Jones v Queensland Building Services Authority
[2010] QCAT 563
| CITATION: | Jones v Queensland Building Services Authority [2010] QCAT 563 |
| PARTIES: | Ms Sandra Fay Jones |
| v | |
| Queensland Building Services Authority |
| APPLICATION NUMBER: | QR261-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 24 August 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver – Senior Member |
| DELIVERED ON: | 10 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application is allowed. 2. The decision of the respondent of 7 December 2009 is set aside and in lieu thereof a decision that the defective building the subject of the direction to rectify No 33762 is primary building work. |
| CATCHWORDS : | Insurance – where claim disallowed under the respondent’s Home Warranty Insurance Scheme – whether tiling work on a concourse between the residence and an inground swimming pool is “primary building work” or “associated building work” within the meaning of those terms in ss 11 and 12 of the Regulations to the Queensland Building Services Authority Act – where meaning of “construction of a residence” considered. Queensland Civil and Administrative Tribunal Act 2009, s 20 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 058 Ross v Queensland Building Services Authority & Raymond (2006) QCCTB 170 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Sandra Fay Jones represented herself |
| RESPONDENT: | Queensland Building Services Authority represented by Ms Stroud, a Solicitor of the Building Services Authority |
REASONS FOR DECISION
The application
This is an application to review a decision of the Queensland Building Services Authority made on 7 December 2009 to refuse to allow a claim for defective tiling carried out by the builder of their house at 16-16 Herron Close, Cashmere in 2005.
The application for review is made pursuant to section 86 of the Queensland Building Services Authority Act. The purpose of the review hearing is for the Tribunal to produce the correct or preferable decision by way of a fresh hearing on the merits.[1]
[1] QCAT Act section 20. Kehl v Board of Professional Engineers of Queensland [2010] QCATA 058
Background
On 7 July 2004 the Applicant contracted with Didsbury Pty Ltd (“the builder”) for it to build their house at 14–16 Herron Close, Cashmere for a contract price of $650,000.00. In the usual way, the builder paid the insurance premium to the Queensland Building Services Authority (“the Authority”) which insurance expires on 7 January 2011. The building works progressed to the point where practical completion was reached in March 2005 and thereafter the applicants possession of the house..
In May 2009 problems began to develop with tiling around the outside pool area at the rear of the house which is on the same level as the living area. As is evident from the plans and the photographs, the pool area is adjacent to the main living area so that there is direct access to the tiled pool concourse area from the main bedroom, rumpus room, family room and entertainment area, in fact from the whole of the back of the house.
There is a distance of approximately 4-5 metres from the back wall of the house to the edge of the pool coping. The plans show that the area under the patio roof, and the eave or deck, as it is described on the plan, is tiled but there is no detail of the finished surface of the area between a notional line dropping down from the roof gutter to the edge of the pool.[2] However one plan describes the area as “external slab on ground and part of pool area paving” with an arrow pointing to under the patio and under the eaves[3]. In addition the area described as the deck has a gazebo type structure which protrudes into that open concourse space between the house and the pool.
[2] Exhibit 9 to the statement
[3] Statement of Peter Lack “PJL 3”
At the time of construction the pool shell was poured first, followed by the house footings and slab upon which the house frame was constructed. The patio, deck and veranda roofs, as they are described on the plan, are supported by 100mm by 100mm timber posts in stirrups with their own individual footing[4]. When the house construction was completed a second slab was poured between the footing/slab of the house to the coping around the pool, the result was that from the patio to the master bedroom adjacent to the main living area was all concreted around the pool shell. Tiles were then laid on the concrete slab abutting the main house footing under the patio deck and veranda out to waters edge of the pool. The end result is that one walks from the house directly on to a tiled area, which is then continuous from the house to the rear boundary.
[4] Refer to photographs exhibit 3
A drainage system was installed at the time the slab was poured to take water from the tiled concourse area into, presumably, the stormwater system. The drainage system is depicted in the photographs.
To allow for movement of the slab, expansion joints were installed where the concrete slab abuts the pool bond beam and presumably where the concrete slab abutted the footing of the house. When the tiles were laid, particularly around the pool, they were laid directly over the installed expansion joints that is, tiles were laid partially on the slab and partially on the bond beam of the pool coping. This gave the aesthetic effect of seamless tiling from the house to the waters edge of the pool rather than having a joint line in the nature of an expansion joint, which would show the beginning of the coping of the pool with tiles then to the waters edge.
As a consequence of laying the tiles over the expansion joints between the slab and the pool coping and with movement of the slab over the years, the adhesion between the tile and the slab/coping deteriorated to the point where tiles began lifting.
10. Another problem with the tiled concourse area is that there is not sufficient fall to the rear of the pool area which then causes water to pond. In heavy rain events the water does not drain. Although there are drainage outlets the fall was not sufficient to cause the water to drain away efficiently through these drains. The water does eventually dissipate.
11. In 2009 the Applicant contacted the Authority to seek advice about these problems. On advice a formal complaint was lodged with the Authority and Mr Peter Lack, a building inspector employed by the Authority, attended the premises for an inspection. On the initial inspection, Mr Lack did not consider there were any “substantial defects” and as the director of the respondent building company was overseas, decided not to issue a direction to rectify to the builder.
12. After some further complaints, it seems, Mr Lack returned to Cashmere property in the company of Mr Clayton, another BSA inspector, to undertake another inspection. At that time, there were more tiles becoming detached from around the pool area and he noticed water ponding at the rear walls. A building inspection report was prepared[5] and a Direction to Rectify was issued to the builder. Both Mr Lack and Mr Clayton say that the reason the direction to rectify was issued on the second occasion was due to safety issues as a consequence of the tiles lifting and did not relate to any structural defect in the slab under the tiles. It seems clear to me, and I find consistent with the evidence of Mr Clayton, that the cause of the tiles lifting is as a consequence of the failure to install a control joint in the tiles. The water ponding is as a result of a failure to create proper falls to allow the water to drain away from the rear retaining wall. To be clear there is no evidence to suggest that the concrete slab under the tiles lacks structural integrity.
[5] Exhibit 4 “BNC-2”
13. The builder failed to comply with the Direction to Rectify and the complaint was then referred to the Authority’s insurance division for the purposes of processing a claim on the policy for the costs of rectification. On 7 December 2009 the Authority wrote to the Applicant to advise that it was the Authority’s decision to disallow the claim under the Statutory Insurance Scheme on the basis that the work the subject of the application to rectify was not “primary building work” within the definition of the Queensland Building Services Authority Regulations (“the Regulations”) but rather “associated building work” to which the insurance policy did not respond.
14. The Applicants then filed an application to review that decision.[6]
[6] Statement of reasons attachment 5
The definitions
15. The relevant insurance policy[7] makes provision for defective construction. Clause 2.1 of the policy states:-
a)Subject to the terms of this policy, BSA agrees to pay the cost of rectifying defects in residential construction work that is primary building work, other than for defects from subsidence or settlement referred to in part 3 of this policy.
[7] Statement of reasons attachment 1
16. “Primary building work” is defined in the Regulations, division 2 section 11 as follows:-
(1) Subject to subsection (3), for section 10(a), building work mentioned in subsection (2) is primary building work if it is—
(a) carried out by a building contractor; and
(b) for a residence or a related roofed building; and
(c) of a value of more than $3300
(2) For subsection (1), the following is the building work—
(a) construction of the residence or related roofed building;
(b) building work that affects the structural performance of the residence or related roofed building;
(c) building work for relocation or replacement of a roof, wall, internal partition, floor or foundation;
(d) building work for replacement or refitting of fixtures or fittings in a bathroom or kitchen in the residence or related roofed building;
(e) building work for an unenclosed, elevated platform or verandah, including a deck, attached to a residence;
(f) building work that increases the covered floor area of the residence or related roofed building;
(g) building work for installation or repair of the primary water supply to, or sewerage or drainage for, the residence or related roofed building.
17. The Authority contends that the tiling work from the perimeter of the roof area, that is say the gutter of the house to the back boundary is associated building work within the meaning of that definition in section 12 of the regulations. It includes:-
(a) fencing;
(b) landscaping;
(c) painting;
(d) installation, renovation, repair or replacement of any of the following—
(i) air conditioning;
(ii) driveways, paths or roads;
(iii) units for heating water regardless of the source of energy for heating, and including units for heating swimming pools;
(iv) refrigeration;
(v) roller shades and shutter screens;
(vi) security doors and grills;
(vii) solar power units and associated electrical components;
(viii) swimming pools, or spas that are not part of a bathroom;
(ix) water tanks that are not part of a primary water supply for the residence or related roofed building.
18. The issue for determination is whether the building work the subject of the application falls within the definition of primary building work or alternatively it is not associated building work, or alternatively is not primary building work then the policy does not respond to the claim.
Discussion
19. It was conceded by Mr Lack that any defective work associated with the tiles from a notional line perpendicular from the edge of the gutter and back to the house footing, would be primary building work and covered by the policy even though this area is described on the plans as the external slab and part of the pool area paving. Beyond that notional line, that is to the swimming pool coping, the Authority contends that the tiling work changes from being “primary building work” to “associated building work”. If an expansion joint had in fact been installed in the tiled area at the pool coping, anything beyond that line would clearly be part of swimming pool and would fall within the definition of associated building work.
20. The Authority also submits that the concourse area is a path within the definition. I was referred to the various definitions of “path”[8] but in my view these definitions do not properly describe the tiled area. If it is a path it is a path going nowhere. Such a proposition is not maintainable in my view because clearly it is an open usable space for the benefit of the occupants of the house.
[8] Compact Oxford Dictionary: “a way or track laid down for walking or made by continual treading” and the Meriam-Webster: 1. a trodden way; 2. a trackspeciall constructed for a particular area.
21. The only part of the definition of associated building work the tiled surface might fall within is as part of the swimming pool or landscaping work associated with the swimming pool. This arises because of the notation on the plan that the slab is part of the pool area paving. But, the reference to swimming pool in the definition must only mean the pool itself consisting of the shell, internal finish and the external finish on the coping. In other words, the work which constitutes the swimming pool itself.
22. To determine whether the tiled slab is “primary building work” within the meaning of that term in section 11 of the regulations the starting is not only a consideration of the meaning of “residence”, as urged by the Authority but also the meaning of the phase “construction of the residence.”. Regulation 9 defines residence as meaning:-
“A building or part of the building fixed to land and designed to be used for residential purposes.”
23. The Applicant submits that the tiled slab forms part of the residence because it is a continuous surface from under the roofed area abutting the house footing to the surrounds of the pool. As I have already indicated the Authority concedes that the section of the tiled surface which is under the eave is part of the residence. The tiled slab was constructed as part of the “construction of the residence” as is evident by the plans and was included in the contract price for the construction of the residence. As Mrs Jones states:
The (subject) area is clearly attached to the house, was poured in concrete as a single pour, and overlaid with the same tiles. The house and the attached area containing the defects were all constructed by the builder during the constructions process and paid in various stages in accordance with BSA recommendations. There is no line or change to the type of texture of the tiled concrete from the edge of the house to the edge of an in-ground pool. The builder placed the entire rear verandah/deck/patio as part of his construction of the residence.[9]
[9] Statement of Mrs Jones filed 20 January 2010 page 2 para (2)(a)
24. Although the construction plans only show tiles under the eaves, the fact is that the contract provided that the builder, when constructing this tiled surface, continued it out to the pool. It therefore does seem somewhat artificial to contend that the continuous surface starts off as primary building work and then at some notional line becomes associated building work, unless it clearly falls within the definition of associated building work. The tiled surface area around the pool is quite obviously, in my view, part of living space of the residence.
25. The Authority submits that when considering the phrase “construction of a residence” I should confine the consideration to the definition of “residence”. Residence is defined in section 9 of the regulations and:
“means a building or part of a building fixed to land and designed to be used for residential purposes”
26. The Authority then goes on to submit that :
The key to the definition is found in the use of the term “residential purposes”. If a “building” is not for “residential purposes” it cannot be a “residence” for the purposes of the Regulation.
“Residential purposes” is not relevantly defined, however its (sic) is respectfully submitted that the Tribunal ought to notice that this term appears to stand in contrast to the phrase “a purpose related to the use of the residence” which is used to define the term “related roofed building” in section 9
It is submitted that the Tribunal should opt for a narrow definition of “residential purposes” which limits such purposes to instances where a building provides accommodation of some kind. Such a restriction of “residential” to accommodation itself is supported by the general interpretation of the word “residential”
27. Such a construction, as urged by the Authority, attempts to narrow further what is meant by “primary building word” and broaden what is meant by “associated building work”. The purpose of both sections 11 and 12 is to identify the work that falls within the respective definitions, although they could not be said to be exclusive.
28. Therefore to confine the building work to the structure of the residence only in isolation, rather than the “construction of the residence” as a whole potentially fails to include building work that might be undertaken pursuant to a residential building contract that does not fall within the definition of associated building work. The tiled slab does not fall within the definition of any of the work set out in section 12 (a) – (d) inclusive. So, that then begs the question if it is not associated building work what is it?
29. When viewed objectively, the tiled area is a usable living space of the residence, and was included in the “construction of the residence” and therefore is part of the building, within the definition of “residence” and must be primary building work within the definition because it clearly is not associated building work.
30. In coming to this conclusion I also bear in mind that the insurance policy is one created by statute and although the general principles of construing the policy against the Insurer has limited application, the statute is plainly remedial in nature and the intent of the scheme is to provide protection to homeowners. Therefore the words of the policy ought to be given their ordinary and natural meaning unless the context signifies otherwise.[10]
[10] Ross v Queensland Building Services Authority & Raymond (2006) QCCTB 170 @ paragraph 26.
31. As discussed the tiling work does not fit comfortably with any of the descriptions of work that is defined as “associated building work”. As the tiling was part of the construction of the residence it fits more comfortably with primary building work and the insured should get the benefit of such a construction when the policy is construed in conjunction with the regulations.
32. There is one final matter, it seems to be suggested by the applicant that the defects are structural in nature. In this respect I agree with the submissions of the Authority that there is no evidence that he slab itself is defective. Neither Mr Lack or Mr Clayton expressed any support for such a contention. In fact Mr Clayton said:
“There is nothing in the material provided by the applicant that makes me think that there is some wider problem with the slab upon which the tiles were laid”
33. Consequently, the insurance claim is to be limited to the work the subject of the direction to rectify issued to Didsbury Pty Ltd.
34. As I have come to the conclusion that the defective work falls within the definition of “primary building work” the application must be allowed and the decision of the Authority set aside.
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