council that a sand filtration system was required in the area of the city in which the subject land is situated. The relevant plumbing work has been substantially completed and the onsite sewerage facility is operational. I was told it has been operating since 2006.
The relevant plumbing work has been substantially completed and the onsite sewerage facility is operational. I was told it has been operating since 2006.
During the hearing, Ms Coppens tendered a CD which contained evidence given in another matter by Mr Stan Jones, a plumber who did work at her property. I listened to the CD and had a transcript done of the portion of the CD to which I was asked to listen. It appears from that evidence that Mr Jones said that the system he put in was a secondary waste treatment system. He explained,
A primary waste treatment system is a septic tank. What you get out of a septic is primary effluent, which can be further treated by a sand filter or other means, even if it’s just adding chlorine. So the sand filter purifies the effluent.
The Ombudsman prepared a report dated 7 November 2008 in response to the complaint made to him by Ms Coppens. He explained the genesis of the complaint as:
A complaint was received by the Plumbers and Drainers board on 20 January 2006 from a competitor which manufactures aerobic sand filtration on site sewerage systems to the effect that two local plumbers in the Hervey Bay area were installing purawaste aerobic sand filters and that the council was approving their installation in the knowledge that the system did not have the requisite approval under the Plumbing and Drainage Act.
Ms Coppens had apparently made a series of complaints to the plumbers and drainers board about the licensed plumber’s standard of work on the subject land, and as a result she became aware of what she regards as the questionable legal status of her onsite sewerage facility and the steps that might need to be taken to ensure it was lawfully installed. Those complaints about the council’s actions were considered by the Ombudsman.
As I have said earlier, Ms Coppens also commenced an action against the plumber which resulted in an order that Mr Jones pay her the sum of $8,468.16.
Section 96 of the relevant Plumbing and Drainage Act 2002, provided:
(2) The local government may give approval only if-
(e) The facility includes an onsite sewerage treatment plan (other than an onsite treatment plan consisting only of a septic tank)-
(i) To the extent the plant consists of the pre-fabricated item – the plant conforms to a model approval;
(ii) To the extent the plant consists of the built item- the plant conforms to a type specification approval.
The Ombudsman contended that the onsite sewerage facility should have been dealt with under s 96 of the Plumbing and Drainage Act 2002.
He found that council had proceeded on the basis that the sand filter component of the onsite sewerage facility installed on the subject land was a “built item.” He found that on the evidence before him, “it is probable that the council approved the built item, namely the sand filter, without ensuring that the plant conformed to a type specification approval issued by the Chief Executive of the then Department of Local Government, Planning, Sport and Recreation, as required by s 96(2)(e)(ii) of the Plumbing and Drainage Act.
Section 93 of the Plumbing and Drainage Act provided:
Model approval for pre-fabricated items
(1) A person may apply to the Chief Executive for an approval (a model approval) for a stated pre-fabricated item.
(2) The Chief Executive may give the model approach only if the Chief Executive is reasonably satisfied that the item conforms with the onsite sewerage code…
Section 94 provides:
Type specification approval for built items
(1) A person may apply to the Chief Executive for an approval (a type specification approval) for a stated built item.
(2) The Chief Executive may give the type specification approval only if the Chief Executive is reasonably satisfied that the item conforms with the onsite sewerage code.
“Built item” is defined in the Act as meaning:
(a) an onsite sewerage treatment plant that is wholly built on the premises where it is, or is to be, used; or
(b) an element of an onsite sewerage treatment plant, if the element is wholly built on the premises where the plant is, or is to be, used.
Onsite sewerage facility means
A facility installed on premises for:
a) treating, on the premises, sewerage generated on the premises, and disposing of the resulting effluent-
(i) on the premises, or
(ii) off the premises by-
(1) (A) common effluent drainage, or
(2) (B) collection from a tank on the premises; or
b) Storing on the premises sewerage generated on the premises for its subsequent disposal of the premises by collection from the premises.
Onsite sewerage treatment plant is a sewerage treatment plant installed or to be installed on premises as part of an onsite sewerage facility for the premises.
Prefabricated item means-
(a) a wholly prefabricated onsite sewerage treatment plant; or
(b) a prefabricated element of an onsite sewerage treatment plant
The Ombudsman said, “even if the sand filter is properly to be regarded as a prefabricated item, the council is still required to consider whether it conformed with a model approval, issued by a chief executive under s 93 of the Plumbing and Drainage Act before giving its approval.
The council was of the view at the time of approving the installation of the onsite sewerage facility that the onsite sewerage facility constituted a primary treatment system only. They said to the Ombudsman that that was based on advice on 11 October 2001 from the then Department of Natural Resources and Mines. They concluded that the addition of a sand filter in the system did not constitute secondary treatment of the effluent in the context of AS/NZS1547-2000. The council was of the view that the purawaste system was a primary treatment system only, but provided a high effluent quality than the situation where a septic tank alone was installed without a supplementary sand filter.
Accordingly, the question posed was whether or not the systems in question were systems that required Chief Executive approval. Council took the stance that Chief Executive type of model approval only related to secondary quality effluent and better.
The Ombudsman was of the opinion that the Council’s view was erroneous in that s 96(2)(e) of the Plumbing and Drainage Act applied as the onsite sewerage facility in question included a component requiring either a type specification approval or a model approval issued by the Chief Executive of the then Department.
The Ombudsman said that the Council should not have approved the onsite sewerage facility until it had satisfied itself that the onsite sewerage facility components conformed with either a type specification approval or a model approval issued by the Chief Executive of the then Department. The onsite sewerage facility in question included a component requiring either a type specification approval or a model approval issued by the Chief Executive of the DLGPSR. In giving its approval without having so satisfied itself, the Council contravened s 96(2) of the P&D Act. Accordingly, the Council’s actions in approving the OSF were contrary to law. In terms of ss 49(2)(a) and 50 of the Ombudsman Act, the Ombudsman made a recommendation that,
In consultation with the complainant, the new council at its cost replace the purawaste sand filter on the subject land with similar apparatus, which has a current type specification approval issued by the Chief Executive under the P&D Act and arrange for the associated installation work to be undertaken by a licensed plumber.
That recommendation has not been acted on although I was told by Ms Coppens that the Council offered to replace the sand filter but that offer was withdrawn because she would not sign a deed of indemnity.
I am informed that there are no notices from the Council as to the system and that there are no outstanding issues.
In part relying on the report of the Ombudsman Act, Ms Coppens filed an application in QCAT on 15 November 2010. The application was made as one for domestic building dispute. She named the Fraser Coast Regional Council (which replaced the previous council) as a respondent along with Water Wise Design Pty Ltd. She sought orders that those respondents reimburse the applicant the sum of $63,410.21 plus interest.
She said that those costs and losses were incurred by her due to the Council and Water Wise Design Pty Ltd supplying false and misleading information so as to “divert the course of justice” and failing in their statutory duty of care. She also sought an order that those respondents pay her the sum of $22,382.96 “so that the illegal secondary waste water treatment plant can be removed and replaced including all associated work not yet completed to make the plant compliant to all codes, standards and acts, presently in place at the respondents’ costs due to supplying false and misleading information so as to “divert the course of justice” and failing in their statutory duty of care.” She then sought other orders specifically against the Fraser Coast Regional Council.
On 9 June 2011, the Tribunal struck out the claim against the Fraser Coast Regional Council concluding that it had no jurisdiction to hear the case against the council and at a compulsory conference held on 19 September 2011 it was determined that a question stated should be determined by the Tribunal as a preliminary matter. The claim against the council was struck out primarily on the grounds that the Council’s actions in considering and approving design plans for the plaintiff’s residence was not Tribunal work because it was not related to the performance of the review of the domestic building work.
On 20 January 2012, the Tribunal considered the following: “whether, under the Plumbing and Drainage Act 2002, the Standard Plumbing and Drainage Regulation 2003, the Onsite Sewerage Code 2002, and AS/NZ1547-2000 as they existed at 2 June 2005, the treatment facility could be lawfully approved by the local authority without the prior approval of the system by the Chief Executive of the Department of Natural Resources.”
At that stage the Tribunal considered whether departmental approval was required. In the reasons, it was said, “the applicant argues that, as neither a model approval nor a type specification approval was obtained, the local government ought not to have approved the treatment facility.”
The respondent there argued that, as the plant consisted of built work, the relevant question was whether a type specification approval was necessary and it contended that the need for such approval was determined on whether a type specific approval was required by the Onsite Sewerage Code 2002 which was applied to the treatment facility by the operation of s 92 of the Plumbing and Drainage Act 2002. The respondent also relied on Clause 11.2 (c) of the Onsite Sewerage Code 2002 as providing that approval by the Department of Natural Resources did not apply to a built item that was specifically designed and constructed in situ by the owner or occupier of the premises, or a person other than the owner or occupier and effluent is discharged to a subsurface land application system.
The Tribunal was there persuaded
by the respondent’s submissions that the application of s 11.2 of the Onsite Sewerage Code 2002 to the approval process described in s 96 of the Act has the effect of removing the need for approval to be obtained from the Department of Natural Resources in respect of the subject treatment facility.
On 22 June 2012, an application for leave to appeal the determination made on 12 January 2012 was determined. The question which was posed on the leave to appeal application was:
whether under the Plumbing and Drainage Act 2002, the Standard Plumbing and Drainage Regulation 2003, the Onsite Sewerage Code 2002 and AS/NZ1547-2000, as they existed at 2 June 2005, the onsite sewerage treatment facility as installed at the applicant’s premises at 3 Westringia Court, Craignish, could be lawfully approved by the local authority without the prior approval of the system by the Chief Executive of the Department of Natural Resources Mines.
In the course of that decision, Mr J Jerrard QC noted that Mrs Coppens had engaged the respondent, Water Wise Design Pty Ltd to design the sewerage treatment facility. I note that in the hearing before me the parties told me he was engaged to design a dispersal (distribution) system, rather than an onsite sewerage system.
He said,
On or about May 2005, Ms Coppens had engaged Water World Design Pty Ltd to design an onsite sewerage system for a house being built by her near Hervey Bay… She contended that the then Local Council had referred her to a named plumber, Stan Jones Plumbing and Water Wise Design Pty Ltd when she had approached that Council seeking confirmation that an onsite sewerage system she had proposed to have installed would be compliant with local building requirements. It is common ground that Water Wise Design Pty Ltd did design an onsite sewerage system for Ms Coppens to be installed in the Premises at … Craignish on or about 8 June 2005.
That application for leave to appeal was dismissed.
Ms Coppens appealed to the Court of Appeal which, on 21 February 2013, refused her application for leave to appeal and her application to adduce further evidence. As part of the reasoning, the Court of Appeal per Fraser JA with whom Gotterson JA and Martin J agreed, said,
[14] The next question agitated by Ms Coppens concerns the significance of the use of prefabricated items in the construction of the onsite sewerage treatment plant. As per the septic tank, it was not found as a fact that it was part of the sewerage treatment plan as opposed to being designed for use merely for storage before sewerage treatment. It appears from the plans that the sewerage treatment plant was to be constructed wholly onsite by the digging of trenches, laying of sand, and installation of pipes. There was also no finding that the septic tank as designed and installed did not comply with the standard specified in s 92(1)(b). The septic tank may be put to one side for present purposes.
[15] As the appeal tribunal pointed out, the definition of “built item” includes an element of an onsite sewerage treatment plant so that, at least to that extent, clause 11.2(c) dispenses with the need for type specification approval under s 94 as a condition of local government approval of the facility, under s 96(2)(e)(ii). The aerobic sand filter is certainly an element of the sewerage treatment plant. If it is not the entire sewerage treatment plant. Ms Coppens argued that components of the sand filter were prefabricated, particularly the “100mm slotted PVC pipe” and the “pump well 300mm PVC pipe” in the respondent’s design. That appears to be so, but it is not at all clear that the definition of “built item” was necessarily inapplicable to the constructed sand filter and every element of it merely because some components of the filter were prefabricated. Questions of degree and character must be involved in deciding whether the use of a particular prefabricated item precludes a conclusion that the plant must be regarded as “wholly built on the premises” for the purposes of the definition of “built item.” It is not appropriate to grant leave to appeal for the purposes of a reconsideration of those factual questions.
[16] It is inappropriate for another reason to grant leave to appeal to consider whether Chief Executive Approval was required under s 93 for any particular prefabricated item before the local authority could approve the facility under s 96(2)(e)(i); that was not the question asked by the adjudicator. The question asked only whether lawful approval could be given by the local authority without the Chief Executive’s prior approval “of the system.” The adjudicator’s answer, the appeal Tribunal’s affirmation of which is the subject matter of the proposed appeal, did not decide whether local authority approval could be given in the absence of Chief Executive approval “for a stated prefabricated item” under s 93(1). (I note also that the question inappropriately referred to local authority approval of the “onsite sewerage treatment system,” whereas s 96 refers to approval by a local authority of the building etc. of an “onsite sewerage facility.”
[17] The question apparently lacked utility for another reason. In argument at the hearing of the application, both Ms Coppens and the respondent endorsed the remarks by the adjudicator that, “any decision as to the lawfulness or otherwise of the local authority’s approval of the system is not necessarily determinative of the wide ranging allegations made against the respondent, which relate to its role in designing the system, including, inter alia, advice as to the appropriateness of the system for the relevant system.” I emphasise that the court has not had the benefit of the transcript of the hearing when the question was set down for hearing in the tribunal, but it appears from the party’s submissions that the question was set down at the instance of the Tribunal rather than upon application by either party. Perhaps the question has its genesis at a time when the Council remained a party to the proceedings, in which case there might perhaps have been some point in asking the question. Once the council was removed as party, there was no significant point in having the question answered.
[18] The inappropriate form of the question and its apparent irrelevance to the real substance of Ms Coppens’ claims combined to suggest that any error of law in the Tribunal’s answer to the question will not produce real injustice to Ms Coppens. This is not an appropriate case in which to grant leave to appeal.”

Before the Court of Appeal gave its decision on 7 June 2013, Ms Coppens sought orders in the Tribunal against the Fraser Coast Regional Council. She sought various forms of relief including:
·   An award for damages in excess of $100,000
·   An order that the Council be prosecuted in accordance with various provisions of the Ombudsman Act 2001
·   An order that the Council grant an extension to her building permit
·   The Ombudsman Act 2001 be used as “an enabling Act for the purposes of the application”.
Ms Coppens argued at that stage that QCAT had jurisdiction to make the orders sought because:
·   Her complaints arise from “administrative action” taken by the Council.
·   These administrative actions were the subject of a report delivered by the Queensland Ombudsman in November 2008 following her complaint to that body.
· It is possible in those circumstances to rely on the provisions of section 227 of the QCAT Act to imply that QCAT has jurisdiction to make orders about these “administrative actions”.
·   The application is an “other civil proceeding”.
The Tribunal on 26 March 2013 found that the Tribunal had no jurisdiction to make the orders sought.
Ms Coppens sought leave to appeal on that decision and on 3 December 2013 the President of QCAT dismissed her appeal primarily on the basis that whatever decisions of the council Ms Coppens purports to attack, they were not decisions in respect of which QCAT is invested with jurisdiction under an enabling Act.
In the application before me Ms Coppens has set out in part C2 the reasons why she considers the orders she seeks should be made. Much of those reasons are contained in or a modification of the reasons set out above. The submissions sought to be relied on are in part a reflection of what has already been told to the Tribunal and to the courts on various occasions.
Essential to Ms Coppens claim is her belief that the sewerage system presently installed is an illegal waste water treatment plant. Her reasoning behind that appears from what she told the Ombudsman.
In each of the orders sought against Water Wise Design Pty Ltd Ms Coppens asserts that Mr Clifford Searle supplied false and misleading information so as to “divert the course of justice” and failed in a statutory duty of care.
QCAT has jurisdiction to determine matters it is empowered to deal with under the Queensland Civil and Administrative Tribunal Act 2009 or an enabling Act.
The Queensland Building Services and Authority Act 1991 allows a person involved in a building dispute to apply to the Tribunal to have the Tribunal decide the dispute. The term “building dispute” is defined in Schedule 2 of the QBSA Act as meaning, “a domestic building dispute…”
“Domestic building dispute” means-
(a) a claim or dispute arising between a building owner and building contractor relating to the performance of reviewable domestic work, or a contract for the performance of reviewable domestic work; or
(b) a claim or dispute arising between two or more building contractors relating to the performance of reviewable domestic work, or a contract for the performance of reviewable domestic work; or
(c) a claim or dispute in negligence, nuisance or trespass relating to the performance of reviewable domestic work other than a claim for personal injuries; or
(d) a claim or dispute arising between a building owner and building contractor in any one or more of the following, relating to the relating to the performance of reviewable domestic work, or a contract for the performance of reviewable domestic work-
(i) an architect;
(ii) an engineer;
(iii) a surveyor;
(iv) a quantity surveyor;
(v) an electrician or an electrical contractor;
(vi) a supplier or manufacturer of materials used in the Tribunal work.
“Reviewable domestic work” is defined in Schedule 2 of the QBSA Act as, “domestic building work under the Domestic Building Contracts Act 2000, except that for, applying s 8(8) of that Act, the definition excluded building work in that Act, is taken not to mean anything mentioned in paragraph (b), (c) or (d) of the definition.”
“Domestic building work” is defined in s 8 of the Domestic Building Contracts Act 2000. Each of the following is domestic building work-
(a) the erection or construction of a detached dwelling;
(b) the renovation, alternation, extension, improvement or repair of a home;
(c) removal or re-siting work for a detached building.
Relevantly, “domestic building work” includes “work (associated work) associated with the erection, construction, removal or re-siting of a detached dwelling.”
Section 8(8) of the Domestic Building Contracts Act 2000 provides that “domestic building work does not include excluded building work.”
“Excluded building work” is defined in Schedule 2 of the Domestic Building Contracts Act 2000 to be, relevantly,
(b) design work carried out by an architect, engineer or draftsperson;
(c) the preparation of plans, specifications, or bills of quality for the carrying out of domestic building work; and
(d) work involved in obtaining foundations data about a building site.
A “building contractor” is defined in Schedule 2 of the QBSA Act as meaning, “a person who carries on a business that consists of or includes carrying out building work, and includes a sub-contractor who carries out building work for a building contractor.”
“Building dispute” is defined in Schedule 2 of the QBSA Act as meaning
(a) a domestic building dispute; …
“Building work” means, amongst other things:
(c) the provision of […] water supply, sewerage or drainage in connection with a building; or
(e) any site work (including the construction of retaining structures) related to work of a kind referred to above; or
(f) the preparation of plans or specifications for the performance of building work.
In her application Ms Coppens contends that the respondent supplied false and misleading information to the Queensland Commercial and Consumer Tribunal, the new Queensland Consumer and Administrative Tribunal, the Queensland Ombudsman, the applicant, and all councillors present at the meeting of 8 April with Mr David King director development services of the Hervey Bay Council.
On a close examination the only real allegation against Water Wise design Pty Ltd is that Mr Clifford Searle supplied information to the Hervey Bay City Council. Ms Coppens identified an onsite sewerage facility designer compliance statement and a Form 8 compliance certificate dated 13 December 2006 as being or containing the false and misleading information.
As to the onsite sewerage facility designer compliance statement (part of Exhibit 3) she contends:
The onsite sewerage facility designer compliance statement clearly states his obligations to the applicant. Yet his plan did not make any mention of the waste water treatment plant he had designed the plan for. He did not fulfil his obligations to inspect the installation at any stages. He did not supply the certificate of compliance on completion of the installation but some 16 months later. The waste water treatment plant did not then, nor does it now, comply with any of the mentioned acts, standards, regulations or codes, is incomplete and recycles rain water every time it rains.
With respect to the form 8-Compliance certificate dated 13 December 2006, Ms Coppens contends:
Mr Searle from Water Wise Design Pty Ltd had no knowledge if any of the installation of the waste water treatment plant purawaste at Lot 102 West Ringdall Court, Craignish as he have never been to the applicant’s property. Had he been to the above address he would have seen the mess around the primary tank and never have approved this installation. He would also have seen that there were no diversion banks in place and the waste water treatment plant was incomplete and should not have been approved by him. He could also have seen that there is no cut-off drain at the tip of the dispersal area and furthermore there is no space to put one in as the first trench is only 1.1 metres from the neighbour’s fence.
The onsite sewerage facility designer compliance statement is marked with the letter B in exhibit 3. It says
I certify that I Clifford Searle of Water Wise Design Pty Ltd am the person responsible for the design of the onsite sewerage facility Lot 102 West Ringdall Court, Craignish, and acknowledge that it is in conformity with the requirements of AS1547-2000 and the site and soil evaluation report carried out by Wide bay Geotechnical Services. In conformity with AS1547 (clause 4.5.5-4.5.7) I undertake to inspect the installation at appropriate stages and submit a certificate of compliance together with a commission report if required on completion of the installation.
Mr Searle contends that the compliance statement relates solely to the dispersal (distribution) system he designed. In evidence he told me,
I am not designing the sand filter or septic tank, I am designing the onsite sewerage system which is the dispersal area, particularly because that is specifically shown in the other documentation as part of the Council approval… The onsite sewerage system is made up of various parts. I have designed specifically as per the documentation statement.
In my view there is no evidence to suggest that the certification contained in the designer compliance statement is false or misleading in any way and it has not been shown that the design does not comply with the standard. Mr Searle gave evidence that he followed the guidelines set out in AS1547-2000 to design the system. The reference to clause 4.5.5-4.5.7 in the compliance statement is an undertaking to do something rather than a certification that a standard has been complied with. Even if the certification is (as it appears on its face to be) a certification that Mr Searle designed the onsite sewerage facility, it was in conformity with AS1547-200 and the site and soil evaluation report.
Central to much of Ms Coppens contentions is her desire to have a secondary waste water treatment plant. She said that when she went to see the council she showed the council a brochure which showed a secondary waste water treatment plant onsite sewerage facility. What she got was the purawaste onsite sewerage facility.
The purawaste aerobic sand filter was a filter certified by Cardino MBK Pty Ltd and makes up part of exhibit 3. It was installed by the plumber Mr Jones. There is no mention of that filter on the distribution plan provided by Mr Searle.
Ms Coppens relied on the evidence from Mr Jones given in another matter to show that the system he says is a secondary system. Mr Searle gave evidence that the system was a primary system. He said that Ms Coppens came to his office and asked him to “design a sand filtered septic system recycling water to a garden area.” Mr Searle gave evidence concerning the designer compliance statement and said:
So what I am saying that I will inspect the disposal area and if it complies with AS1457 I have no choice but to submit a Form 8 notice which it did comply and which I did submit. The point I am now making is that the sand filter, which you note on my sand filter, says “to be installed to manufacturer’s specifications”. It has absolutely nothing to do with me what system is installed as along as it is a sand filtered septic system recycling water to the garden area which it does.
He said that he inspected the area and he submitted photographs of the disposal area. He told me that it was “working fine.”
Mr Searle said during evidence
My obligation, as I have said specifically in the documentation, is to inspect the disposal area. Ms Coppens has said she employed me to design the disposal area. I did not design the sand system. Whether it is primary or secondary is irrelevant to my design. To be frank with you, if a secondary system went in there the design would remain the same. My design is compatible with both. … Whether it produces primary effluent or secondary effluent is quite frankly irrelevant to my design because I designed the system to a primary system. All of my evidence shows that. The result is that eight years later the disposal area is operating exactly how it should. It’s halfway through its life and its working quite well.
Mr Searle told me that the Council could approve a primary system as long as it goes to subsurface irrigation without the need for the chief executive to approve it. He told me that the system in place does that and it is not necessary if the council approved it for the chief executive to approve it.
In my view, since this claim is only against Waterwise it is not necessary for me to decide whether the Council acted appropriately or whether their approval was properly given.
Ms Coppens has not established that Mr Searle supplied false and misleading information to the Hervey Bay City Council in the onsite sewerage facility designer compliance statement.
The applicant has not shown that the design is not an appropriate design. The design does not purport to be a design of a filter system. It specifically states “sand filter installed to manufacturer’s specification.” I note that the design requires that all plumbing work must comply with the Plumbing and DrainageAct and the Standard Plumbing and Drainage Regulations. The applicant has not shown any negligence associated with the preparation of the design.
Form 8 is contained in exhibit 3. It is a compliance certificate dated 13 December 2006 and contains a declaration by the respondent that “I hereby state that the work has been completed in conformity with the Standard Plumbing and Drainage Regulation 2003 and the relevant compliance permit, and, that the information provided in this form is a true and accurate record that I am an approved person”. It shows that the land application installer was Stan Jones. It describes the work performed as “onsite sewerage system” and that the work was completed on 21 November 2006.
Mr Searle says that that certificate is a certificate in respect of the work carried out pursuant to his design of an onsite dispersal area. In my view that is consistent with what was said in the compliance statement and the evidence given before me. Mr Searle was not certifying the work done other than the work in accordance with his plan. To certify other work Mr Searle would have had to have been an approved person for assessment of ongoing sewerage work and hence the person who designed the onsite sewerage facility.
It was common ground that Mr Searle did not design the onsite sewerage facility rather he designed the onsite dispersal area. There is a destination between an onsite sewerage facility and an onsite sewerage system.
During the hearing, Ms Coppens asserted on a number of occasions that Mr Searle has said that he had designed the onsite sewerage facility. He expressly denied that. It seems that Ms Coppens relied on the notes in form 8 and the wording of the onsite sewerage facility designer compliance statement. It was common ground that Mr Searle was only engaged to design an onsite dispersal area. He didn’t have to design an onsite sewerage facility. Once that is appreciated, I cannot find any evidence of Mr Searle providing false and misleading information or being in breach of any statutory duty of care. No such breach by Mr Searle has been identified and proved.
In any event even if the information contained in the Form 8 and the compliance statement was misleading there is no connection between that and the losses claimed by Ms Coppens.
Further, even if there was some relevant misrepresentation shown, that would not be a matter within the jurisdiction of the Tribunal because it is not a “domestic building dispute” and accordingly not a “building dispute” which entitled a person who is involved in a building dispute to apply to the Tribunal to decide the dispute. In my view, insofar as negligence is alleged, it is not a “claim or dispute in negligence relating to the performance of reviewable domestic work.” To be within the jurisdiction of the Tribunal, the negligence would have to be in the preparation of the plans or specifications for the performance of building work. I cannot identify any such proven negligence.
I accept the evidence that the system as installed is working.
Ms Coppens has rejected offers by the council to replace the sand filter and provide the appropriate certificate.
In my view any question as to whether or not the work actually done was illegal for the reasons advanced by Ms Coppens does not reflect on the respondent.
I find that the respondent was engaged to carry out the design of the dispersement area and not the onsite sewerage facility. I cannot find any negligence or breach of statutory duty in the work done under those instructions.
Ms Coppens alleged that Mr Clifford Searle trading as Water Wise Design Pty ltd failed in a duty of care by designing the plan of the water and sewerage plan which did not comply with various pieces of legislation.
The particulars of her claim in this regard are contained in 11 items at 1.2 in part C2 of her claim.
Because I have found that the work carried out by the respondent was according to the instruction given, namely to design the onsite dispersal area and not an onsite sewerage facility the particulars provided are not relevant to the work for which the respondent was engaged and carried out. The allegation of a failure of a duty of care if it were relevant to a claim in this tribunal seems to proceed on the basis that the respondent was engaged and did carry out the design of an onsite sewerage system. In my view that is not so.
Ms Coppens claimed $63,410.21 plus interest particularised as follows
1.Registration of caravan from 19-02-08 to 10-09-10 (plus costs to date of claim payout) $416.10
Depreciation of caravan from December 2007 – December 2010 $5625
Depreciation of mobile aluminium scaffold from December 2007 – December 2010 $2034
2.Compensation for costs of materials and labour to build retainer wall $8828.60
3.Claim for the applicant medical expenses, medication $186.80, psychologist $50, $236.80
4.Loss of income from B&B from March 2008 to settlement date (at $16,900 per annum) $35,750
5.Right to information application fees (Ombudsman, FCRCDERM) $114
6.Photocopying, paper, ink, photos, postage, stationery $437.58
7.Lawyers cost Murphy Schmidt $431.20
8.Water and sewerage plan design $330 and lodgement fee of $66, $396
9.Loss on rain water tank rebate $1000
10.Safety release valve from floor hot water unit $106.45
11.Cost of work to date from Poona plumbing (new plumber) (not including work yet to be completed) $15,094.48
Cost of remaining work by Stan Jones plumbing $7060
Extra costs incurred to original plumber’s contract $8038.48 TOTAL: $63, 410.21
The amounts set out above were accepted by Mr Searle as being supported by relevant paperwork. However he disputed that any of those costs related to any wrongdoing on his part.
Even if it was shown that there was a liability on the respondent, no link has been established between the loss claimed and any wrongdoing on the part of Mr Searle or the respondent.
Ms Coppens also claimed the sum of $22,310.15 particularised as follows
1.    A complete eco safe secondary waste water treatment plant $19,250 minus $7,891, $11,359
2.    Cost of the required diversion banks $725
3.    Labouring costs to complete the applicant’s house $9,937.12
4.    Cost of loss of warranty on new gas/electric stove and solar hot water service $200
5.    The increase in cost of products yet to be purchased to complete the applicant’s house $89.03
TOTAL $22,310.15
In my view, the claim for those amounts suffers from the same problem identified above.
The appropriate order is that the applicant’s claim is dismissed.