O'Brien v Queensland Building Services Authority
[2012] QCAT 642
| CITATION: | O’Brien v Queensland Building Services Authority [2012] QCAT 642 |
| PARTIES: | John Frank O’Brien (Applicant) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | GAR147-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 11 September, 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ann Fitzpatrick, Member |
| DELIVERED ON: | 24 December, 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | [1] The decisions under review are confirmed except in relation to the following complaints: (a) the misaligned downpipes depicted in photograph “A” to the statement of Mr O’Brien, dated 15 December, 2012; (b) the 90 degree return on the end of the retaining wall, which is not sitting firmly on any base and not locked into the rest of the wall and which is missing a capping stone on top of that part of the wall; (c) the lack of geo-fabric behind the short return wall of the retaining wall; (d) re-enforcing mesh protruding through the concrete path near the down pipe near the front of the house on the left hand side. [2] I set aside the decisions under review to the extent it is concluded that items (a)-(d) in the preceding paragraph are not defective building work for which the builder is responsible and which the builder should be directed rectify. [3] I return the matter for reconsideration to the Queensland Building Services Authority and direct that it attend a further inspection of the applicant’s property for the purpose of determining an appropriate direction to rectify in relation to items (a)-(d) to be carried out by the builder or otherwise at the Queensland Building Service Authority’s direction. |
| CATCHWORDS: | Directions to review defective building work |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self represented |
| RESPONDENT: | Queensland Building Services Authority represented by Ms Emily Roberts, in house Counsel |
REASONS FOR DECISION
The hearing of this matter dealt with a consolidation of three applications for review of decisions of the respondent Queensland Building Services Authority (QBSA). The applications were GAR147-11 filed 31 May 2011 in relation to a QBSA decision made 3 May 2011; GAR006-11 filed 30 May 2011 in relation to the same decision made 3 May 2011 and GAR163-11 filed 16 June 2011, in relation to a QBSA decision made 18 May 2011. The decisions arise out of 2 complaints lodged by the applicant, Mr O’Brien, dated 29 October 2010 and 11 March 2011.
The applicant relied upon his statement of evidence dated 16 September 2011 (exhibit 1), his statement of evidence dated 15 February, 2012 (exhibit 2) and his complaints to the QBSA. I have referred to those documents.
The respondent relied upon the statement of Timothy Lees dated 22 May, 2012 as amended on 11 September, 2012 (exhibit 6), the statement of June Blainey dated 21 May, 2012 (exhibit 7) and the statement of reasons dated 25 August, 2011(exhibit 5). I have referred to those documents.
At the hearing Mr O’Brien gave evidence. Mr Lees and Ms Blainey gave evidence and the QBSA handed up preliminary submissions. After the hearing the parties were given an opportunity to make final written submissions. Mr O’Brien filed his submissions on 26 September, 2012. The QBSA replied by submissions dated 5 October, 2012. The QBSA complains that Mr O’Brien’s submissions raise new matters of evidence and that he has not addressed the orders he seeks.
Role of the Tribunal
This Tribunal is required to stand in the shoes of the QBSA in the exercise of its discretion as to whether a builder should be directed to rectify defective building work.[i]
“Defective” is defined in Schedule 2 of the Queensland Building Services Act 1991 (QBSA Act) as “faulty or unsatisfactory”. “Building work” is defined in Schedule 2 of the QBSA Act to include “(b) the renovation, alteration, extension, improvement or repair of a building;…”
Reference should also be had to the Defects Policy of the Queensland Building Services Board. The QBSA in its submissions extracts the guideline policy:
“…a person who carries out category 1 or 2 defective building work should be required to rectify that building work, unless in the circumstances rectification is unfair or unreasonable.”
The policy goes on to define defective building work in a way which explains the meaning of “faulty or unsatisfactory”:
“Category 1 defective building work means defective building work (other than residential construction work causing subsidence) that is faulty or unsatisfactory because it does one or more of the following:
(a) adversely affects the structural performance of a building;
(b) adversely affects the health or safety of persons residing in or occupying a building;
(c) adversely affects the functional use of a building;
(d) allows water penetration into a building.
Category 2 defective building work means defective building work (other than category 1 defective building work or residential construction work causing subsidence) that is faulty or unsatisfactory because:
(a) it does not meet a reasonable standard of construction or finish expected of a competent holder of a contractor’s licence of the relevant class; or
(b) it has caused a settling in period defect in a new building.
Defective building work means building work that is faulty or unsatisfactory, and includes, for example, work that:
(a) does not comply with the Building Act 1975, Building Code of Australia or an applicable Australian Standard,
(b) involves the use of a manufactured product, and that product has been used, constructed or installed in a way that does not comply with the product manufacturer’s instructions.
Settling in period defect means building work that does not perform at a standard reasonably expected of work carried out by a competent holder of a contractor’s licence of the relevant class.”
Finally, it is relevant to the exercise of the discretion that section 72(14) of the QBSA Act provides that the Authority is not required to give a direction to a person who carried out building work for the rectification of the building work if the Authority is satisfied that, in the circumstances, it would be unfair to the person to give the direction.
Thus, the Tribunal must consider:
·if the work is building work as defined, for which the builder is responsible,
·if it is defective work,
·if there are circumstances which suggest the Tribunal’s discretion should not be exercised in favour of a direction to rectify.
In deciding whether to direct rectification of building work the QBSA or the Tribunal standing in its place is not deciding whether there has been a breach of contract such that the complainant did not receive what he contracted for. It is not deciding if there has been negligence such that breach of a duty of care has caused loss or damage. It is not deciding if there has been a breach of a statutory warranty to perform work with reasonable care and skill.
A complainant such as Mr O’Brien may be entitled to a remedy at law against the builder arising out of the building works, in circumstances where a discretion has been exercised not to direct rectification at a given point in time. The tests are different for the different relief which may be sought by a complainant.
Facts
The applicant entered into a contract with James Goss Building Pty Ltd (the builder) for alterations and additions to his property at 35 Rapur Street, Raceview. The work was necessitated by advice from Booth Engineers & Associates Pty Ltd in relation to footing system movement to the house at 35 Rapur Street. The engineers recommended amongst other things the installation of underpins to stabilise the footing system at a given location and the upgrading of poor drainage conditions so that water flows well away from the building.
The builder was engaged to remove and replace concrete for access to the underpins, bore holes for the underpins, jack the footing, dry pack between the new jacking pads and old footing, remove the existing brick and block retaining wall, construct a new retaining wall, install a new 9 m long stormwater line, remove a concrete pathway, lay a new pathway and install a 100mm stormwater line with fernco joiners and fittings and install 1 yard gully.
The work was conducted between 25 May, 2010 and 13 July, 2010.
On 29 October, 2010, the QBSA received a complaint alleging items of defective building work performed by the builder (the 2010 Complaint). Mr Lees, a building inspector employed by the QBSA, inspected the work and directed that the builder rectify:
(a) a concrete path on the northern side of the house which directed water towards the dwelling;
(b) the front left hand side brick dwarf wall, which had been damaged by the builder and not professionally repaired;
(c) the rear undercover area next to the dwelling, where an expansion joint near the wall was not replaced; and
(d) the retaining wall right hand side of the dwelling which was raked at the west end.
Mr Lees did not consider the remaining items on the 2010 Complaint to be defective items of building work which should be the subject of a direction to rectify.
On 18 May, 2011, the QBSA advised Mr O’Brien that the rectification work had been satisfactorily performed and that the 2010 Complaint would be closed. That decision is the subject of this application for review.
On 11 March, 2011, the QBSA received a further complaint alleging items of defective work by the builder (2011 Complaint).
On 3 May, 2011 the QBSA advised that the items in the 2011 Complaint were not “defective building work” and for this reason the QBSA would not be issuing a direction to rectify to the builder. That decision is the subject of this application for review.
On 10 August, 2011the QBSA received a complaint from Mr O’Brien for alleged defective building work performed by the builder (the second 2011 Complaint).
On 5 September, 2011 the QBSA received a further complaint from Mr O’Brien for alleged defective building work performed by the builder which was intended to replace the second 2011 Complaint (the third 2011 Complaint).
The second and third 2011 Complaints were not the subject of separate decisions, accordingly, there is no application for review of decisions arising out of those complaints, currently before the Tribunal. At the commencement of the hearing the QBSA through its legal representative said that it considered the complaints set out in the second and third 2011 Complaints to have been covered by their decisions the subject of this review and that they agreed to the subject matter of those complaints being dealt with in this application to review. Mr O’Brien did not object.
Complaints of Defective Building Work
The following complaints have been extracted from Mr O’Brien’s statements of evidence:
(a) The retaining wall was not constructed in a tradesman-like manner, or to the manufacturer’s standards, as it was constructed on chitters and existing concrete which would make the wall uneven and unstable.
Mr Lees’ evidence is that the retaining wall appeared to be stable, straight and not falling over and did not appear to be sinking or unstable. He said that the retaining wall was performing. On that basis he did not think the work was defective.
I recognize the expertise of Mr Lees and accept his evidence in this regard. Mr O’Brien did not offer any expert evidence to the contrary.
Finding
On the basis of Mr Lees’ expertise and evidence I find that the retaining wall was not defective building work.
(b) The builder reversed a vehicle into the dwarf wall on the left hand side of the property. The builder attempted to rectify the damage, however, the result is unsatisfactory to Mr O’Brien. Photographs of the dwarf wall attached to Mr O’Brien’s statement reveal bricks of a markedly different colour. Mr O’Brien also complains that acid cleaning of the bricks has affected their texture.
Mr Lees originally directed the builder to rectify his repair work to this wall on the basis that the repair work had not been carried out with due care and attention to detail. Mr Lees was satisfied that the repair work had been rectified.
Mr O’Brien’s evidence was that the same type of bricks as used in the rest of the fence had been used in the repair work, however, the bricks were affected by cement having been rubbed over the texture of the bricks.
Despite making a direction in relation to rectification of the repairs to the wall, the QBSA now says that repair of the wall was not part of the builder’s original scope of work and that it is unable to issue a direction to rectify to the builder.
During the hearing, Ms Blainey gave evidence that repair of the dwarf wall was not building work under the Act as its value fell below $3,300.00. Mr Lees says that neither the colour nor the texture of the dwarf brick wall is defective building work.
Finding
I find that repair of the damaged dwarf wall is not work within the scope of the original contract. I find that it is not building work, as defined by the QBSA Act because by section 5(1)(b) of the Queensland Building Services Authority Regulation 2003, the work is not building work because it has a value of $3,300.00 or less.
I rely on the evidence of Ms Blainey as to the value of the work, which was not challenged by Mr O’Brien.
(c) The end of the right hand side retaining wall had not been completed in a tradesman-like manner as the bricks were chipped and stuck out unevenly and part of the wall had no support behind it which would make it unstable. The builder repaired the chipped end bricks but this part of the wall still has nothing behind it for support. Without support, the structural integrity of the retaining wall is compromised.
In response to this complaint, Mr Lees has re-iterated his view that when he inspected the retaining wall on more than one occasion, it was not leaning, tipping or subsiding. Accordingly he formed the view that it was not defective work.
Finding
On the basis of Mr Lees’ expertise I find that the retaining wall was not defective as a result of an alleged lack of support.
(d) The Builder washed concrete, dirt and sludge down the drop-tee and the arrestor pit on a number of occasions.
Mr Lees’ evidence is that concrete dust entering the stormwater drain is not building work. Further, he observed a number of years of accumulation of debris in the pipes that was not the responsibility of the builder to clean. His evidence is that the sludge build up was not defective work.
Mr O’Brien gave evidence that he regularly cleaned the stormwater drain and that there was no build up of debris in the drain.
Mr Lees acknowledged that he had requested the builder to clean the stormwater system and said that builder had provided a copy of an invoice for hire of a gurney used to flush the storm water line in April, 2011.
Finding
I accept the evidence of Mr Lees that concrete dust entering the stormwater drain is not building work and that in any event, cleaning of debris and sludge had been undertaken. In these circumstances I find that it would be unreasonable to require the builder to undertake further work.
(e) The surface of the concrete was altered by the builder to make water flow into the wrong end of the arrestor pit, with the result water is not being filtered of impurities and debris before going into the storm water line.
Mr Lees’ evidence is that the builder has directed water away from the slab and the house. He said it would be costly, illogical and inefficient to try to redirect the water flow to the arrestor pit. In any event, Mr Lees said that it does not matter which end of the arrestor pit that the water enters as the arrestor pit does not go to a storm water drain, instead it runs the length of the property and the water exits on to the grass at the back of the property.
At the hearing Mr O’Brien agreed that water does not go to the stormwater drain but discharges at the back of the property.
Finding
On the basis of Mr Lees’ expertise I accept his evidence and find that water flowing into the wrong end of the arrestor pit was not defective work amenable to a direction to rectify. Consistent with Mr Lees’ evidence I find that it would be unreasonable to require rectification of this work given the cost and limited utility of the work.
(f) The concrete pathway was rough and cracked because it was not laid properly in accordance with best building practice and Australian Standards including that it does not have a thickness of 75 millimetres.
Mr Lees’ evidence is that the concrete path is not a structural part of the building, there are the appropriate falls and it conforms to the relevant Australian Standards.
Finding
On the basis of Mr Lees’ expertise I accept his evidence and find that the concrete pathway is not defective work.
(g) The builder replaced the earthenware stormwater pipes with smaller diameter PVC downpipes, which Mr O’Brien believes are not strong enough to be underground and which should have been PVC stormwater pipes.
Mr O’Brien called no expert evidence in relation to this complaint. He said that the earthenware 100mm pipe was replaced with a 90mm PVC downpipe (not a stormwater pipe) and that if it storms water bubbles back up.
Mr Lees does not directly address the complaint in relation to the adequacy of a 90 mm PVC pipe, however he said in evidence that there was a short exit point to the arrestor pit and then to the back yard. He said any water bubbling up would go down the path to the yard.
Finding
In the absence of any expert evidence as to the adequacy of the pipes laid to carry stormwater underground, I am unable to find that there has been defective work.
(h) The builder failed to install a rainwater head between the new PVC pipe that was installed in the concrete slab and the downpipe. After the second pour of concrete the builder knocked the pipe out of alignment. Photographs marked “A” to the Exhibit 2 show 2 downpipes out of alignment and with a significant gap between them.
The evidence of Mr Lees is unsatisfactory on this point. He says that on 13 December, 2010 he found that the rainwater head had been installed but not glued. He said that discussions on that day did not clearly identify why the rainwater head had not been glued. However, in his opinion there was no defective building practice on the part of the builder. He does not address the later problem shown in the photographs.
Mr O’Brien says that when it rains some water is caught in the bottom pipe and some runs onto the path in the side yard.
Finding
On the basis of Mr O’Brien’s evidence, I find that a rainwater head was not glued into place. I find that there has been misalignment of the pieces of downpipe. I find that this is building work for which the builder is responsible and that it is defective work, in that it does not meet a reasonable standard of construction and the work is not performing.
(i) The stormwater pipe joint at the eastern end of the property, near the arrestor pit, was showing signs of stress where it appeared as though the joint was bowed.
Mr Lees’ evidence is that when he inspected the pipe on 13 December, 2010, there was a little bit of debris in the bottom of the pipe, however, the pipe continued to perform. He did not think the pipe was defective in any way.
Mr O’Brien said in cross examination that the pipe was bent out of position and was not performing however he did admit that the pipe was carrying water away.
Finding
On the basis of Mr Lees’ expertise I accept his evidence that the pipe was performing and find that the pipe was not defective building work.
(j) When the concrete was poured the last time the pit in the middle of the path was not installed correctly as it lacked expansion joints. Also, the grate in the top is jammed and is difficult to remove when the Mr O’Brien needs to clean the pit.
Mr Lees appears to have construed this complaint as a complaint that there was no expansion joint in the path and has responded by pointing out that an expansion joint is not required in a path less than 15 metres long, which is the case at Mr O’Brien’s property. Mr O’Brien agreed to that proposition. However, that is not his complaint. It appeared in cross examination that he complains there is no isolation joint around the drainage pit.
Once that became clear at the hearing, Mr Lees’ evidence was that the pathway in which the drainage pit is set is 1.5 metres wide. The gully is plastic and the grate aluminium. He said there was no evidence of cracking and nothing to prove that the pit is not working. Further he said that the grate could be lifted with the use of a screw driver.
Mr O’Brien contends that the path demonstrates cracking. In cross examination Mr O’Brien agreed that any cracks were less than 1.5mm. Counsel for the QBSA referred to AS3727 – 1993 Australian Standard Guide to residential pavements, copied at TL-3 to Mr Lees’ statement which provides at Clause 5 that the criteria for acceptable performance of all pavements includes that crack width be 1.5mm or less.
Finding
On the basis of Mr O’Brien’s admission and on the basis of the expertise of Mr Lees, I accept his evidence and find that the lack of an isolation joint has not affected the performance of the drainage pit or the surrounding path and that there was no defective work.
(k) The wall next to the downpipe had acid burn that had caused discolouration.
Mr O’Brien says that over time and after the date of Mr Lees’ inspection a rust colour has developed on the wall where the acid was used.
Mr Lees says that he personally sought to assist Mr Lees by acid washing the wall to remove concrete sludge. He said that the wall was thoroughly washed down with tap water upon completion. He says that the discolouration is not defective building work.
Finding
On the basis of Mr Lees’ expertise I accept his evidence and find that the discolouration of the wall is not defective work. There is insufficient evidence before me to demonstrate that the discolouration is related to the use of an acid wash down.
(l) The 90 degree return on the end of the retaining wall is unstable because it is not sitting firmly on any base it is just sitting on dirt. It is also not locked into the rest of the wall so it could easily move. There is no capping stone on the top of that part of the wall.
Mr Lees’ evidence is that the retaining wall was stable and that there was no defective work by the builder. He does not dispute the lack of a base or capping stone.
Finding
On the basis of Mr Lees’ expertise I accept his evidence that the retaining wall is performing. However, in terms of the other indicia of defective building work set out in the Rectification of Building Work policy, it does not appear to me by reference to attachment “B” to the statement of Mr O’Brien dated 16 September, 2011 (Exhibit 1) and the photographs marked “G” attached to the statement of Mr O’Brien, dated 15 February, 2012 (Exhibit 2) that the return of the retaining wall is constructed to a reasonable standard or finish expected of a competent holder of a contractor’s licence of the relevant class. I find that the work is building work for which the builder is responsible. I find that it is defective work.
(m) The gravel behind the main block wall is not the required width in some places. The manufacturer’s requirements are that the gravel be 300mm behind the wall. In certain places the gravel is 150mm and it varies all along the wall.
Mr Lees’ evidence is that the retaining wall is stable and that width of gravel is not defective building work.
Finding
On the basis of Mr Lees’ expertise and evidence, I find that variable widths of gravel behind the retaining wall are not defective building work. In any event in light of the performance of the wall and the relatively minor variances in width I find that it would be unreasonable to require the builder to lay more gravel.
(n) In certain places the wall has no geo-tech fabric installed to protect the gravel from becoming contaminated with soil.
Mr Lees’ evidence is that on 13 December, 2010 he removed the overlaying layer of gravel and revealed the geo tech fabric underneath.
Mr O’Brien’s evidence is that there is no geo-fabric on the return wall.
Finding
Mr Lees’ evidence is not clear as to where he looked for the geo-fabric. I accept the evidence of Mr O’Brien that there is no geo-fabric behind the short return wall of the retaining wall and find that this is defective building work.
(o) When the builder dug up the first pour of concrete they left a strip of concrete in front of the retaining wall. This strip of concrete was not replaced and it is only 40mm deep in parts. The concrete should be 75 mm deep according to Australian Standards and this is a concern because the parts of the concrete that are too thin can create a weak point for the retaining wall.
Mr Lees’ evidence is that the thickness of the concrete path is more than 40mm, but in any event the concrete path was performing.
Mr O’Brien relies on a photograph, attachment J to Exhibit 2, purporting to show the depth of the concrete strip. I am unable to clearly discern the depth from the photograph.
Finding
On the basis of Mr Lees’ expertise and evidence I find that there was no defective work. In view of the evidence that the path was performing and it is not possible to say with certainty the depth of the concrete strip, I find that it would in any event, be unreasonable to require rectification of the work.
(p) The re-enforcing mesh in the concrete was protruding through the concrete path near the down pipe near the front of the on the left hand side.
Mr Lees’ evidence is that on 13 December, 2010 he found a small amount of metal protruding through the concrete path and requested the builder to rectify this. Mr Lees understood the builder had rectified the item. During the hearing Mr Lees addressed the additional complaints which appear in the material. In relation to protruding re-enforcing mesh, he said that it was not pointed out to him after the concrete was poured for the second time.
The photographs marked “K” to Exhibit 2 purport to show the protruding mesh are dated 13 February, 2012 which post-dates the second pour of concrete.
Finding
On the basis that mesh protruding through concrete does not meet a reasonable standard of construction or finish expected of a competent holder of a contractor’s licence of the relevant class, I find that the work is defective. I note Mr Lees had been prepared to request the builder to rectify this problem when it was first observed.
(q) When the builder poured the second load of concrete they made the top of the path sit 75mm lower than the original path leaving marks on the wall where the old concrete used to sit.
Mr Lees was uncertain as to the nature of this complaint, but concluded that there was no defective work.
Finding
I construe this complaint as a complaint about the standard of finish of the work, given that marks have been left on the retaining wall. I find that the problem with the finish of the work is too minor to constitute defective building work.
(r) The concrete around the storm water pit in the pathway is not installed as required by the Australian Standards 3727 which dictates the thickness around the storm water pit area. The concrete path that was altered near the retaining wall and arrestor pit is only 30mm deep in parts which, coupled with the way it was installed, is going to cause weak spots in the retaining wall.
Mr Lees’ evidence is that at the inspection on 13 December, 2010 he observed the concrete path was level to the storm water pit and the storm water pit was performing. He determined that the item was not defective building work.
Finding
Apart from Mr O’Brien’s assertion of a lack of thickness of the concrete and speculation as to the consequences of that lack of thickness, there is no expert evidence on which I can rely to which establish Mr O’Brien’s allegations. On the basis of Mr Lees’ evidence that the concrete path and the storm water pit were performing I am unable to find that there was defective building work.
(s) The Builder used second hand materials to construct the retaining wall and when pouring the concrete.
Mr Lees’ evidence is that the retaining wall and concrete path were performing adequately.
Finding
On the basis of Mr Lees’ expertise and evidence I find that there has been no defective work as a consequence of the alleged use of second hand materials.
(t) Mr O’Brien conducted water leak tests on the storm water line which showed an increase in the flow between the arrestor pit at the front of the house and the dropped tee. The use of a digging machine, lifting a corner of concrete and using a sledge hammer to remove old pipes would have caused cracks in the concrete, damaged the remaining pipes and caused increased leakage in the storm water line.
Mr Lees’ evidence is that the water test undertaken by Mr O’Brien was not sufficient to completely stop the water in the pipe. He observed an old crack in the earthenware pipe which he considered predated the builder’s work. He said earthenware pipes will leak depending on their age. Leaking was likely from the earthenware pipe rather than the new PVC pipe. The earthenware pipe is approximately 300mm lower than the concrete paths and in his opinion the pipe was not cracked from use of a sledge hammer.
Mr O’Brien’s evidence at the hearing was that his testing established that leakage was increased after the work was done installing the PVC pipes. Mr Lees’ response was that one could not be confident where the leaking was coming from and he thought it more likely it was coming from the old pipe.
Finding
I am not satisfied that there is sufficient evidence to support Mr O’Brien’s allegations. Accordingly, on the basis of Mr Lees’ expertise I accept his evidence and find that there is no defective work related to this item of complaint.
At the hearing Mr Lees confirmed that he was familiar with the matters set out in the 10 August, 2011 Complaint and the 5 September, 2011 Complaint attached to Ms Blainey’s statement. He said that those matters had been previously dealt with in his inspection report and affidavit. For completeness, in evidence in chief he addressed the items of complaint confirming that he did not consider there to be any defective building work.
Finding
Because there is no decision made after receipt of these complaints which is the subject of any application for review before me, I make no findings in relation to this evidence other than has already been found in relation to each item of complaint addressed earlier in this decision.
Final submissions
The applicant was given an opportunity to make written submissions at the conclusion of the hearing. The submissions reiterate his complaints, expand on some complaints and make fresh complaints. He has also submitted fresh photographic evidence not previously submitted.
The QBSA objects to the Tribunal taking account of new matters and evidence.
In making my decision I have not had reference to Mr O’Brien’s submissions in relation to the following matters:
(a) Clause 8.2 of the applicant’s submissions in relation to cracks to the arrestor pit;
(b) Photographs marked A, B, C, D, E and F;
(c) Clause 8.22 of the applicant’s submissions in relation to a compression fracture to concrete at the front of the house, the expansion joint along the concrete beside the house and drummy tiles in the entry.
I have noted Mr O’Brien’s reiteration of matters previously canvassed by him. I have noted the QBSA’s preliminary submissions on which they rely.
Conclusion
Pursuant to section 24 of the QCAT Act the Tribunal may:
(a) confirm or amend the decision under review;
(b) set aside the decision under review and substitute its own decision; or
(c) set aside the decision under review and return the matter for reconsideration to the decision-maker for the decision, with the directions the Tribunal considers appropriate.
The decisions the subject of this review are the decisions communicated to Mr O’Brien by letters dated 18 May 2011 and 3 May 2011 that his Complaints dated 29 October 2010 and 11 March 2011 did not relate to defective building work for which a direction to rectify would be issued to the builder.
In relation to 4 complaints I have found that there was defective building work for which the builder is responsible. There are no circumstances in the case of those items of work which suggest that it would be unreasonable or unfair to require rectification.
Accordingly, I confirm the decisions under review except in relation to the following complaints:
(a) the misaligned downpipes depicted in photograph “A” to the statement of Mr O’Brien, dated 15 December, 2012;
(b) the 90 degree return on the end of the retaining wall, which is not sitting firmly on any base and not locked into the rest of the wall and which is missing a capping stone on top of that part of the wall;
(c) the lack of geo-fabric behind the short return wall of the retaining wall;
(d) re-enforcing mesh protruding through the concrete path near the down pipe near the front of the house on the left hand side.
I set aside the decisions under review to the extent it is concluded that items (a)-(d) in the preceding paragraph are not defective building work for which the builder is responsible and which the builder should be directed rectify.
I return the matter for reconsideration to the QBSA and direct that it attend a further inspection of the applicant’s property for the purpose of determining an appropriate direction to rectify in relation to items (a)-(d) to be carried out by the builder or otherwise at the QBSA’s direction.
[i]Sections 19 and 86(1) Queensland Civil and Administrative Tribunal Act 2009; section 72 Queensland Building Services Authority Act 1991.
0
0
0