JORDANOFF and WA COUNTRY BUILDERS PTY LTD
[2012] WASAT 60
•30 JANUARY 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: JORDANOFF and WA COUNTRY BUILDERS PTY LTD [2012] WASAT 60
MEMBER: MR D AITKEN (MEMBER)
MR P MITTONETTE (SESSIONAL MEMBER)
HEARD: 23 AND 30 JANUARY 2012
DELIVERED : 30 JANUARY 2012
PUBLISHED : 27 MARCH 2012
FILE NO/S: CC 1284 of 2011
BETWEEN: JOSEPH JORDANOFF
Applicant
AND
WA COUNTRY BUILDERS PTY LTD
Respondent
Catchwords:
Building dispute - AS 2870-1996 Australian Standard for Residential Slabs and Footings Construction - Site containing clay - Whether site classification used by builder correct - Whether footing and slab design used by builder adequate - Whether site classification changed when sand pad placed on site
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11(1)(d), s 38
Result:
Preliminary issue determined
The matter complained of has been caused by faulty or unsatisfactory building work by respondent by use of a footing and slab design which is not sufficient for the site
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr H Finn
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant lodged a complaint with the Building Disputes Tribunal, which was referred to the State Administrative Tribunal pursuant to the provisions of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
The complaint concerned cracks in the internal walls and an external wall of a house constructed by the respondent on a site in Dunsborough containing clay.
The Tribunal decided to determine, as a preliminary issue, whether the cracks had been caused by faulty or unsatisfactory building work by the respondent and, if so, what the faulty or unsatisfactory building work was.
The applicant contended that there had been faulty or unsatisfactory building work by the respondent, in that the footing and slab design for the house was wrong for the soil conditions of the site.
The respondent contended that the footing and slab design was suitable for the site and that the cracking was due to site conditions which resulted from earthworks arranged by the developer, for which the builder was not responsible.
It was agreed by the parties that the site of the house was adequately compacted following completion of the earthworks and it was not contended by the applicant that the footing and slab had not been built in accordance with the drawing prepared by the respondent's engineers, Structerre Consulting Chartered Engineers.
Therefore, to decide the preliminary issue the Tribunal needed to decide, firstly, whether the site classification used by the respondent was correct and, secondly, whether the footing and slab design was adequate for that site classification.
The Tribunal decided that the site was properly assessed by the respondent's engineers under AS 28701996 Australian Standard for Residential Slabs and Footings Construction as Class M, but that the footing and slab design prepared by the respondent's engineers did not comply with the requirements of that standard for a Class M site. The Tribunal found that the cracks had been caused by faulty or unsatisfactory building work by the respondent because the respondent had used a footing and slab design which is not sufficient for the site.
In arriving at that decision the Tribunal rejected the contention of the respondent's engineers that, although the footing and slab design was not sufficient for a Class M site, the classification of the site changed from Class M (as originally assessed by the respondent's engineers) to Class S (for which the footing and slab design would be adequate) when a sand pad was placed on the site. That contention was inconsistent with the statements in the site classification certificate and drawings for the footing and slab design which the respondent's engineers had prepared.
Introduction
In July 2006 the applicant, Mr Joseph Jordanoff, purchased a dwelling situated at 8 Moonshine Place, Dunsborough (Mr Jordanoff's house) from Mr Ian Ryniker (the developer).
Mr Jordanoff's house was one of nine dwellings built for the developer by the respondent, WA Country Builders Pty Ltd (the builder) on the piece of land which was known as Lot 60 Moonshine Place, Dunsborough. Those dwellings were designated as Units 1 - 9 before they were allocated street addresses, with Mr Jordanoff's house being Unit 4. The builder says practical completion of Mr Jordanoff's house occurred on 18 October 2005.
Cracks have occurred in a number of internal walls and the external southwest corner of Mr Jordanoff's house. Mr Jordanoff says the cracks became apparent in mid 2009.
Mr Jordanoff gave a preliminary notice to the builder on 8 June 2011, calling on the builder to stabilise the concrete slab and fix the cracks. That did not result in the resolution of the matter and Mr Jordanoff lodged a complaint with the Building Disputes Tribunal (BDT) on 4 July 2011.
Upon the commencement of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) on 29 August 2011 the complaint was transferred from the BDT to the Building Commissioner and, pursuant to s 11(1)(d) of that Act, the Building Commissioner has referred the matter to this Tribunal to be dealt with under s 38 of the Act.
Issue
Pursuant to a directions hearing on 16 November 2011 the matter was listed for the hearing of a preliminary issue in the form of the following question:
Has the matter complained of been caused by faulty or unsatisfactory building work by the builder and if so what was the faulty or unsatisfactory building work?
Evidence
During the hearing the Tribunal heard evidence from three expert witnesses, who are all structural engineers, namely:
•Mr Shane Just of Structerre Consulting Chartered Engineers (Structerre), witness for the builder;
•Mr Roger Pateman of Margaret River Structural Engineering Pty Ltd, witness for Mr Jordanoff; and
•Mr Lee Sidwell of Wood & Grieve Engineers, witness for Mr Jordanoff.
Various documents were provided to the Tribunal prior to the hearing and during the hearing the builder submitted:
1)Certificate of inspection for Mr Jordanoff's house dated 12 March 2004 prepared by Structerre (site assessment certificate); and
2)Drawing 25212 prepared by Structerre, which contained the footing and slab design for all nine dwellings (Drawing 25212).
Contentions
Mr Jordanoff contends that the faulty or unsatisfactory building work by the builder is that the design of the footing and slab of Mr Jordanoff's house was wrong for the soil conditions of the site.
The builder initially contended that the developer had engaged Structerre to provide the site classification and the footing and slab design for the dwellings and, therefore, the builder is not liable if there is any fault with those aspects of the building work.
However, during the hearing Mr Finn, the representative of the builder, informed the Tribunal that he had ascertained that Structerre had, in fact, provided the site classification and the footing and slab design for the builder, not the developer. Mr Finn explained that Mr David Norrish, consulting engineer, initially prepared a site inspection and soil classification report, dated 23 February 2004, for the developer for the purpose of obtaining development approval for the nine dwellings. Mr Finn further explained that after the development approval was obtained, the developer negotiated with the builder regarding a price for the builder to construct the nine dwellings and during those negotiations, to reduce the cost of the development, the developer excluded the earthworks from the contract with the builder and arranged that himself.
In the light of that information, the builder modified its position to contend that the site classification by Structerre is correct and the footing and slab design by Structerre is suitable for that site classification and the cracking is due to site conditions which are not the responsibility of the builder, because the earthworks were arranged by the developer.
Consideration
It is agreed by both parties that the site of Mr Jordanoff's house was adequately compacted following completion of the earthworks. The documents submitted by the builder include a compaction test certificate dated 7 July 2004 by Structerre for the sites of all nine dwellings, including the site of Mr Jordanoff's house. That certificate shows acceptable readings for each site. Although Mr Pateman's initial report dated 7 April 2011 states that he had dug a hole near the south corner of Mr Jordanoff's house and found uncompacted sand in that location, Mr Pateman subsequently agreed in his letter of 10 November 2011 that the compaction levels were acceptable prior to construction.
It is not contended by Mr Jordanoff that the footing and slab of Mr Jordanoff's house has not been built in accordance with the drawing prepared by Structerre.
Therefore, to decide the preliminary issue, the Tribunal needs to answer the following questions:
1)Was the site classification used by the builder correct?
2)Was the footing and slab design used by the builder adequate?
Was the site classification used by the builder correct?
AS 28701996 Australian Standard for Residential Slabs and Footings Construction (AS 2870) designates different site classifications according to the calculated amount of surface movement and standards for footings and slabs for the different classifications, which include:
•Class S designating a site which is slightly reactive and will only experience small ground movements with seasonal moisture variation.
•Class M designating a site which is moderately reactive and will experience moderate ground movements.
•Class P designating a problem site which may require special consideration regarding the footing and slab design, depending on the features of the site which have resulted in that classification.
Mr Pateman contends that the site of Mr Jordanoff's house was incorrectly assessed as Class M and should have been classified as Class P. That contention is made on the basis of an assertion by Mr Pateman that there is a particular soil type in the area of Dunsborough, consisting of clay mixed with sand, which 'collapses' when it is wet, as contrasted with normal clay which 'expands' when it is wet.
Mr Pateman says that this particular type of soil, which he describes as 'gritty clay', is not recognised in any soil laboratory test and can only be identified by someone, such as himself, who has the knowledge and local experience to be able to recognise it. Mr Pateman says that the test which he uses to test for this particular soil type is to dry the soil and then wet it to see if it deteriorates. When asked by the Tribunal if he is aware of any other engineers who have the necessary knowledge and experience to recognise this particular soil type, Mr Pateman named one person who he said 'probably' has that knowledge and experience. When it was pointed out that Mr Norrish, the consulting engineer who prepared the site inspection and soil classification report for the developer, was based in Dunsborough and considered the site to be Class S to Class M, Mr Pateman said that Mr Norrish 'probably' did not recognise the type of soil because he had just arrived in the Dunsborough area at that time.
Mr Pateman agreed that Geotech Soil and Aggregate Laboratory (Geotech) was qualified to conduct the soil analysis and that Structerre was qualified to conduct the site analysis, and that the test results did justify a Class M classification. However, notwithstanding that, Mr Pateman maintained that an experienced person should have identified the particular soil type on site which he says 'collapses' when wet.
The Tribunal does not find Mr Pateman's evidence regarding the particular 'collapsing' soil type to be convincing and, therefore, the Tribunal rejects his contention that the site of Mr Jordanoff's house should therefore have been classified as a Class P site.
Structerre excavated boreholes on the sites of each of the nine dwellings, which included the site of Mr Jordanoff's house. Samples taken from those boreholes were tested by Geotech and Structerre assessed the site classification as Class M using those results. The Tribunal accepts that evidence and has, therefore, decided that the site of Mr Jordanoff's house was properly assessed by Structerre as Class M in accordance with AS 2870.
Was the footing and slab design used by the builder adequate?
The Tribunal found Mr Sidwell to be very convincing as a witness and accepted his evidence that the design in Drawing 25212 does not comply with the requirements of AS 2870 for a Class M site. The reason for that noncompliance is that the thickened internal sections of the slab, or 'beams', which are detailed in section TS1 of Drawing 25212, do not have a sufficient depth. The thickened internal sections of the slab have a depth of 350 millimetres compared to the combined depth of the footing and thickened edge of the slab of 522 millimetres, which consists of the depth of the footing of 350 millimetres and the depth of the thickened edge of the slab of the equivalent of two courses of brickwork, which equates to 172 millimetres.
Mr Just agreed with Mr Sidwell that the footing and slab design was not sufficient for a Class M site, but then contended that because a 600 millimetre sand pad was placed on the site it became a Class S site and the footing and slab design is adequate for that classification. The Tribunal did not accept that contention because the site assessment certificate and Drawing 25212, which were both prepared by Structerre, state that it is a Class M site. The site assessment certificate states that the site has been assessed as a Class M site on completion of the works noted in the certificate being carried out. Those works include a sand pad to be 600 millimetres above cut level. The site assessment certificate recommends the use of the slab and footing detail depicted on Drawing 25212. The footing notes on Drawing 25212 state that the site is assessed to be Class M and that a sand pad is to be provided as per the site assessment certificate.
Mr Sidwell made the very valid point that if Structerre had considered that the classification of the site had changed from Class M to Class S then that change should have been recorded in the documentation regarding the site classification and footing and slab design. Mr Sidwell also made the point that a footing and slab design for a Class S site does not need internal beams, because there is no need in that case for the footing and slab to be constructed as a 'stiffened raft', whereas that is required for a Class M site.
The Tribunal did not find the evidence given by Mr Just to be convincing and did not accept his contention regarding the change of site classification.
The Tribunal therefore decided that the footing and slab design in Drawing 25212 is not sufficient for the site of Mr Jordanoff's house.
Conclusion
The Tribunal has decided that:
1)the site of Mr Jordanoff's house is Class M;
2)the footing and slab design used by the builder is not sufficient for a Class M site;
3)the cracking in the walls shown in the photographs submitted by Mr Jordanoff is greater than is to be expected as a result of normal settlement and has been caused by differential movement of the slab; and
4)the differential movement of the slab has been caused by the failure of the builder to build the footing and slab of Mr Jordanoff's house in accordance with a design suitable for a Class M site, and that constitutes faulty or unsatisfactory building work by the builder.
Order
The Tribunal orders that:
1.On the preliminary issue, 'Has the matter complained of been caused by faulty or unsatisfactory building work by the builder and if so what was the faulty or unsatisfactory building work?', the Tribunal answers 'The matter complained of has been caused by faulty or unsatisfactory building work by the builder, and that faulty or unsatisfactory building work is the use of a footing and slab design which is not sufficient for the site'.
I certify that this and the preceding [37] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR D AITKEN, MEMBER
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