O’Neill Building and Renovations Pty Ltd v Queensland; Building and Construction Commission & Anor
[2025] QCAT 353
•23 September 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: O’Neill Building and Renovations Pty Ltd v Queensland
Building and Construction Commission & Anor [2025]
QCAT 353PARTIES: O’NEILL BUILDING AND RENOVATIONS PTY
LTD
(applicant)v QUEENSLAND BUILDING AND CONSTRUCTION
COMMISSION
(first respondent)KAREN STEPHAN
(second respondent)APPLICATION NO/S: GAR351-23 MATTER TYPE: General administrative review matters DELIVERED ON: 23 September 2025 HEARING DATE: 27 March 2025 HEARD AT: Brisbane DECISION OF: Member Richard Oliver ORDERS:
The Direction to rectify dated 17 February 2023 is
varied to read as follows:The installation of the valley to the western side of the rear entertainment area roof is defective in that a metal post installed through the valley which obstructs the flow of water from the roof should be removed so that the installation (valley) complies with the performance requirements of NCC/BCA Volume 2-Part 2.2.2 to prevent water from penetrating through the valley into the internal elements of the roof framing causing damage to the structural timber elements and adjacent eave linings – Pertains to complaint item numbers 17, 18, and 19 of the QBCC complaint form.
The direction to rectify dated 17 February 2023 is
varied to read as follows:The installation of the retaining wall is defective in that:
1. Steel soldier piers extend above the top sleeper of the retaining wall; 2. Exposed steel reinforcing from cut sleepers or wails are exposed rendering them susceptible to rust and corrosion.
CATCHWORDS:
ADMINISTRATIVE LAW – GENERAL ADMINISTRATIVE REVIEW – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PROCEDURE – DIRECTION TO RECTIFY – FAIRNESS – where the applicant and the second respondent entered into a contract for the renovation of the an outdoor room adjacent to a tennis court – where existing tennis court light – where architectural plans prepared for the construction but did not incorporate the existing light – where existing light was to be retained – where existing roof extended and new roof constructed – where a valley created between the extended roof and the new roof – where light pole on an existing post extended up through the new valley adjacent to the surfeit – where rubber boot and silicone used around the bottom of the light pole to prevent water penetration where it protruded up though the valley to prevent water penetration to the ceiling below – where water prevention system failed and water penetrated the building elements below – where second respondent contended the water penetration issue was the responsibility of the applicant – where second respondent made a complaint to the first respondent – where first respondent carried out investigations and made a decision to issue a direction to rectify to the applicant – where failure to comply with Building Code and Australian Standards in carrying out the work – where applicant contended the second respondent wanted to retain the light pole – where applicant constructed the works according the architectural plans and engineering plans – where applicant offered to remove the light at no cost – where applicant contended the light pole was a latent defect – where the applicant accepted the valley with the light pole through it did not comply with current standards – whether it would be unfair to issue a direction to rectify in the circumstances – whether exercise of discretion favours the applicant
RETAINING WALL – DIRECTION TO RECTIFY – FAIRNESS – VARIATION OF DIRECTION TO RECTIFY – where retaining wall constructed to retain soil adjacent to
the tennis court – where non-structural retaining wall – where initial movement in the upright piers – where piers in 800mm of concrete – where movement forward slowed and ceased in past two years – whether the retaining wall compliant with standards – whether structurally defective – whether further monitoring necessary
Queensland Building and Construction Commission Act
1991 (Qld), s 72(2), s 72(5)Queensland Civil and Administrative Tribunal Act 2009
(Qld), s 20, s 24Haimes v Queensland Building and Construction
Commission [2024] QCAT 326
Laidlaw v Queensland Building Services Authority
[2010] QCAT 70APPEARANCES &
REPRESENTATION:Applicant: Self-represented by Shane O’Neill First Respondent: Mr Ensby, solicitor of Gadens Lawyers Second Respondent Mr O’Donoghue, solicitor of Construction Law MD REASONS FOR DECISION
Introduction
On 25 June 2020 the applicant entered into a renovation contract with the second respondent to carry out renovation work to her house including the construct a new entertainment room on the eastern side of the house, adjacent to an existing tennis court. On the long side of the tennis court there are existing flood lights high up on poles. As one looks at the proposed new work on the western elevation on the floor plans, there are two gable roof structures over the outdoor room.[1] One gable faces west (shown on the plan) and the other gable not seen on the western elevation plan but is shown on the south elevation.[2] Between the two gable roof structures there is a valley.
[1] Described as “outdoor room” on exhibit 4. Also annexed to the application for review filed 23 May 2023.
[2] By reference to Exhibit 4 which notes the length of the roof structure for the outdoor room is about 14 metres long facing in a slightly northeasterly aspect.
As it happened, where the valley is drawn on the architectural plans the southern tennis court light pole passes up through the valley, which is about 450mm wide.[3] On the west elevation plan the light pole is on top the fourth post from the right side of the plan. The actual light pole is not shown on any of the plans/drawings at all. The valley line is shown in the engineering design, but a little to the left of the light pole/post, there is more to say about this later in these reasons.
[3] This can be seen in a photograph on page 547 of the hearing book.
The applicant constructed the works in accordance with architectural plans. Mr O’Neill, the nominee licensed builder for the applicant company, when realising that if the light pole was to be retained it would come up through the valley, says he discussed this issue with Ms Stephan and offered to remove it. He says she insisted it remain in place, consistent with her subsequent email to Mr O’Neill.[4] He followed her instructions and decided to work around it. He did this by fixing a rubber decktite[5]flashing boot around the square pole where it came up through the valley.[6] This was to provide a waterproof seal around the pole and the floor of the metal valley.
[4] Hearing Book page 693
[5] Trade name for flashing around roof pipe protrusions.
[6] This is clearly depicted in photograph 2.1 attached to the application for review filed on 23 May 2023. It shows leaf litter and debris packed around the post.
Another part of his work was to build a new retaining wall on the western side of the tennis court. He did this using concrete sleepers slotted into in steel channelled uprights to a height of about 800mm. The total length of the wall was about 40 plus metres. It was backfilled to a height of about 70cm – 80cm.
Sometime after the renovation work was finished, Ms Stephan noticed water seeping through the ceiling and eaves where the light pole went up through the roof valley. Investigations were undertaken and it was found leaf litter was backing up around the light pole in the valley causing water to dam up and then penetrate below through the decktite boot.
At about the same time the retaining wall showed signs of forward movement and there was concern it could fail.
Ms Stephan made a complaint to the first respondent, the Commission, and investigations were undertaken both of the water penetration issue in the valley around the light pole, and also the retaining wall. The Commission concluded that constructing the valley with the light pole protruding through it was defective building work. Similarly, given the movement in the retaining wall it concluded that was also defective building work.
As a consequence of those findings the Commission issued a Direction to Rectify (“DTR”) to remedy the water penetration issues and rectify the retaining wall. The decision to issue the DTR was made on 17 February 2023 and upheld on review on 17 April 2023. For the water penetration issue the DTR is in the following terms:
The installation of the valley to the western side of the rear entertainment area roof is defective in that a metal post is installed through the valley which obstructs the flow of water from the roof. The installation does not satisfy the performance requirements of NCC/BCA Volume 2-Part 2.2.2 in that water is penetrating through the valley into the internal elements of the roof framing causing damage to the structural timber elements and adjacent eave linings – Pertains to complaint item numbers 17, 18, and 19 of the QBCC complaint form.
As for the retaining wall at the western side of the tennis court:
The installation of the retaining wall does not comply with the manufacturers installation requirements, Australian Standard 4678 or BCA P2.2.1 in that the wall is overturning and contributing to the loss of soil foundation in the area of the zone of influence to the foundation of the tennis court slab – Pertains to complaint item number 33 of the QBCC complaint form.
On receiving the DTR the applicant filed an application to review the Commission’s decision on 23 May 2023. This application is a review of the Commission’s decision under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”). The function of the Tribunal is to produce the correct and preferable decision by way of a fresh hearing on the merits.[7]
[7] QCAT Act s 20.
Issues for determination
The parties have filed an agreed list of issues for determination. I propose to work through that list for convenience. Firstly, I propose to deal with the light pole in the valley. In respect of this, one important issue is not in dispute. That is the concession by Mr O’Neill that the existence of the light pole in the valley is defective building work. When specifically questioned about this at the hearing, he said:[8]
Do you accept that, as constructed, the roof valley, because of the steel pole being situated in it, is defective building work?---I wasn’t aware of that at the time, no.
Well, do you accept now? You’ve seen the expert reports. You’ve seen the roofer’s reports from the commission’s expert, the---?---Uh – yeah, I understand why because it limits the – the water, so ---
Right. But you accept its defective building work?---Yeah.
………………….
---Its defective building work?---It has be referred to as defective work. Its
defective. Its letting water in, which is defective work[8] Transcript page 52–3.
Bearing in mind that Mr O’Neill is a registered builder with considerable experience, and his opinion is consistent with the opinions of the expert engineers who have provided reports, the concession is an obvious one to make. I therefore find that it is defective building work.
It follows from this that water ingress will ultimately impact the structural integrity of the building work. As Mr Porter said in his report of 13 February 2023 that the post being in the valley does not satisfy the performance requirements of NCC/BCA Vol 2 Part 2.2.2 because water penetration will cause damage to the structural timber elements and adjacent eave linings.[9] Although not said, the effect of the DTR is that the post has to be removed and the metal valley either removed and replaced, or the hole where the post was, has to be patched and properly sealed to prevent water penetration.
[9] Hearing book page 650.
The only issues remaining for determination in respect of the light pole located in the gulley is whether:
(a) the DTR should be set aside because in all the circumstances it was in unfair to issue the DTR to the applicant in reliance on s 72(5) of the Queensland Building and Construction Commission Act 1991 (Qld) (“QBCC Act”); and (b) the presence of the light pole was a latent condition for the purposes of the building contract between the applicant and the second respondent.
Another alternative is whether to vary the DTR under s 24 of the QCAT Act.
The architectural drawings and engineering design
In considering the fairness question I will start with the construction drawings. That is because there is a contention that the applicant did not build in accordance with the architectural plans, and the valley should not have terminated at the juncture of the bottom of the gable facia and the horizontal roof beam of the new room as shown on the western elevation.
Ms Stephan had engaged BAA STUDIO Architecture to prepare a full set of certified construction drawings for the project. In addition Ms Stephan supplied a set of engineering drawings prepared by GDS Consulting Engineers. On reviewing the drawings Mr O’Neill prepared a scope of works and gave it to Ms Stephan.
During the hearing, Mr O’Neill said that he had obviously inspected the house and the tennis court, where retaining was required, and although the lights were there, he just didn’t take any notice of them. It was not until construction started that he realised there was a problem with the positioning of the pole supporting the light.
It is not contested that the architectural drawings do not make any reference to the tennis court lights. This is evident by reference to the plan of the west elevation. When looking at the plan, the relevant post is the fourth post from the right. It terminates under the roof, or within the roof framing on the downslope of the gable roof.[10] Likewise there was no reference to it in the engineering design. Nor was any allowance made for it to be integrated into the new build whether where it was subsequently located or elsewhere.
[10] Ibid page 534.
There has been no explanation as to why the light pole was not drawn in on the plans when it seems reasonable to infer from Ms Stephan’s evidence that it was always going to remain. Perhaps a reason might be that if it was, the certifier may not have been able to give a building approval because, as the Commission has outlined in the DTR, the post in the valley does not meet the performance requirements of the NCC/BCA.
Some evidence about the light pole not being in the engineering drawing was provided by Mr Conran of GDS Consultant Engineers. The relevant engineering drawing referred to by him was page 14/17[11] attached to an email to the Commission. This drawing shows on the western side a series of four posts, all noted as ES1. In the legend for ES1 on the drawing ES1 means “existing steel column to remain”. By reference to the photograph[12] of the completed build on the western elevation, only one of the four steel columns incorporates the light. There is no reference to the light remaining in situ on the engineering drawings.
[11] Ibid page 1273.
[12] Ibid page 1255.
With respect to the valley, Mr Conran, in a response to questions put to him by the Commission about whether the light pole was factored into his structural plans, said in a written response:
I refer you to our structural plan Job No. 6107, sheet 14 of 17 “Lower Roof & Balcony Framing Plan” ES1 (Existing Steel Column) on the middle left, we have shown the roof valley to go past ES1, not through the middle of ES1, its suppose (sic) to run beside ES1. Structurally the roof frame is fine. Its not in our scope of work to design or sign off on roof guttering or responable (sic) for water proofing. NCC 2.2.2 Refers to Weatherproofing, it’s the builder and or plumbers reasonability (sic) to ensure performance, set out and functionality with regard to waterproofing and gutters etc. We have shown the roof valley missing/going past the ES1 light pole.[13]
[13] Ibid page 1254.
The above comment is in relation to drawing sheet 14/17[14] which is attached to Mr Conran’s response to the email from the Commission. It would seem in that email he is referring to a broken line (presumably the centre of the valley), dropping below the steel column. However the drawings he is referring to are not the certified drawings used in the build. The certified drawings consist of 13 drawing sheets (not 17) and were provided to the Commission by Ms Stephan on 10 January 2023.[15]
[14] Ibid page 1273.
[15] Statement of Reasons Ex 9; Hearing book page 526. The certification was provided to Ms Stephan and the Building Approval No 200155 included in the schedule the GDS Engineering Plan No 6107 sheets 10–13.
The certified drawing closest in design to the one Mr Conran is referring to is drawing sheet 10/13.[16] This sheet shows more detail and depicts the existing roof sheeting, hashed area with lines, running down to HR1 on the western side. HR1 is the valley. When Mr Conran says that the roof valley is “to go past ES1” he makes no reference to HR1 because it is not even noted on drawing sheet 14/17. He was not directed to comment on the certified drawings.
[16] Hearing book page 557.
There was discussion about this during the hearing. With the help of Mr Porter, who was assisting Mr Ensby for the Commission, he referred to the certified engineering drawing 10/13 which showed HR1 as being the valley.[17] This makes sense because the existing roof sheeting runs down to the HR1 line. There was then by reference to 10/13 the connection of the valley beam, HR1, to the existing roof beam ERB2, ERB3 on site. The legend sated, under HR1:
“confirm connection to existing roof beam (ERB2, ERB3) on site”[18]
[17] Transcript page 30 line 10.
[18] Again there is no mention of this on drawing sheet 14/17 to which Mr Conran referred.
Again by reference to the engineering drawings it is not possible to connect the valley to the existing roof beam ERB2 because that beam goes up at an angle or rake[19] from the post to which the steel light pole is attached, ES1, so that section forms the gable. That is evident by reference to the certified architect plan 4.[20] The existing horizontal roof beams are to remain to the point where the rake starts. By reference to architect plan 2 the existing roof beam ends at the fourth TP. Also the beam on the “rake” is shown in the photographs of the finished build.[21] It follows from that, the valley line must come down directly onto the light pole as shown in architectural drawing 4. That line is the same line as H1 on engineering drawing sheet 10/13.
[19] Meaning it is on an angle with the roofline.
[20] Hearing book page 531.
[21] Ibid page 1399.
Mr O’Neill gave some evidence about the HR1 beam. His evidence was that HR1 was hip rafter or valley rafter to go in the centre of the valley. Also the valley itself is 420mm – 450mm wide . The steel post coming up through the valley is to the right hand side of HR1 looking at the valley from ground level. It was put to him that when looking at the engineer’s drawings the steel post was not to be positioned in the valley, because the existing post was outside the hatched area. He agreed with that but again by reference to the architect drawing 4 HR1 terminated at the steel post.
This discrepancy was explained by Mr O’Neill by saying he does not build to the engineer’s drawings. It is the measurements on the architectural plans that are critical to the build. That seems fairly obvious to me because there are no measurements on the engineer’s drawings, just structural components. Mr Conran’s evidence is of no assistance because he was referencing the wrong plans which didn’t even have HR1 noted on it, just the line. Had he attended the hearing these matter could have been clarified.
Mr O’Neill’s evidence is that he constructed the whole job in accordance with the measurements on the architectural drawings. There is no evidence to contradict this. None of the experts have done a check measurement to ensure the works are in accordance with the plans. I therefore accept his evidence on this point and it is also consistent with the architectural drawing sheet 4 and the photographs in exhibit 5.
The NJA Investigations report of 16 April 2024 did not really clarify this issue of where HR1 was to be fixed to the horizontal roof beam. Mr Buckley stated at 3.1.12:[22]
Sheet 10 shows a framing design for the roof over the entertainment area and details an arrangement where an existing gable end pitched roof frame is extended with a second gable end roof frame perpendicular to the first.
Hip Rafter (HR1) is shown falling from the existing ridge beam (ERB3) to the existing roof beam at the gable end (ERB2), offset an unspecified distance from an existing column (ES1). It is relevant to note that ERB2 includes the following notation “Assumed existing portal frame roof beam. Confirm on site”
[22] Ibid page 1209–10.
Later in the report he referred to the “portal frame” and said:[23]
I also note that there does not appear to be a portal frame element to the original structure in the location noted “as assumed existing portal frame roof beam” ERB2 on GDS plans 7107- Sheet 10 Revision C. The existing arrangement spans the rafters from the outer roof beam (lower edge of image) to the internal roof beam (centre of image) and cantilevers to the ridge.
[23] Ibid page 1212 paragraph 3.6.3.
I take the comment above to mean that there was no portal frame for the HR1 beam to fall on, only the rising external beam of the gable, or raked beam forming the gable. The report does not really address the issue of where, on engineering drawing 10/13, the HR1 beam is to fall. What Mr O’Neill did say in his evidence was that by reference to the comment on the plans “confirm connection to existing beams”, is that he did get Mr Conran to site to tell him how to connect HB1 to the ES1 post. He also said that he was told where to weld/bolt steel cleats to ES1 (light pole) to secure HR1 and other rafters coming down form the new roof shown on architectural drawing 4 (hatched with horizontal lines). Again there is no evidence to contradict that this occurred. I therefore accept Mr O’Neills evidence on this point.
I will make one other observation for clarity. If HR1, being the valley rafter in the middle of the valley, was to be constructed in accordance with engineering drawing sheet 10/13 it would mean it would be fixed to the external roof beam going up on the rake to form the gable. One doesn’t have to be an engineer to realise that could never have worked for the roof storm water flooding into the valley and to flow into a gutter. You can’t have a gutter on a rake (angled) facia board. The valley had to terminate either at the point where the horizontal existing beam ended and the rake commenced,[24] or to the right of that point (on the western elevation) so HR1 was fixed to the existing beam. In other words the HR1 line had to terminate at the right of ES1 on drawing 10/13. However, I am not in a position to say whether that would be structurally sound, it is a mere observation.
[24] Booth report, hearing book page 1392.
What I do not accept, by reference to the architectural drawing 4, and engineering drawing sheet 10/13, is that HR1 was to cross or terminate to the left of ES1 (on the western elevation). I therefore reject Mr Conran’s evidence not only because of the inaccuracy of his drawing 10/13 but also because it is based on uncertified drawings that were not even used for the build.
Mr Conran’s absence from the hearing was notable. Mr O’Neill says he endeavoured to have him attend but was told he didn’t want to be involved. Mr O’Neill did not know, he said, that his attendance could be secured by a Tribunal issued attendance notice. His attendance could have clarified some of these issues and it was contended by the Commission that I should draw a Jones v Dunkel inference that his evidence would not have been favourable to the applicant. Likewise, the Commission could have consulted with Mr Conran about his engineering drawing, which on any view, raises confusion.
Unlike civil litigation, in a merits review proceeding like this, there is no strict onus of proof. In Haimes v Queensland Building and Construction Commission[25] Member Deane followed what was said in Laidlaw v Queensland Building Services Authority[26] that:
In the absence of appropriate evidence the tribunal will not be free to make the decision sought by the party. This has sometimes been described as an evidentiary burden, but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it.
[25] [2024] QCAT 326, [6].
[26] [2010] QCAT 70, [23] (references omitted).
It would have been preferable if Mr Neill’s evidence about consulting with Mr Conran on site to provide a design for connecting HR1 to the existing steel post, light pole, but I see no reason to reject his evidence in the absence of corroboration. Clearly Mr Conran was aware of the light pole on top, as is depicted in the photograph in exhibit 5. Again this demonstrates to me that it was always intended that if the light pole, remained, it had to go up through the valley. Looking at the photographs it integrates with the new work where it is, and does not detract from the aesthetic appeal of the western elevation.
I have therefore come to the conclusion that Mr O’Neill did build the valley, and its connection point, in accordance with the architectural drawings. He also connected the HR1 beam to the light pole as required by the plans and as instructed by Mr Conran. I also conclude that it is reasonable to assume that, although it was not explicitly shown on the plans, the light pole was always meant to be positioned in the valley.
Did Ms Stephan agree to the steel post being in the valley
[39] In his evidence during the hearing Mr O’Neill explained how he dealt with the problem posed by the position of the steel post on the architectural plans. He said that he constructed the framing for the valley in accordance with the architectural plans and the engineering plan. This of course meant that the framing went either side of the steel post, as shown in the large photo of the framed up section in exhibit 5. It was not until the framing was completed that he said he had a brief discussing with Ms Stephan. When questioned about the timing of this he said:[27]
[27] Transcript page 43 line 1–10.
Is that what – when you went to her after you did roof framing the – after you did the roof framing - was that – what was the conversation you had to her about? I will ask it that way? --- Okay. So the conversation was either I said, “We can remove the light pole which is very easy, it will solve any future issues, or we get an engineer to do up – like, a hydraulic engineer to do up a – some sort of fancy box gutter or something around the post to take water away.
All right. And what do you say Ms Stephan said in response to that?---She didn’t want the light pole removed.
All right?---That was the only direction I got.
Later in the evidence Mr O’Neill confirmed that the framing was already in place when he took the issue up with Ms Stephan.[28]
[28] Ibid page 41 line 40.
You didn’t get instructions from the architect, didn’t get instructions from the engineer, didn’t get instructions from Ms Stephan until – or didn’t have a conversation with her until after the framing was up for the roof, where the valley had already been formed. So it – is it- sorry, that is the case, isn’t it?--- Thats the case, yeah. Correct.
Ms Stephan rejected the assertion that there was any conversation between herself and Mr O’Neill during the build and in particular at the time of the framing work. She did not mention in her statement of evidence[29] but when asked about it during the hearing her evidence was:[30]
[29] Hearing book page 695–1242. Although described as a statement of evidence it is in fact a submission prepared by her solicitor, contains no admissible evidence by her as to any factual matters concerning the build, not the light pole.
[30] Transcript page 21 line 45 and page 22 lines 1–10.
All right. Okay. Do you recall the first time you had the discussion with him about the steel post?---The first time I became aware of it was when I let him know that it was leaking, which was about October in 2020. Because the water was pouring down, leaking everywhere. I told him about the leak. He had never said anything to me about it privately.
All right. You heard Mr O’Neill’s evidence concerning discussions with you after the roof valley. Sorry, after he’d erected the framing for the roof, and the issue with the steel post being situated in the roof valley? Yeah
And he gave evidence about discussions with you? Yes, I heard him
What discussions do you say you had with Mr O’Neill concerning that issue?-- -Had no discussions with Mr O’Neill about that. He um frame- framed up it up, built it all it was only when it was leaking, and I told him it was leaking that he indicated that the post went through the valley. And that he was going to put a rubber boot around it to stop the leak. It continued to leak, and I complained about it regularly.
It seems implausible that the first time she realised the steel light pole went up through the valley was after the job was finished in October 2020. A photograph, in the Booth Report, shows the beam with rafters attached (at the dam end) and the post with the light pole attached. Clearly, the only inference that can be drawn from the architectural drawings and the photographs is that, Ms Stephan (and the architect for that matter) knew tht the light pole had to, and it was always going to be the case, remain in situ. Not only that, but also that it had to go up through the valley. To suggest that the architect or Ms Stephan did not realise that, is naive.
[43] Also, she does not make any reference to the issue of the existing light when discussing the plans with the architect. It reasonable to assume the architect must have known the light pole was to remain and therefore there was no need to include it in the plans. So many issues could have been clarified with some evidence from the architect. If a Jones and Dunkel inference is to be drawn it is the failure of the architect to be called. Also, one would reasonably expect Ms Stephan to at least tell the Tribunal whether there was any discussion with the architect about the light pole. She made no mention of it.
It is notable that during all of the Commission’s investigations, and engagement of experts, about where the valley was to be located, it did not seek any clarification from the architect about how the light pole was to be integrated into the roofing system.
In terms of fairness, it is relevant to decide if the position of the steel post was agreed to by the owner, Ms Stephan. As it is a contested fact it is necessary to make a finding as to whether there was any discussion about it as contended for by Mr O’Neill.
Mr Ensby for the Commission in written submission makes a sound argument that Ms Stephan’s evidence should be preferred. Importantly, despite my concerns about the cross-examination of Ms Stephan about this issue, Mr O’Neill did not rely on any such agreement when he first filed the application for review.
Annexed to the application is a comprehensive submission prepared by Mr O’Neill’s solicitor. The issue raised in the submission related only to the steel post being a latent condition not noted on the architectural drawings and therefore not the responsibility of the builder. There is no mention of any discussion with Ms Stephan about the steel post remaining in situ.
Also, there is another feature that is persuasive. The parties were directed to file any statements of the evidence to be relied on at the hearing of the application. Mr O’Neill did not file any further material and the issue of the agreement with Ms Stephan only arose out of cross-examination during the hearing. Ms Stephan was legally represented at the hearing and her statement of evidence was prepared by her solicitors. As I commented above, the statement itself is not a statement going to the factual circumstances of the planning and the construction of the valley or anything else, it is nothing more than a submission prepared by her solicitor. One would have expected to see some commentary on what she had observed during the build and the evidence of water leaking into the ceiling which gave rise to the complaint.
Had the issue of the agreement or conversation about the steel post been raised by Mr O’Neill in his material, given the nature and purpose of Ms Stephan’s “statement”, one cannot be assured there would have been any response to it. There was no factual response about the latent condition, e.g. contending that the applicant was aware of it when the contract was signed. The only evidence of relevance from Ms Stephan, apart from her written complaint to the Commission, is contained in her email response to Mr O’Neill’s email about his offer to remove the light pole. She said:
The tennis court light pole was part of our existing approved structure. It is NOT an acceptable solution for rectification of your defect and failure to comply with the building code to demolish my existing approved tennis court lighting. Demolishing the tennis court lighting will make it non-compliant with tennis court standards and reduce its amenity as it will no longer be suitable for night use.[31]
[31] Hearing book page 693–4.
It is reasonable to suppose there would have been various discussions between Mr O’Neill (and staff) with Ms Stephan during the build about all sorts of things, paint colours, working hours, access etc. I accept that Mr O’Neill was aware that it would have been much better to remove the light pole than having it go up through the valley. It is also clear, whether the conversation occurred or not, the outcome would have been the same with Ms Stephan insisting the light pole remain in situ. As she said it was a part of the approved structure. However, that is not quite right because it is not noted on the certified plans.
Although I am not prepared to find there was a specific agreement between Mr O’Neill and Ms Stephan about the light pole remaining, I do find there was some conversation between them about, at the very least, him not cutting off the light pole. It is arguable this is what the Commission has directed him to do when regard is had to the wording of the DTR.
Latent Condition
If there is a failure to include the steel post in the plans then the owner is responsible for the cost of any work to overcome the latent condition pursuant to clause 14 of the contract. However, there is a process for the builder to follow when the builder becomes aware of the latent condition. The builder must give to the owner a notice describing the latent condition, the work required to overcome the latent condition and the cost of the work. Here, Mr O’Neill did not do any of the things he was required to do under clause 14 if he was going to make a claim that it was a latent condition.
Also, it is difficult to see how the existence of the steel post could be a latent condition within the meaning of clause 14 of the building contract, even though it is not noted on the plans. I find it difficult to accept that Mr O’Neill did not notice the light when inspecting and quoting the job. Even if I were to accept he didn’t notice it because he was looking up at the existing structure from underneath, it soon became apparent when demolition work started that the existence of the steel post was going to be problematic.[32] He could have raised, but did not, a variation for any work associated with the existing steel post.
[32] Mr O’Neill more or less concedes this in his final submissions.
The Commission relies on the notes on the architectural plans about the responsibility for the builder: all dimensions to be confirmed on site; refer to structural engineer’s drawings for structural details; and identify any discrepancies that might lead to variations. Prior to framing up the gable roof with the valley Mr O’Neill did not raise any of the issues, with either the architect or the engineer, about the failure to provide detail of the light post.
The issue of the light post was first raised in the annexure to the application for review prepared by the applicant’s solicitor.
I therefore find the existence of the light pole was not a latent condition.
Fairness – exercise of discretion
It is convenient for this discussion to again set out the direction to rectify in the Commission’s letter to the applicant on 17 April 2023:[33]
[33] Hearing book page 84.
The installation of the valley to the western side of the rear entertainment area roof is defective in that a metal post is installed through the valley which obstructs the flow of water from the roof.[34] The installation does not satisfy the performance requirements of NCC/BCA Volume 2-Part 2.2.2 in that water is penetrating through the valley into the internal elements of the roof framing causing damage to the structural timber elements and adjacent eave linings – Pertains to complaint item numbers 17, 18, and 19 of the QBCC complaint form.
[34] My emphasis.
[58] There is now no dispute about the non-compliance with the NCC/BCC but the question remains, does the fault for the non-compliance lie solely with the builder. I have found that the construction of the roof framing and valley was in accordance with the architectural plans, but clearly there were deficiencies in the architectural construction plans and inaccuracies in the engineering structural drawings which did not include the existing light post.
The applicant contracted with the owner to construct the work in accordance with the plans. In doing so the applicant faced the dilemma about the light pole. As I have found, it was always going to be the case that if it was to be included in the build it had to go up through the valley to comply with the architectural plans. Looking at the plan from the western elevation, the valley could not go to the left of the light pole, nor could it go to the right and be consistent with the valley on the opposite side. Both valleys coming down from the existing ridgeline were to be uniform for the ridgeline of the new roof over the proposed new room at the southern end. For clarification I have attached a photograph – Annexure “A” to these reasons of the western side of the house and the subject valley with the light pole.
[60] To achieve an outcome to prevent water penetration around the post, the only recommendation is in the Resolution Services Report[35] which states:
[35] Hearing book page 629.
It would appear that the roof design is non-compliant as it allows a penetration through the valley gutter which obstructs the gutter and restricts flow. The flashing around the penetration also appears to be leaking as the amount of water used with the garden hose during testing was not enough to overwhelm the gutter even with the obstruction, however it is likely what with prolonged heavy rain the valley would also be overwhelmed. I would recommend a re- designing of the roof to avoid the post penetrating the valley or removing the post and re-positioning the light for the tennis court and replacing the valley gutter.
[61] In addition to the above there is evidence that the restriction in water flow is compounded by the build-up of leaf litter and debris in the valley, which is not unusual.[36] Maintenance of the roof and valley to keep it clear of debris is obviously the responsibility of the owner.
[36] Ibid page 36.
Clearly from the position Ms Stephan has taken, the removal, or even relocation, of the light is not an option. That then leaves a new roof redesign so the valley can be moved to the right (south) of the existing post. How that is achieved, and be compliant, is a matter for the architect and engineer.
In the joint expert conclave report[37] between Joseph Balanag, Adam Buckley and John Van de Hoef they all agreed the light pole should be removed from the valley. The options proposed were as follows:
[37] Ibid page 1379.
o Relocate post to other location in roof away from the valley gutter; o Relocate post to outside roof; o Remove upper sections of post above gutter and provide light below roof; o Reframe roof structure so that valley does not occur at the light pole location.
This option is considered to be the most difficult option.
Importantly, Ms Stephan is aware of these options and has not, in her submission or evidence expressed which option is acceptable, save that her email to Mr O’Neill of 19 April 2023, she maintains the post should not be removed. That was before the application to review the decision was filed on 23 May 2023. This is similar to the example referred to in s 72(5) of the QBCC Act when considering fairness.
The defective work identified in the DTR is that the metal post installed through the valley obstructs the flow of water from the roof. It would seem that the only way to allow the flow of water is to remove the metal post which Mr O’Neill was willing to do and fix the valley after the DTR was issued and before the internal review. Ordinarily, where an owner has refused to allow a builder to carry out the rectification pursuant to a DTR, the Commission would not take the matter further.
However, here it seems that is not to be the case, mainly because there is a contention that the applicant did not follow the architectural plans and engineering plans as discussed above. Once there is a finding that the applicant did build in accordance with the architectural plans then the only way to comply with the DTR, despite the options proposed by the experts in the joint expert report, is to remove the light pole.
The result of confirming the DTR in its present form may burden the applicant with the responsibility of undertaking a complete redesign of the whole roofing system if the last option of the joint expert report is to be the method of rectification. This would be necessary to integrate the new valley into the adjoining rooves, that is the extension of the old roof from the ridgeline down to the valley and shortening (it seems) the western side of the new roof over the outdoor room at the southern end, even though this was not the original design. He would also be responsible for any actual construction work to reposition the valley. I realise that this may not arise until a scope of work is prepared but it is the only alternative given the refusal of the owner to allow the removal of the light pole. Given the DTR, as worded, requires the removal of the post to rectify the obstruction to the flow of water, and the second respondent won’t agree to that, it would be unfair, under s 72(5), to now confirm the DTR in its present form on review.
Also, in balancing the discretionary factors to decide whether it would be unfair to issue the DTR in its present form, I take into account the following additional considerations:
(a) The applicant was not responsible for the architectural or engineering plans; (b) No proposal has been put forward about who might be responsible for the redesign of the valley so as to avoid the light pole and in the absence of that, the expectation is that it would be the applicant’s responsibility. That would then mean its (and Mr O’Neill’s) exposure to claims under the Home Warranty Scheme would be increased if there were any ongoing problems with the redesign for which he would be responsible. (c) The applicant, though Mr O’Neill, offered to remedy the water penetration problem by removing the light pole and sealing the hole in the valley. This offer, which is one of the solutions proposed in the joint experts report, was rejected by Ms Stephan. (d) To a lesser extent the findings that Ms Stephan not only wanted the light pole to remain but was aware it would have to go up through the gully to ensure the aesthetics of the completed new work were not detracted by the tennis court light. (e) However the alternate rectification work is carried out38 the result will be that the light pole will still have to pass up through the roof sheeting, not the valley, which will attract further possible water penetration problems because some form of flashing around the pole will still be necessary. It is made more difficult because it is a square pole.
There is no evidence from the Commission, nor is it necessary for it put on such evidence, as to what might be involved in the rectification work, but the expert evidence clearly suggests, if the light pole is not to be removed that a complete re- design of the roof system by an some structural framing work for the new valley to the side of the post, and the installation of the valley appropriately qualified engineer is necessary.
Conclusion on fairness
On the basis of these factors, I have come to the view that the terms of the DTR relating to the valley are potentially too wide and do not just focus on necessary work within the expertise of the applicant (Mr O’Neill) for him to be able to comply with the direction, that is to simply remove the light pole and either reseal or replace the valley floor sheeting. On this basis the DTR is unfair.
If the light pole is to remain, as Ms Stephan insists, then the responsibility for new design plans and certification is the responsibility of the owner. That is because compliance with the DTR could simply be achieved by the removal of the light pole which was never included in the original construction plans and is one of the recommendations referred to in [63] above.
Mr O’Neill, on behalf of the applicant, acknowledges that the light pole going up through the valley is defective building work. It is the applicant’s responsibility to remedy that defect and the only way that can be done is with its removal. The applicant must ensure there is no water penetration to the structures below from the valley.
Under s 24(1) of the QCAT Act the Tribunal can when reviewing a reviewable decision:
(a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter for reconsideration to the decision- maker for the decision, with the directions the tribunal considers appropriate.
I therefore propose to set aside the decision and substitute the Tribunal’s own decision that the DTR be varied so that it now reads:
The installation of the valley to the western side of the rear entertainment area roof is defective in that a metal post installed through the valley which obstructs the flow of water from the roof should be removed so that the installation (valley) complies with the performance requirements of NCC/BCA Volume 2- Part 2.2.2 to prevent water from penetrating through the valley into the internal elements of the roof framing causing damage to the structural timber elements and adjacent eave linings – Pertains to complaint item numbers 17, 18, and 19 of the QBCC complaint form.
The retaining wall
The retaining wall in question was constructed by the applicant to retain soil at the western side of the tennis court adjacent to the new extension. The wall was built using steel channelled uprights (soldier piers) into which are slotted concrete wales or sleepers. The wall is about 34 metres long with an average height of 80cm. There were two bays that were over 1m high. Mr O’Neill reduced the height of these by removing some sleepers so they were under 1 metre, the maximum height before engineering specifications are required. He said he had left over sleepers so just used them up rather than take them away. It is not disputed that this is not a structurally engineered wall.
Between the wall’s construction in 2021–25 there has been some movement forward in the wall from the perpendicular. Mr Porter of Resolution Services has provided a recent report dated 14 March 2025[39] in which he has prepared a table of movement of each of the soldier piers in that period. For convenience that table is attached to these reasons as “Annexure B”. The table demonstrates that when measured in January 2023 there was movement in all piers between 3mm (No 19) and 31mm (No 15). The average movement across the other piers varies, the worst being about 20mm in seven piers.
[39] Hearing book page 1244.
The table shows further movement when measured by Mr Porter again in March 2025. The increase in movement is minimal the worst being 16mm in No 14. The others show minimal movement of between 5mm and 12mm.
Mr Van de Hoef address this in his report of 12 July 2024[40] and his evidence before the Tribunal. He confirmed that on the test holes examined the depth of the piers in concrete was about 80mm, which is a reasonable footing. He confirmed that the wall was on average about 800mm high. He was concerned about the untreated ends of some sleepers that had been cut leaving the reinforcing steel exposed. He also noted the wall was about 1.2m from the pavement of the tennis court.
[40] Ibid page 1331.
The joint expert report[41] reiterates the views expressed by the experts about the movement of the various soldier piers in annexure “B”. What they do not address, despite that movement, is the structural integrity of the retaining wall. It is not structurally engineered but a landscaping wall with a maximum height of 800mm with piers imbedded in concrete to a similar depth. Although there was some initial movement of the soldier piers, that seems to have settled with little additional movement between in the period March 2023 to March 2025.
[41] Ibid page 1380.
Mr Van de Hoef was not prepared to say that the wall was not structurally sound because of the earlier rotation, but the lack of movement over the past two years indicated that it seems to have stabilised. His view was that it needs to be monitored further:[42]
[42] Transcript page 99 line 10.
But I – as I said it – initially, I’d probably be looking at saying we need to monitor it for at least two years to get an idea of its stability, and that would be – um – I guess, an engineering opinion in relation to whether the wall’s likely to rotate forward. Without knowing the exact footing depths and the – and more detail about soil conditions, I would be able to say that it met – met the requirements of the Australian standards.
Mr Buckley’s evidence was in a similar vein and said the wall, as constructed, will not collapse but if there is a structural issue it may rotate further forward in the years to come.
Other than the rotation forward, there is no other evidence to satisfy me that the retaining wall is not functioning and there is a loss of soil foundation in the zone of influence. It has been stable for the past two years even though further monitoring is advisable. It is not in danger of collapse, and is retaining the soil adjacent to the tennis court. Also, the area below the retaining wall, by reference to the photographs is garden area onto the adjoining boundary.
However, the exposed ends of the sleepers where they have been cut need to be treated for rust prevention of the steel reinforcing. Also any soldier piers that exceed the height of the top of the sleepers need to be cut off. Some of these appear in the photographs of the wall.
I propose to vary the DTR to reflect this under s 24(1)(a) of the QCAT Act.
The installation of the retaining wall is defective in that:
1. Steel soldier piers extend above the top sleeper of the retaining wall;
2. Exposed steel reinforcing from cut sleepers or wails are exposed rendering them susceptible to rust and corrosion.
Time for compliance with the varied directions to rectify will be in accordance with the time on the original directions, and commence from the date of delivery of this decision to the parties.
There will be orders accordingly.
Annexure A:
Annexure B:
Excluding the cutting off of the light pole.
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