Leigh Kershaw Homes Pty Ltd v Queensland Building and Construction Commission
[2015] QCAT 221
•17 June 2015
| CITATION: | Leigh Kershaw Homes Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 221 |
| PARTIES: | Leigh Kershaw Homes Pty Ltd (Applicant) |
| v | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | GAR103-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 5 March 2014, 3 September 2014 and 26 November 2014 Written Submissions 23 December 2014 and 27 January 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Howard |
| DELIVERED ON: | 17 June 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Queensland Building and Construction Commission to issue a direction to rectify to Leigh Kershaw Homes Pty Ltd is set aside. 2. The following decision is substituted: (i) A direction to rectify is not issued. | ||
| CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW – DIRECTION TO RECTIFY BUILDING WORK – whether direction to rectify given within legislative time frame allowed without extension of time by Tribunal – where builder complied with plans and specifications for building work – where inconsistency between requirements of the Building Code of Australia and the Australian Standards – where slab edge dampness – whether defective work – where homeowners have contributed to soil wetness – whether unfair to issue direction to rectify Building Act 1975 (Qld) s 12, s 14 | ||
APPEARANCES:
| APPLICANT: | Mr Leigh Kershaw, director of Leigh Kershaw Homes Pty Ltd |
| RESPONDENT: | Ms Cheridan Farthing, in-house lawyer, appeared for the Queensland Building and Construction Commission |
REASONS FOR DECISION
On 25 January 2013, the Queensland Building and Construction Commission (‘QBCC’) decided to issue a direction to rectify (‘DTR’) to Leigh Kershaw Homes Pty Ltd (‘LKH’) for domestic building work at 38 North Bank Court, Helensvale. The dwelling is built in a canal estate subdivision and the site backs onto the Coomera River. LKH has applied to the Tribunal for review of the decision to issue the DTR.
The DTR requires rectification of the following:
(1)The dwelling does not comply with the BCA P2.2.3 in that there is evidence of ‘undue dampness or deterioration of building elements’ to the internal area of the dwelling.-Pertains to item 1 on the BSA complaint form
The Building Code of Australia (BCA) in P2.2.3 sets out a performance requirement that moisture from the ground must be prevented from causing unhealthy or dangerous conditions, or loss of amenity for occupants; and undue dampness or deterioration of building elements.[1]
[1]Exhibit 13, pages 60-61.
The complaint by the homeowners[2] to the QBCC said that when they removed some tiles from the edge of a window, water was observed under the tiles and, on further inspection, rotting window sills, architraves and/or mould were discovered. The homeowner said that several rooms were affected: the family/dining room (east window); family lounge room north window; dining room architrave on sliding unit to alfresco; west study window; two south windows in front bedroom; and one of the two east windows in the formal lounge.[3]
[2]Exhibit 3, Attachment SOR 2.
[3]Subsequently, Mr Stephen Wildbur has provided a statement in these proceedings in respect of the complaint and other issues: Exhibit 14.
The building work was undertaken pursuant to a contract between LKH and the homeowners dated 1 November 2005. LKH says the work was completed under the contract on 28 September 2006. The QBCC relies on a notice of practical completion to assert that it was completed on 27 October 2006. If LKH is correct about the completion date, then the decision to issue the DTR was made outside of the time for the giving of a DTR (unless the Tribunal has made an order extending the time for the QBCC to give a direction, and in this case, there has not been an application for extension of time) under s 72(8) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
The material filed by the parties was initially scant. Mr Leigh Kershaw, who is a builder and the director of LKH, had filed a brief statement. The QBCC had provided the documents in its possession and a brief statement and report from a building inspector, Mr Stephen Ferguson. There was no statement from the homeowner.
On the first day of hearing on 5 March 2014, I allowed Mr Kershaw to give oral evidence about factors which, in his opinion as an experienced builder, were responsible for the issues identified in the homeowners’ complaint because his witness statement did not set those matters out. In summary, while acknowledging that he had not done investigations, he explained that the homeowners have constructed various site features which may be responsible. He described a pond with an area of some 20 square metres with a concrete shell (constructed at about the time LKH’s building works were being completed) by the homeowners abutting the foundations of the house. Also, he explained that he believed that a retaining wall of some 1.4 metres in height built by the homeowners 300 mm behind the newly constructed swimming pool shell, contrary to engineering recommendations and specifications may have caused problems. Finally, gardens built by the homeowners immediately adjacent to the house, if watered extensively, may have caused the issues.
The QBCC was taken by surprise. It requested an adjournment to consider and investigate the issues raised by Mr Kershaw’s oral evidence. To afford procedural fairness to the QBCC, I adjourned the matter for further hearing on a date to be fixed. As it transpired there were then lengthy delays while both parties obtained expert (engineer) reports.
Later material from LKH also raised the possible contribution of extensive external tiling by the homeowners, including tiling over of drain outlets and the removal of some other drainage.[4] Mr Kershaw points out (and it not controversial) that the features constructed by the homeowners extend around much of the perimeter of the dwelling.
[4]Exhibit 9, in particular pages 2-3.
The engineering experts agree that what is presently on site does not meet the requirements of BCA P2.2.3. They agree that there are signs of slab edge dampness (‘SED’) in a number of locations around the perimeter of the building. They also agree on the causes of the problem. The main problem is that the surface of the perimeter footing around the dwelling is sitting in wet soil and capillary action is drawing the moisture through the footing to the surface edge of the slab. As discussed later, they agree that there are five contributing factors. One of those factors is the termination of the vapour barrier on the inside edge of the footings; another is poor site drainage.
The evidence concluded on 26 November 2014. However, both parties requested some significant time to provide written submissions. These were not finalised until February 2015 when the QBCC advised that it did not intend to provide any submissions in reply.
The review process and issues for determination in the review
The purpose of the Tribunal’s review of the QBCC’s decision is to produce the correct and preferable decision.[5] Effectively, the Tribunal stands in the shoes of the decision-maker and makes the decision afresh.
[5]QCAT Act s 20.
First, I must determine, whether the DTR was given within the statutory time frame of six years and three months from the date the building work was completed.[6]
[6]QBCC Act s 72(8).
If so, a DTR may (as an exercise of discretion) issue for building work, which is defective, to the person who carried out the building work.[7] In deciding whether to give a DTR, all reasonably relevant circumstances may be taken into account.[8] A DTR is not required to be issued if, in the circumstances, it would be unfair, to the person to give the DTR.[9] ‘Defective’ is defined to include faulty or unsatisfactory.[10]
[7]Ibid, s 72(1).
[8]Ibid, s 72(2).
[9]Ibid, s 72(14).
[10]Ibid, Schedule 2, ‘defective’.
Issue 1: Was the DTR given in time?
As discussed earlier, a DTR cannot be given more than six years and three months from the time the building work was completed (unless the Tribunal gives an extension of time).
Under the contract, practical completion was due within 150 days of the commencement. It is uncontroversial that there was a significant extension of time claimed by the builder. Mr Kershaw says that this is because the homeowners delayed in giving instructions required to be given by them under the contract for their own reasons and purposes. He says that the claim for practical completion was not paid until 18 November 2006, some 383 days after the date of the contract.
The contract specifies[11] that practical completion is reached when the works have been completed in accordance with the contract and all relevant statutory requirements met apart from minor defects and omissions and are reasonably suitable for habitation. Under the contract, the builder must give the owner a notice of practical completion stating the date of practical completion in the builder’s opinion, and the final claim.[12]
[11]Exhibit 3, p 32.
[12]Exhibit 3, p 52.
A final certificate was issued by the certifier engaged for the construction on 25 September 2006.[13] Leigh Kershaw says that LKH initially issued a notice of practical completion on about 29 September 2006 and provided it to the homeowners with a copy of the final certificate of inspection.[14] Mr Wildbur, one of the homeowners, says the notice of practical completion was received on 8 November 2006, confirming that practical completion was reached on 27 October 2006 (being the date of the progress claim for practical completion).[15] He says he does not have the earlier documents relied upon by Mr Kershaw.
[13]Exhibit 9, Attachment LKH 13.
[14]Exhibit 2, at [14] and Attachment O. Although [14] states 28 September 2006, the letter at Attachment O enclosing the progress claim for practical completion is dated 29 September 2006.
[15]Exhibit 14, at [5] and [6], and Attachments SJW-2 and SJW-3.
Although he acknowledges the later documents, Mr Kershaw says that after LKH issued the notice on 29 September 2006, there were disagreements about minor defects and about variations payable. Mr Kershaw says that after some negotiation, agreement was reached, from his perspective on a commercial basis, so that LKH would be paid its final stage payment. Although Mr Wildbur asserts that the works under the contract remained unfinished at 8 November 2006 (because blinds had not been installed) and the homeowners were unable to move into the home until early December, Mr Kershaw asserts that the homeowners delayed throughout the contract for their own reasons (while they completed other building works at the site which were not covered by the contract). He submits the home was reasonably fit for habitation when the first certificate issued in September. That said, he acknowledged some work done after September.
Mr Wildbur does not say he did not receive the earlier documents, he says the homeowners do not have them. I accept Mr Kershaw’s uncontested evidence that LKH gave the letter of 29 September 2006, attaching the claim for practical completion to the homeowners. However, the letter is not a notice (as required by the contract) in which the builder stated when in his opinion, practical completion was reached. It may be contrasted with the letter of 8 November which clearly states as follows:
Your house has reached practical completion as per your contract on 27th October 2006.[16]
[16]Exhibit 14, Attachment SJW-3.
It is uncontroversial that the final certificate issued on 25 September 2006. However, it is also uncontroversial that there were further works done, as well as discussions and negotiations, after the letter of 29 September 2006. I accept that these occurred as Mr Kershaw says. The evidence presented does not suggest, however, that a notice of practical completion as specifically required under the contract was given by LKH to the homeowners until 8 November 2006. When the notice of practical completion was then issued by LKH on 8 November 2006, it nominated 27 October 2006 as the date of practical completion. I am satisfied that the date nominated as the date of practical completion in LKH’s contemporaneously prepared documentation is the most compelling evidence about the date of practical completion.
Accordingly, I find that that 27 October 2006 was the date of practical completion. Therefore, the DTR was issued (just) within the prescribed six years and three month period after the date of completion of the building work.
Issue 2: Should a DTR be issued?
It is uncontroversial that the dwelling is building work. It is also uncontroversial that LKH built the dwelling. However, it is also acknowledged that the homeowners have built (or had built) the various landscaping features identified by Mr Kershaw.
Is the building work defective?
Mr Kershaw acknowledges that the vapour barrier terminates at the internal edge of the perimeter footing for the house. Soil Test Australia Engineers (‘STA’) prepared the Foundation Design Report,[17] including design of the slab, the footings and site drainage. Mr Kershaw says that at the time of construction, the performance requirements were met. In particular, he relies upon BCA 2005 in 3.2.0 which specifies that performance requirements including P2.2.3 are met for footings and slabs if installed in accordance with AS2870.[18]
[17]Exhibit 6.
[18]Exhibit 18.
He says essentially that STA and the certifier, Total Building Consult (‘TBC’), have extensive and lengthy experience in deciding whether, in the local conditions, the vapour barrier could be terminated at the internal edge.[19] He says the Foundation Design Report specifically sets out the design criteria considered by STA, including the BCA.[20]
[19]Exhibit 9, p 16.
[20]Exhibit 6, p 3.
The inspection certificates of STA for the footings and slab were provided.[21] The footing certificate (dated 21 November 2005)[22] specifically states that the edge beam footing was carried out in accordance with STA’s Foundation Design Report for the site. The slab certificate (dated 24 November 2005) includes as follows, ‘vapour barrier in place and taped’ and states that it complies with the Design Report[23] He says that if the vapour barrier had been required to be wrapped around the footings and terminate at the external ground level the design report and inspection certificates would have indicated that this was so.
[21]Exhibit 9, Attachments LKH 16 and 17.
[22]Exhibit 9, Attachments LKH 16.
[23]Exhibit 9, Attachment LKH 17.
Mr Kershaw relies upon the homeowner’s information about care of the slab set out in the STA report.[24] He considers that the foundations were not designed for the circumstances which the homeowners have put in place. That is, the pond against the footings; the raised garden beds; and the un-engineered retaining wall; and tiling over drains and alterations to the drainage installed by LKH. He considers that the drainage and footing design may have been entirely different if these features were known at the time of the design. He also points out that the damage to building components is limited and located in only some locations around the perimeter.
[24]Exhibit 9, Attachment LKH9.
Mr Steve Morley from TBC says he considers the footing and slab design prepared by STA ‘typical and appropriate’ for the site, including the vapour barrier termination point. He says it is typical of the majority of footing and slab designs for domestic construction in Queensland.[25]
[25]Exhibit 12.
Mr Wildbur is a carpenter, although he says he ‘hasn’t really used it for 10 years because’ he has been teaching. He acknowledges building the pond against the footings. He did not obtain Council or structural approval for it. He says that it was not built until 2009 (Not shortly after construction of the house as Mr Kershaw had indicated).[26] However, it seems apparent from a photograph relied upon by LKH[27] that the pond was excavated much earlier than 2009. It seems compelling that the excavation occurred by late 2006, and I so find, before LKH’s representatives left the site following completion of the works. There is no evidence which suggests an LKH representative would have been present at a later time to take the photograph. The homeowners also built (or had built) a retaining wall 1.4 metres high during construction. It was not engineered and the final certificate for the dwelling refers to its lack of approval.
[26]Exhibit 14, at [36]-[41].
[27]Exhibit 9, at [B(3)], and Attachment 11.
Mr Wildbur has more recently built a deck over the pond structure (although the pond has not been filled in) which he also acknowledges does not have Council approval. The roof structure over it, which was constructed without a gutter, directed water to the pond area. Mr Wildbur acknowledged tiling over three drains in the course of the external tiling works at the site. He acknowledged the garden beds adjacent to the house.
Mr Ferguson, a building inspector, prepared a building report and gave evidence for the QBCC.[28] In his oral evidence, he said that he considered the homeowner had altered the components of the dwelling so significantly in the area adjacent to where the pond had been that the builder could no longer be considered to have any responsibility in that area in respect of the window, door or flashings. He acknowledged that the homeowner had told him that when he removed floor tiles in that area that there moisture a ‘little way’ into the slab. Mr Ferguson did not himself see it.
[28]Exhibit 4.
When he did his inspection he concentrated his assessment in other areas around the dwelling because of his view of the changes. He conceded that in hindsight, the pond constructed and filled with water up against the footings, may have been responsible for drawing moisture up into the slab and tiles in that area. However, when he looked, he found evidence in some other areas of moisture to the base of the skirtings.
The expert engineering evidence
Mr John Van de Hoef and Mr Stephane Rebibou, both engineers, inspected the issues at the premises. They each prepared a report.[29] They subsequently prepared a joint report at or following the experts conclave convened by the Tribunal. In accordance with Practice Direction No 4 of 2009, their joint report effectively became their statement of evidence. They also gave evidence concurrently at the hearing. The Tribunal and the parties asked questions to clarify matters in or arising from the joint report.
[29]Exhibits 13 and 15. Mr Van de Hoef’s report was admitted as Exhibit 13 on 3 September 2014, before Mr Rebibou had been engaged. The joint expert report (Exhibit 17) subsequently became their joint statement of evidence under PD 4/2009, but having accepted Mr Van de Hoef’s report as an Exhibit, I also accepted Mr Rebibou’s report as Exhibit 15 on 26 November 2014.
The experts agree that in a number of locations around the building perimeter there are signs of SED, including water damage to the window reveals and discolouration on the slab. They agree also that the relevant BCA performance requirements P2.2.3 are not currently being met by ‘what is present on site’.[30] It requires that ground moisture be prevented from causing, among other things, undue dampness or deterioration of building elements. They agree that rectification works are warranted.[31] The experts agree that rectification will be difficult because of the extensive hard-edge tiling and paths.[32]
[30]Exhibit 17 Part D.
[31]Exhibit 17 Part D.
[32]Exhibit 17, Part F.
The experts agree that the problem is caused by a number of factors, although they were unable to specifically indicate proportional contributions. They agree that the primary problem is that the perimeter footing around the dwelling has parts of its surface sitting in wet soil, and that capillary action is drawing the soil moisture through the footing to the nearest internal surface where evaporation can occur. That is, it is being drawn to the surface edge of the slab.
They consider that there are five contributing factors. The first factor is the termination point of the vapour barrier: it is terminated on the inside edge of the footing. They agree that this practice is relatively common in south-east Queensland. Mr Van de Hoef says that very few houses with a vapour barrier around the footing develop SED. Mr Rebibou pointed out that not all houses with a footing edge termination of the vapour barrier have SED.
Secondly, the site drainage is said to be poor in a number of locations, contributing to the wetness of the soil. Thirdly, the soil characteristics (salinity and clay content) contribute. Fourthly, the concrete density is said to contribute. Lastly, the as-constructed slab height relative to the finished ground surface also contributes to the issue because the less difference there is between the two, the easier it is for moisture to travel.
Although the landscaping features have contributed to the wetness of the soil, the experts consider the problem is generalised and more complex. They do not consider it is attributable to specific landscaping features. That said, they both accepted that anything which increases moisture content and/or affects site drainage contributes. Mr Van de Hoef said it would not be ‘so critical’, if the footings were wrapped in the vapour barrier. Mr Rebibou said that the pond which acts as a sump, the roof without a gutter built over the deck, and the built-up garden beds all increase the moisture content.
The vapour barrier
The experts agree that it is ‘relatively’ common practice in South East Queensland for vapour barriers to terminate at the internal edge of the edge footings. They agree that Australian Standard (AS) 2870-1996 was current at the time of construction. It provided that the vapour barrier may terminate at the internal face of the external beams, ‘where justified by satisfactory local experience’, although the normal termination point is at the outer edge of the footing at ground surface level.[33] Again they both acknowledge that BCA 2004 contained effectively the same requirements. However, they agree that BCA 2005 did not refer to an option to terminate the vapour barrier at a point internal to the edge footings, it was required to wrap around the perimeter footing and terminate at ground level. Apparently inconsistently, AS2870-2011 (which remains current) contains the same detail as AS2870-1996.
[33]Exhibit 17.
The experts were uncertain when BCA 2005 came into effect in Queensland. They agree that Building Approval (BA) indicates the official start of the project. Mr Van de Hoef explained that the building certifier must enforce the requirements enforceable at the date of the BA. He says the certifier marks any particular requirements on the approved drawings. Mr Rebibou suggested it was not realistic for certifiers to note all possible changes to the BCA in recent months before an approval is considered. He says that the certifier would assume that every professional in the chain leading to the application for BA has undertaken their job.
They agree (and I find on the evidence) that the foundation design report from STA was dated 22 July 2005;[34] and BA was obtained on 8 November 2005.[35] Further, I find that the edge beam footing and slab inspections occurred on 21 and 24 November 2005 respectively.[36] In the foundation design report, STA specifies that the ‘design criteria’ include the BCA. Mr Rebibou considers this means STA used the criteria of the BCA in their design. Mr Van de Hoef seemed to suggest it meant that LKH was required to apply the BCA criteria. The reference to the design criteria is preceded by the statement ‘This foundation report has been prepared by reference to:’. I am satisfied that the only logical interpretation of that statement is that STA has prepared the design having regard to the requirements of the BCA.
[34]Exhibit 6.
[35]Exhibit 9, final page, attachment LKH 23 (page unnumbered).
[36]Exhibit 7.
The experts agree that the footing design detail in the report is unclear regarding the extent of the vapour barrier. Exhibit 6 indicates the vapour barrier,[37] but both experts conclude that it is difficult to be sure from the diagram where it was intended to terminate. That said, Mr Van de Hoef conceded that the reference to vapour barrier appeared to point to the underside of the slab but says it is not specified. Mr Rebibou suggested that the detail suggests that the footings do not have to be wrapped in the vapour barrier because the detail appears to stop inside the footing. He says the slab thickening diagram[38] may show greater detail. Mr Van de Hoef disagreed, because he says it is a diagram about slab thickening relevant to plumbing, not the footings. Both said engineering practice would designate the vapour barrier with a dashed line. The relevant diagram in Exhibit 6 which indicates the position of the vapour barrier points to a solid line.
[37]Exhibit 6, p 6 the top diagram on the left hand side.
[38]Ibid, p 7.
The slab inspection certificate notes that the vapour barrier is in place and taped. The edge beam footing certificate makes no reference to the vapour barrier. Mr Van de Hoef considered it difficult to draw any conclusions from this and believes it means only that the construction complied with the design report. Mr Rebibou suggested that he thought the certificates indicated that the vapour barrier stopped inside the footing. This is because the slab certificate scope of works refers to the vapour barrier, but the edge beam footing certificate scope of works does not mention the vapour barrier, which he considers it would have done, if the barrier was to be wrapped around the footings. He therefore considers the footings were not required to be wrapped in the vapour barrier. He says it would be unreasonable to suggest that STA were confused as to what their own specifications required. Neither expert suggests any problem with the footing design.
I accept that there is a lack of diagrammatic clarity about the termination point of the vapour barrier on the design report at Exhibit 6. However, I find Mr Rebibou’s explanation about the interpretation of the design report, read together with the slab and footing inspection certificates, logical and more compelling than Mr Van de Hoef’s. STA well knew what their own specifications required. If the vapour barrier had been required to wrap around the footings (and did not do so), the scope of works on the footings certificate would have referred to it. (Indeed, it is reasonable to infer that it would not have been forthcoming in the absence of the vapour barrier doing so). Instead, there is no reference to it on the footing certificate, but the slab certificate refers to the vapour barrier as ‘in place and taped’ to the satisfaction of STA. On this basis, I find that LKH constructed the vapour barrier terminating internally to the footing as required by the STA design report.
Neither of the experts was aware of any evidence which clearly states that the adopted vapour barrier termination point was selected based on a satisfactory local experience assessment having been undertaken.
As discussed earlier, Mr Kershaw relies upon the extensive local experience of STA and TBC in designing and certifying the footings respectively. I accept that as a builder, Mr Kershaw himself was not qualified to design the footings, slab and vapour barrier. I am satisfied that he relied upon the expertise of STA in designing them and TBC in certifying them with the benefit of their extensive local knowledge, as he was entitled, and indeed, required to do. When designing them, STA was aware that site drainage was poor.[39] It is reasonable to infer that their extensive local practice qualified them to assess whether internal termination of the vapour barrier was satisfactory having regard to the conditions on site. Mr Morley of TBC, a certifier with considerable local experience, gave evidence that he still considers the design appropriate.
[39]Exhibit 6, page 1.
Site drainage
The experts agree that site drainage is poor which contributes to the wetness of the soil. But, their joint report states, the problem with the perimeter is generalised and more complex and cannot be attributed to any specific individual localised site features, except in so far as it contributes to the localised soil wetness. That said, their evidence is clear that the completed landscaping features constructed by the homeowners have contributed to the wetness of the soil.
Concrete density
Concrete density was not tested. However, the experts agree that the porosity of the concrete density must be a factor as it makes it easier for moisture to travel.
As-constructed slab height
They agree that the as-constructed slab height relative to the external ground contributes because the lower the slab is, the easier it is for the moisture to be drawn up. The house slab in this case is reasonably low to the ground.
Mr Kershaw’s evidence is that because of the homeowners extensive tiling, the levels have been altered by them.
Which requirements prevail: BCA and AS?
The BCA applicable at any given time is the edition current at the relevant time.[40] Building work complies with the BCA only if it complies with all relevant performance requirements under the BCA.[41] The BCA 2005 applied in Queensland from 1 May 2005.[42]
[40]Building Act 1975 (Qld) s 12.
[41]Ibid, s 14(2). A building solution is achieved for a performance requirement only by complying with a deemed to satisfy provision of the BCA for the performance requirement; or an alternative solution that complies with the requirement or is shown to be at least equivalent to it; or a combination of both of these: Ss 14(3)-(4).
[42]Building Regulation Australia, Volume 2 Building Code of Australia, Volume Two Class 1 and Class 10 Buildings Housing Provisions online service accessed via LexisNexis on 18 May 2015.
The BCA 2004 provides that a vapour barrier may terminate on the inside face of the footing with approval of appropriate authority.[43] The BCA 2005 does not. In BCA 2005, 3.2.2.6 and Figure 3.2.2.3 provide that the vapour barrier must wrap around the edge beam footing and terminate at ground level.[44] Inconsistently, the BCA 2005 specifies that performance requirements P2.1 and P2.2.3 are satisfied for footings and slabs if installed in accordance with one of the specified manuals, including AS2870.[45]
[43]Exhibit 13, page 57, Figure 3.2.2.3.
[44]Exhibit 13, pages 65-67, 3.2.2.6(c) and Figure 3.2.2.3.
[45]Exhibit 13, page 64 at 3.2.0.
The BCA 2005 in 1.1.4 sets out that the Housing Provisions (which apply to the subject dwelling) overrule any difference between it and any standard, rule specification or provision in a document listed in Part 1.4.[46] AS2870-1996 is listed in BCA 2005, in Part 1.4.
[46]Exhibit 21, 1.1.4.
Despite the changes made in the BCA 2005, AS2870-1996 (and currently AS 2870-2011) provides for the vapour barrier to terminate at the internal edge of the edge footing, where justified by satisfactory local experience.[47] It therefore contains requirements inconsistent with BCA 2005.
[47]Exhibit 13, pages 53-56.
In summary, quite unsatisfactorily, not only is there an inconsistency between the BCA 2005 and AS2870-1996, there is an internal inconsistency in the BCA 2005. BCA 2005, 3.2.0 specifies that the performance requirements in P2.2.3 are satisfied for footings and slabs if installed in accordance with AS 2870; whereas, BCA 2005, 3.2.2.6 requires otherwise. BCA 2005, 1.1.4, provides for inconsistency between the BCA and the AS to be resolved in favour of the BCA.
If there was no other inconsistency, there might be a reasonable argument that the specific provision in BCA 2005, 3.2.0 (which specifically refers to AS2870) might be construed as overruling the general provision in 1.1.4. However, 3.2.2.6 is cast in mandatory terms and requires the vapour barrier to extend under the edge beam and to finish at ground level. Reading the BCA provisions in context and the clear intention expressed in 1.1.4 for the Housing Provisions of the BCA to overrule any difference in the AS, I have reached the conclusion (consistently with the understanding of the requirements of BCA 2005 in respect of the vapour barrier as expressed by the expert engineers) that the inconsistency must be resolved in favour of the more specific provisions of the BCA in 3.2.2.6. That is, despite the reference in 3.2.0 to satisfying the performance requirements if AS2870 is complied with, the vapour barrier must comply with the specified requirements in BCA 2005 3.2.2.6 and Figure 3.2.2.3.
Is the building work performed by LKH defective?
I am satisfied on the basis of the experts’ evidence that the house slab has signs of SED at a number of locations around the perimeter. Some building elements are suffering decay. I find that the house is not presently meeting the performance requirements of BCA P2.2.3. in that there is currently evidence of undue dampness and deterioration of building elements.
I am also satisfied that LKH built the footings in compliance with the STA design. The design complied with BCA 2004 and AS2870-1996 provided that an assessment was made that the internal termination point of the vapour barrier was justified by satisfactory local experience and/or with the approval of the appropriate local authority. Because I accept that STA and TBC had reasonably extensive local knowledge and experience, I find that it was assessed by STA as satisfactory based on their extensive local experience, and it had the approval of the local authority through the certifier, TBC.
However, BA was obtained for the house on 8 November 2005. When the slab and footings were laid in November 2005, the vapour barrier was required to wrap around the perimeter footing to comply with BCA 2005 irrespective of the provisions of AS2870. This is because there is no option in BCA 2005 for termination of the vapour barrier on the inside edge of the footings, as occurred here. That is so, irrespective that it was considered to be justified by satisfactory local experience and approved by the certifier representing the local authority. Whether or not STA and TBC considered it an appropriate termination point, BCA 2005 still applied.[48]
[48]An engineer is able to formulate and approve an alternative solution if it meets the performance requirements. However, there is no suggestion that this is what occurred here.
That said, it is clear from the evidence that internal termination of the vapour barrier was and remains relatively common practice in south-east Queensland. No doubt this is because of the unsatisfactory state of the BCA. In any event, the practice does not override the requirements of the BCA.
Mr Kershaw impresses as a very decent person and a diligent, experienced and capable builder. I am satisfied that LKH built this house in accordance with the foundation design of the engineers and to the satisfaction of the certifiers concerned. However, once again, that does not override the requirements of the BCA 2005.
I find that the building work is unsatisfactory and accordingly, defective, because the vapour barrier terminates internally, when it was required to terminate at ground level of the external perimeter footing to comply with the BCA 2005 3.2.2.6.
Although the dwelling has signs of SED in a number of perimeter locations and is not currently meeting BCA P2.2.3., I am not satisfied on the evidence that the signs of SED developed or that the current failure to meet BCA P2.2.3 are the result of the identified defective building work (as a result of non-compliance with 3.2.2.6) by LKH for reasons explained below.
Is it unfair in the circumstances to issue a DTR?
The slab and footings were constructed by November 2005. However, the house was not completed until almost November 2006. Had the time frames in the contract been met, it would have been completed many months earlier. Mr Kershaw says, and I accept, that the delays were occasioned by the homeowners. The evidence of the SED did not emerge until late June 2012.[49]
[49]Exhibit 14, paragraph 22.
Accordingly, it appears that the 6 years and 3 month period would have passed by the time the complaint was made had the contract been completed in the specified (150 day) timeframe for completion from the commencement of works in about mid-November 2005 (when construction of the vapour barrier, slab and edge beam footing occurred). As it was, the DTR was issued within days of the expiry of the six years and three month time limit despite the significantly increased time to completion.
Mr Kershaw constructed the slab, footing and vapour barrier as designed by local engineers with substantial local experience and the construction was certified by certifiers with substantial local experience on behalf of the local authority. The unsatisfactory and inconsistent state of the BCA and AS about the termination point of the vapour barrier do not need to be repeated.
The STA Report, included information for the homeowners about site maintenance upon completion of the house.[50] The recommendations include the following:
[50]Exhibit 6, page 4 Site Drainage.
The performance of the footings and/or slab is largely dependent upon a responsible approach by the builder and the owner/occupant towards vegetation and site drainage. …..
…
·Water must not be permitted to pond in or around footings.
·Garden Beds adjacent to the house should be avoided.
·The development of gardens should not interfere with effective site drainage.
·Moderated watering of the garden is preferred to indiscriminate neglect and/or irregular saturation.
·Plumbing leaks and in particular damaged storm water pipes should be repaired promptly.
·Grated drain inlets are to be positioned under exterior taps which are located adjacent to the residence.
The previously mentioned restrictions may seem onerous for new home owners, however the lack of site maintenance on a reactive clay site can cause damage to the house. …
…
OTHER STRUCTURES
Excavations, retaining walls, swimming pools and other structures which are built near the proposed building after its completion may change the soil conditions.[51]
[51]Emphasis added by me.
I find that the homeowners acted in disregard of the maintenance responsibilities set out. This is somewhat surprising as Mr Wildbur is himself a carpenter. He might therefore be expected to be more conscious than homeowners without experience of the building industry to the potential problems that can be caused by a lack of proper slab maintenance and site drainage. In any event, over the years (during and since the LKH construction), the homeowners have installed a variety of landscaping features (such as the pond against the foundations which I find acts as a sump; tiling over drain holes; building up of garden beds adjacent to the house which covers weep holes; and constructing a 1.4m unapproved retaining wall) and other features (such as a roof without a gutter directing water to the pond area). The relevant various constructions of the homeowners are extensive and extend around much of the perimeter. It is uncontroversial that the features were not engineer designed and do not have certification. I find that the homeowners’ constructions have modified the site conditions surrounding the dwelling since the design and construction of the footings and slab.
Mr Kershaw argues that the footings and slab may have been designed and constructed differently had the homeowners intentions for the site been known. There is force in this. The Slab Care documentation supports this contention in that it stresses the importance of keeping water away from the footings and slab. Mr Ferguson considered the building conditions so changed in the vicinity of the pond that the builder could no longer be responsible for at least some of them. I accept the evidence of Mr Van de Hoef and Mr Rebibou, and I find, that the primary cause of the SED issues is that the perimeter footing around the dwelling has parts of its surface sitting in wet soil. I find also, consistent with their evidence that contributing factors include the termination point of the vapour barrier; the site drainage; soil characteristics; concrete density; and the slab height relative to the finished ground surface.
The engineering experts acknowledge, and I find, that the homeowners’ landscaping features have contributed to the wetness of the soil. Indeed, Mr Van de Hoef stated that the landscaping features would not be ‘so critical’ if the footings were wrapped in the vapour barrier. Although the experts say that the issue is more complex than being caused by specific individual landscaping features, because the features together extend around much of the perimeter of the dwelling, it is reasonable to infer, and I find, that the features installed by the homeowners have therefore (at least) contributed to the development of SED issues.
Further, it is reasonable to infer, and I draw the inference, given the nature of the homeowners’ constructions that, to an extent, site drainage has been affected by features installed by the homeowners, including the construction of the un-engineered and unapproved pond, retaining wall and tiling over drain holes, and consequent effect on drainage and levels. Poor site drainage also contributes to the SED problems. Accordingly, I am satisfied that the homeowners’ actions have also impacted on site drainage by modifying the site, which has contributed to the development of the SED issues.
Further, it took many years after construction for the signs of SED to manifest. It is reasonable to infer from this that the dwelling was meeting the performance requirements set out in BCA P2.2.3 for a significant number of years. Indeed, it may have done so past the time when, had the building work been completed in the timeframe set by the contract, the 6 years 3 months period would have expired before it manifested. Further, even now, the signs of SED exist in only a number of locations around the perimeter and the damage described by the experts to building components in their joint report is limited.
Despite the BCA 2005 requirements, the evidence is that internal termination point of the vapour barrier as used here by LKH is still commonly used in South East Queensland. Mr Van de Hoef suggested that in his experience, SED rarely occurs if the vapour barrier terminates externally to the perimeter footing in compliance with BCA 2005. It is reasonable to infer, and I do, from his statement that SED does occur (albeit relatively infrequently), despite an externally terminating vapour barrier. However, it is uncontroversial that not all houses with an internally terminating vapour barrier develop SED issues.
The experts were unable to indicate proportional contributions of the factors contributing to the perimeter footing sitting in wet soil which resulted in the SED issues. Whether or not the SED issues would have developed if the homeowners had not built the features referred to, or if the vapour barrier had terminated externally is not known. However, as discussed earlier I have found that the homeowners constructions have modified the conditions (since STA designed the footings, slab and vapour barrier and they were constructed by LKH in November 2005), surrounding the footings and the slab in a variety of ways which have (at least) contributed to the wetness of the soil and altered the site drainage, again (at least) contributing to the development of the SED issues which only manifested many years after construction, and even so are limited to some locations around the perimeter.
I am not reasonably satisfied on the available evidence that the SED issues and consequent failure of the dwelling to currently meet BCA P2.2.3 have developed as a result of the technical breach by LKH of the BCA 2005 in terminating the vapour barrier internally.
The objects of the QBCC Act include maintaining proper standards and providing remedies for defective work. However, here the defective work is a technical breach of the BCA. There is no evidence to suggest the SED issues developed until many years after the construction. There is also no suggestion that dwelling failed to meet the performance requirements in BCA P2.2.3 until the SED issues developed many years after construction. It developed in circumstances that the homeowners had substantially changed the site conditions by constructing a variety of unapproved and uncertified landscaping features around the dwelling, in disregard of their maintenance responsibilities. I am not reasonably satisfied that the SED issues developed as a result of LKH’s building work. I consider that directing LKH to remedy the defective work would be fair if LKH is responsible for a current failure of the dwelling to meet the performance requirements. I am not reasonably satisfied on the evidence that LKH is so responsible. I conclude that in all the circumstances it is unfair to issue a DTR to LKH.
Accordingly, I made orders setting aside the decision of the QBCC and do not make a DTR.
Observations
If I am wrong, and if the SED issues and current failure of the dwelling to meet BCA P2.2.3 are the consequence of the identified defective building work by LKH, I would, in any event, consider it unfair to issue a DTR to LKH, because of the changed conditions put in place by the homeowners’ extensive works at the site which have contributed to the wetness of the soil and modified site drainage .
Recommendation
The engineering (and certifier’s) evidence is that the practice of terminating the vapour barrier internally to the footings remains prevalent in South East Queensland. If this is correct, it appears there is significant industry confusion about current vapour barrier requirements. I recommend that consideration be given as a matter of urgency to review in order to overcome the internal inconsistencies in the BCA; the inconsistency between AS2870 and the BCA; and possible industry confusion.
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