OWNERS OF STRATA PLAN NO 47111 and PYRAMID CONSTRUCTIONS PTY LTD - [2012] WASAT 79

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)

CITATION: OWNERS OF STRATA PLAN NO 47111 and PYRAMID CONSTRUCTIONS PTY LTD [2012] WASAT 79

MEMBER: MR T CAREY (MEMBER)
MR D MILLER (SESSIONAL MEMBER)

HEARD: 28 FEBRUARY 2012

DELIVERED : 27 APRIL 2012

FILE NO/S: CC 1818 of 2011

BETWEEN: OWNERS OF STRATA PLAN NO 47111
Applicant
AND
PYRAMID CONSTRUCTIONS PTY LTD
Respondent

Catchwords:

Building - Complaint under s 5 of Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Water pump set installed under building contract - Whether builder responsible for pump set design - Whether builder obliged to notify owner of design defect - Causation of problems - Weather shelter for pump set - Failure by owner to provide instructions for shelter

Legislation:

Building Code of Australia
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 5(1), s 36, s 36(1), s 36(1)(a), s 38, s 38(1), s 38(1)(a)
Home Building Contracts Act 1991 (WA)

Result:

Application unsuccessful

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr R Shaw

Solicitors:

Applicant: Self-represented
Respondent: Lavan Legal

Case(s) referred to in decision(s):

Cable (1956) Limited and Hutcherson Bros Pty Limited (1969) 123 CLR 143
Henry Michael Lyons & Ors v Jandon Constructions (A Firm) & Ors [1998] WASC 224

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant sought an order for rectification of a faulty water pump set located on the roof of a new stratatitled multistorey building constructed by the respondent. It did so under s 5 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) on the basis that supply and installation of the pump set was not carried out in a proper and proficient manner, or was faulty or unsatisfactory.
Although the respondent accepted the existence of a range of problems, both physically with the equipment and in terms of its operation, it opposed the application on a number of grounds, including that the building contract was not a 'design and construct' contract, and that the design of the pump set was contained in the contractual documents which it implemented.
In arriving at its determination, the Tribunal considered the terms of the contractual documents, the facts and circumstances of the selection and installation of the pump set apparatus, the problems experienced and the evidence going to their causes, and the actions taken by the respondent once the problems became apparent.
The Tribunal observed that although, in some cases, the nature of a physical defect or operational deficiency associated with a regulated building service will itself lead inevitably to a finding of liability, this will not be the case where the defect or deficiency is attributable to a feature of design for which the builder is not responsible. However, even where, by reason of the correct construction of the contract between the parties, the builder has no contractual obligation to guarantee the performance of someone else's design, there may yet be an obligation to bring a defect with the design to the attention of the owner.
Having regard to the contractual terms and documents, the Tribunal found that the respondent's contractual obligations did not extend to guaranteeing the performance of the pump set in its location after the building was complete. In doing so, it found the parties' agreement more akin to the situation in Cable (1956) Limited and Hutcherson Bros Pty Limited (1969) 123 CLR 143 than that in Henry Michael Lyons & Ors v Jandon Constructions (A Firm) & Ors [1998] WASC 224.
As for the alternative failure to warn basis of liability, the evidence failed to disclose the connection between the physical and operative defects with the equipment, the causes of the problems, and whether the supply of weatherproof equipment or a shelter would have averted them. It was therefore impossible to identify any warning which a competent builder might have been expected to give. In addition, in relation to the possible erection of a shelter, the respondent did take steps to facilitate this, but was required under the contract to obtain instructions from the applicant's agent, which, despite request, were not forthcoming.
The Tribunal, accordingly, was not satisfied that the supply and installation of the pump set was not carried out in a proper and proficient manner, or was faulty or unsatisfactory in circumstances giving rise to liability on the part of the respondent, and declined to make any order.

Introduction

The applicant, the Owners of Strata Plan No 47111 (owner), is the strata company responsible for the control and management of the common property associated with a new ninestorey commercial and residential development in West Perth. The building was constructed by the respondent, Pyramid Constructions Pty Ltd (builder).
The owner's complaint concerns the operation and suitability of a water pump set installed by the builder on the roof of the building. The pump set consists of three pumps, a pressure valve and an electrical control panel. The owner alleges that, even since prior to the handover of the building, the pump set has not operated properly, or otherwise has been shown to be unsatisfactory for its purpose, resulting in constant fluctuation in water pressure, whether hot or cold water is being used, 'surges' of hot water constituting a danger to residents, and excessive noise associated with the pumps cutting in and out.
The evidence disclosed the existence of physical damage to the pump set equipment, including:
•damage to the control module, which was replaced prior to handover of the building and which has recurred;
•deflation in the pressure vessel; and
•wearing of ball bearings in the pump.
The owner's complaint is confined to workmanship matters under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BS(CRA) Act). The jurisdictional limitations under the Home Building Contracts Act 1991 (WA) would preclude any contractual claim under that Act.
The question for us is whether we can be satisfied that the building work associated with the installation of the water pump set has not been 'carried out in a proper and proficient manner' or is 'faulty or unsatisfactory' under s 5 and s 38 of the BS(CRA) Act. If so, we can make a building remedy order. The type of building remedy order sought by the applicant under s 36 of the BS(CRA) Act is an order for rectification.

Issues

Based on the filed documents and submissions of the parties at the hearing, it is necessary for us to consider the following issues in arriving at our decision:
1.The relevant contractual terms, facts and circumstances concerning selection and installation of the water pump set.
2.The identification of problems experienced and their cause/s, with reference to action taken by the builder upon becoming aware of the problems.
3.Whether, in light of our consideration of the preceding issues, the builder should be held responsible for the problems sounding in a rectification order.

Factors governing selection and installation of the pump set

The principal contractual documents in evidence before us were a standard form (Royal Australian Institute of Architects and Master Builders Australia Incorporated) major works contract (major works contract), specification of works (specification), and a selection of the plans and drawings of the building project.
We will make mention of specific provisions in the major works contract, the specification, and the separate hydraulics specification which are of significance.
The major works contract specifies a contract price for the works of in excess of $14,000,000. Under 'Introduction', the owner and the builder are identified, in the latter case as 'the contractor'. Item 2 of the introduction, entitled 'The architect' in the standard form, has had 'designer' substituted by hand, where it is noted that the contract is to be administered by Campion Design Group. The major works contract contains a number of terms concerning the function of the 'architect', which, in context, is to be read as relating to the nominated designer.
Under item 6 describing 'The works', the major works contract is expressed to be for the works set out in the contract documents, briefly described as a ninestorey residential and commercial building with one storey of car park and office on the ground floor and car stacker system to rear of the second floor level. The contractor's obligations are found under 'Section G - Building the works', in terms that:
The contractor's obligations in relation to building the [works] include the following:
•to set out the [works] and to have the setting out certified by a licensed surveyor
•to direct the manner of performance of the necessary work
•to supervise the necessary work competently
•to maintain satisfactory industrial relations in relation to the [works]
•to maintain a satisfactory occupational health and safety system on the [site].
The specification commences with the following general provision (A.1.01):
This specification together with the accompanying drawings shall be taken as covering all the requirements for the proper erection of this buildings [sic] in a sound and workmanlike manner, and the Contractor on signing the Contract undertakes to comply with the true intent and meaning of the Plans, Details and Specifications, and to supply all materials as enumerated herein to be supplied by the Contractor and to provide workmanship required to complete the building.
Under 'consultants' (A.1.05) the hydraulics engineer is recorded as Hutchinson Associates.
Appendix E to the specification is the Hydraulic Services Specification (hydraulics specification).
Under the heading 'Scope Of Work', cl 1.2 of the hydraulics specification stipulates:
The work included in this section is the supply of all labour and material for the execution of Hydraulic Services work indicated on the drawings and[/]or specified herein.
Sanitary Fixtures
Taps and Valves
Waste and Vent Pipes
Domestic Cold Water Service
Domestic Hot Water Service
Fire Service
Sanitary Drainage
Stormwater Drainage
Gas Service[.]
Clause 1.3 provides that:
A set of working drawings showing the various Hydraulic Services will be issued with the contract documents.
…
Deviation from the drawings will not be permitted unless approval from the Architect is obtained in writing.
Clause 1.4, under 'Regulations', refers to '[t]he whole of the Hydraulic Services installation' being carried out in accordance with relevant bylaws and the Building Code of Australia. It goes on:
Notwithstanding the foregoing, the whole of the Hydraulic Services installation shall be to the entire satisfaction of the Architect.
Clause 1.15 of the hydraulics specification headed 'Contract Maintenance' provides:
In addition to the requirements of maintenance during the defects liability period, provide all necessary operating and preventive maintenance required for the period of the defects liability period to service items of mechanical equipment, boilers, hot water units etc, supplied and installed in the execution of the Hydraulic Services work.
The following further provisions of the hydraulics specification appear under the headings 'Workmanship' and 'Materials' respectively:
2.1 Generally
Workmanship shall be of a high standard and each section of the work shall be properly and neatly executed to the best current trade practice.
…
3.1 Generally
Materials used shall be the best of their respective kinds manufactured in accordance with the relevant Australian Standard Specification …
All materials shall be checked for quality after delivery to site and before installation. Any defective material is to be rejected and removed from the site.
An incomplete copy of the entire plans was provided. Three sheets are worthy of note.
The plan of the eastern elevation indicates a water tank on the roof of the building, but without reference to the pump set or its associated apparatus. Immediately below the words 'water tank' appears 'refer hydraulic'.
The 'roof plan' also depicts the location of a water tank without reference to the pump set or its apparatus.
A drawing entitled 'Hydraulic Services Typical Unit Details', bearing Drawing No HS10, contains a number of details containing reference to the aspects of hydraulic services referred to in the hydraulics specification. Relevantly, it contains a 'water services diagrammatic' which does depict the pump set, albeit without identifying its location (although it is shown as adjacent to a tank, described as 'allied panel tank 4 [cubic metres]'). The annotation of the pump set itself is:
Allied prepackage variable speed tranfer [sic] pressure pumpset
Duty = 3l/s @ 400kPa[.]
Although we were informed that one of the drawings forming part of the plans and specifications, referred to as Drawing No HS9 and forming part of Exhibit 2, showed the location of the pump set on the roof, all our examination of that drawing reveals is the location of a water tank. Perhaps it might be expected that the pump set would be located adjacent to the water tank, but it does not appear on the drawing itself. Obviously, in those circumstances, neither does the drawing depict any weather shelter for the pump set or its apparatus.
It is not disputed that the actual source of the selection of the pump set was the supplier, Allied Pumps, upon being approached by the builder's plumbing contractor, Mr Geoff Gunn. Mr Gunn says that he was provided with various drawings and specifications, including Drawing No HS10. Both Mr Gunn and Mr Joel Sharpe, a sales engineer for Allied Pumps, gave evidence to the effect that the pump set supplied complied with the duty requirement noted in Drawing No HS10 for the apparatus.
The pump set actually supplied is described in a letter (at pages 64 66 of the book of documents Exhibit 1) as 'package DCW variable speed pressure system'. This quotation, dated 20 November 2006, was to Mr Gunn's plumbing firm. Upon being questioned about this quotation, in light of evidence contained in Mr Gunn's written statement that he first became involved with the project in July 2007, Mr Gunn explained that the quotation had arisen as a result of his pricing the plumbing aspects of the project for other builders.
The quotation letter contained a note in respect of this particular apparatus in the following terms:
2.0 Pumping equipment should be protected from weather and direct sunlight.
It also seems to be the case that, at the time of the acquisition of the pump set and prior to its installation, neither Allied Pumps nor Mr Gunn was aware that it was to be installed on the roof of the building. Mr Sharpe informed us that, had Allied Pumps known of this, it is likely that it would have offered options of a completely weatherproof treated unit, or 'the basic unit in the spec' (namely, the pump set supplied) with an option to upgrade to weatherproof. In either case, a price increase would have been involved.
Mr Gunn, when questioned in relation to his knowledge of the location of the equipment, said that Drawing No HS10 does indicate that the pump set is going on the roof (which, as we have said, is problematic), but added that he had no knowledge of any building structure that was going to be around it. Both he and Mr Sharpe said that, to have an exposed pump set on the roof of a building completely unprotected is virtually unheard of. Mr Sharpe said that it is the usual case that the pump set will be housed in a pump room.

The problems, their causes, and the builder's responses to them

As we have indicated, the principal manifestations of the problems of which the owner complains are serious inconsistencies in water pressure and excessive noise. As we also recorded earlier, in addition to the operational difficulties, instances of physical damage to the water pumping equipment are relied upon.
The way in which the owner appears to have approached the question of identification of the problems and their causes is to rely almost entirely upon the contents of a report prepared, subsequently to the lodging of its complaint with the Building Commission, by a plumber inspector appointed by the Building Commission. In his report dated 6 October 2011, the inspector, Mr Malcolm Jarrett:
•stated that he visited the development site on 5 October 2011 accompanied by compliance officer Mr Steve Walding;
•observed that, on inspecting water flow from a kitchen sink tap in one of the apartments, the flow fluctuated from strong to weak every few seconds, and that the booster pumps on the roof could be heard stopping and starting continuously;
•noted that, on closer examination, two of the pumps were seen to be cycling on and off, with the other pump on standby;
•stated that the air cushion in the pressure vessel was completely deflated, with only water coming out of the valve;
•suggested that the owner arrange for a pump repair company to attend to the defect as soon as possible, due to the possibility of extreme wear to the pumps from continuously cycling;
•informed the owner 'this is [a] maintenance item which should be attended to on a regular basis when the pumps are serviced'; and
•advised the owner that the pumps are suitable for the work they do, but perhaps are not suitable for the location, being installed on the roof without weather protection. Protection could be achieved by constructing a roof or shelter over the pumps, but 'this will be a decision for the owners in consultation with the builder'.
The suggestion for the attendance by a pump repair company was followed, as evidenced by a quotation (Exhibit 1 page 61) of Allied Pumps dated 17 October 2011 for $17,505.40 inclusive of GST. The price quoted was expressed as a 'pump system up-grade', and was to include:
-Attend site and remove existing faulty controller from pump system.
-Supply and install new weather proof, stainless steel controller to pump system c/w rain hat and sun shields.
-Reconnect pumps.
-Supply and fit rain hats to pumps.
-Supply and install new pressure vessel.
-Supply and install one new check valve.
-Remove pump two and return to Allied Pumps work shop.
-Repair pump.
-Return to site and reinstall repaired pump.
-Test operation and commission system on completion.
Allied Pumps had previously quoted (Exhibit 1 page 19) on 2 June 2011. This earlier quotation was for a lower amount, and omitted the references to a new pressure vessel and check valve and repairs to pump two.
Unfortunately, evidence of an appropriate level of expertise connecting the physical and operative issues is virtually nonexistent. Similarly, there is very little expert evidence, as opposed to what might be regarded as laypersons' speculation, about causation generally. The attitude of the owner appears to be that the builder's overarching responsibility for adequate equipment having not been satisfied, there was no necessity for it to establish why the problems were occurring.
We now turn to the responses of the builder to the problems as they arose. As we indicated earlier, these commenced prior to practical completion of the building, when the control panel to the pump set failed. The control panel was replaced with an identical control panel. The evidence indicates that when this occurred, a suggestion emanated from Allied Pumps that, given the exposed position of the pump set, the equipment should be protected by a shelter. The builder informed representatives of the owner of this suggestion, in particular, at a site meeting on 26 November 2009 attended by representatives of, amongst others, the builder and the owner's designer, Campion Design Group. Mr AnthonyChillino, the builder's construction manager, states in his written statement:
On 26 November 2009 at a meeting with CDG, Pyramid informed CDG that Allied Pumps had told them there was a need for a shelter for the Pump. At the meeting CDG confirmed [it] would investigate.
This evidence is corroborated by minutes of the meeting (Exhibit 1 page 347).

What then occurred is disclosed in the following passage from Mr Chillino's statement, which is unchallenged by the owner, but is subject to the slight modification regarding the 'quote' from Allied Pumps (referred to in cl 5.10 and cl 5.11) referred to below:
5.7On 21 December 2009 Pyramid received an email from CDG confirming that protection was needed for the Pump and instructing Pyramid to obtain a quote to carry out the additional works. Attached at APC6 is a copy of that email.
5.8Later, on 21 December 2009 CDG provided Pyramid with a sketch of a proposed shelter for the Pump. Attached at APC7 is a copy of the email and sketch.
5.9Given the height of the roof and wind loads, a sketch was not sufficient and any type of protection shelter or structure needed to be engineered. Every other structure for this project had engineering details.
5.10On 11 January 2010 pursuant to CDG's instruction, Pyramid obtained a quote from Allied Pumps for a protection shelter. Attached at APC8 is a copy of that quote.
5.11On 12 January 2010 Pyramid provided CDG with the quote from Allied. This quote did not include any profit or margin for Pyramid. Attached at APC9 is a copy of the email to CDG dated 12 January 2010.
5.12The Contract Sum for the Works did not allow for the supply and installation of a protection structure for the Pump as this had not been designed or included in the drawings and specification.
5.13CDG did not instruct Pyramid to install any shelter or protection structure.
The emails referred to in cl 5.7 and cl 5.8 of Mr Chillino's statement comprise an exchange between Mr Sanbrook of Campion Design Group and Mr Chillino and Mr McCauley of the builder, in which Mr Sanbrook appeared to accept the need 'to get something sorted as far as protecting the equipment on the roof', proposed a 'simple 3 sided structure', and provided a sketch of such a structure superimposed on a photograph of the pump set. The emails conclude with Mr Sanbrook requesting the builder to request Allied Pumps for a recommendation. Subsequently, as disclosed by emails between the builder and Mr Sharpe of Allied Pumps (Exhibit 2 pages 355 359), the latter recommended a more substantial structure than that suggested by Mr Sanbrook, being a shelter covered on the roof and all four sides with removable panels for servicing. On the builder's request to price such a structure, Mr Sharpe arranged for a price indication (not a formal quote) from a canopy manufacturer, which came back at $6,100 exclusive of GST for supply and installation. On 12 January 2012, the builder requested Mr Sanbrook to confirm that the indicative price was acceptable, in order to proceed with a formal quotation as soon as possible. Based on the evidence, this was the last communication between the parties or their representatives in relation to a shelter for the equipment. No shelter was ever installed.

Are the ongoing problems attributable to any failure of the builder answerable by a building remedy order?

Although the builder does not dispute either the operative difficulties or the physical defects upon which the owner relies, it rejects the owner's primary submission that those defects establish a failure on the part of the builder to comply with its obligation 'to deliver a building with a plumbing facility suitable for its environment'. It does so for at least four reasons. Firstly, the major works contract was a construct contract, not a design and construct contract, and the design of the plumbing works was provided by the developer. Secondly, the builder provided a pump set which adequately performs the function required by the plans and specification. Thirdly, the defects can be attributed to a failure to maintain the equipment; maintenance being the owner's obligation. Fourthly, the failure to instigate the recommended installation of a weather protecting shelter occurred by reason of a lack of necessary instructions by the owner or its representative.
The owner's complaint is brought under s 5(1) of the BS(CRA) Act, which is in the following terms:
Subject to the regulations, a person may make a complaint to the Building Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory.
There is no issue about the work performed by the builder pursuant to the major works contract constituting a regulated building service.
Section 38 of the BS(CRA) Act sets out the powers of the Tribunal on the referral to it of a building service complaint (defined as a complaint brought under s 5(1) of the BS(CRA) Act) by the Building Commissioner, as occurred in this case.
Section 38(1) states:
(1)If the Building Commissioner refers a building service complaint to the State Administrative Tribunal, the Tribunal may -
(a)if the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, deal with the building service complaint by making a building remedy order; or
(b)otherwise, decline to make a building remedy order.
'Building remedy orders' are dealt with by s 36 of the BS(CRA) Act.
Section 36(1) provides:
(1)A building remedy order consists of one of the following -
(a)an order that a person who carried out a regulated building service remedy the building service as specified in the order;
(b)an order that a person who carried out a regulated building service pay to an aggrieved person such costs of remedying the building service as the Building Commissioner or State Administrative Tribunal, as the case requires, considers reasonable and specifies in the order;
(c)an order that a person who carried out a regulated building service pay to an aggrieved person a sum of money specified in the order to compensate the aggrieved person for the failure to carry out the building service in a proper and proficient manner or for faulty or unsatisfactory building work.
The owner has opted for an order for rectification in accordance with s 36(1)(a) above.
Although there will be cases where the intrinsic nature of a physical defect, or an operational deficiency, associated with a regulated building service leads inevitably to the conclusion that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, this is not always the case. One example where it will not be is where the defect or deficiency is attributable to a design feature for which the builder is not responsible.
Central to the controversy before us is whether or not the builder can be liable for a hydraulic installation which, in all respects, is consistent with plans and specifications with which it was presented.
In Cable (1956) Limited and Hutcherson Bros Pty Limited (1969) 123 CLR 143 (Cable), a High Court decision upon which the builder relies, Barwick CJ, at 149 150, distinguished between a promise by a builder to produce a result - in the case before his Honour that the storage bins forming part of the construction project would be capable of receiving, holding and discharging a required volume of material - and the builder's promise to do only the work in the agreed drawings, the owner being satisfied upon its own engineer's advice that work so done would have that result. The then Chief Justice also emphasised that which applies will depend primarily on the terms of the agreement between the parties. On the facts in Cable, the Justices were unanimously of the view that the builder promised no more than to carry out the specified work in a workmanlike manner, entitling it to payment of the contract sum, despite the storage bins being unfit for their purpose by reason of a design flaw affecting the performance of their foundations.
A different result was obtained in Henry Michael Lyons & Ors v Jandon Constructions (A Firm) & Ors [1998] WASC 224 (Lyons), a decision of the Supreme Court of this State. There, a builder was found to have breached its contractual obligation to perform building work '… in a proper and workmanlike manner and in accordance with the drawings, plans and specifications … agreed between the parties' where the house it had constructed subsided as a result of inadequate and wrongly designed footings. An important factor in the reasoning of Anderson J was that the actual foundation design did not emanate from the owner, but from an engineer engaged by the builder after the local government authority issued a notice requiring the submission of an engineer's design for the footings. In this way, the design of the footings became part of the building works.
In our view, the agreement between the owner and the builder was more akin to the situation in Cable than that in Lyons. The builder played no role in the requirements for, or location of, the hydraulic equipment. The building drawings provided by the developer were, at best, ambivalent about where the pump set was ultimately to be located. They did, however, prescribe the 'duty' of the prepackaged pump set, which was met by the equipment supplied by Allied Pumps to Mr Gunn, after the latter had provided Allied Pumps with all drawings and specifications at his disposal. Apart from the option of a waterproofed version of the equipment supplied (to which we will return), there appeared to be only one available Allied Pumps prepackaged pump set meeting the duty criteria. In other words, the 'selection' by Mr Gunn, or his supplier, Allied Pumps, was a selection without alternative.
A further matter of significance is the central role of the 'Architect' (in context, the owner's design consultant) in the installation of the hydraulic services – we have in mind the oversight of 'the whole of the Hydraulic Services installation' by the designer, and the need for the designer to approve any deviation from the drawings of any hydraulic services, for which cl 1.4 and cl 1.3 of the hydraulic specification, respectively, provided.
In saying that the contractual situation regarding the pump set is closer to Cable than Lyons, the result does not automatically follow that the builder avoids liability. We will refer to a potential basis of liability shortly. However, the owner's assertion of the builder's liability, founded simply upon its failure to provide a building with a plumbing facility suitable for its environment, demonstrated on proof of the physical defects and operational problems, cannot succeed, because of the builder's lack of culpability for the design of the equipment it was required to install.
It is true, as the owner contended, that a builder, not being responsible for the design of any aspect of a building, might yet become liable where a competent builder would have brought a defect in design to the attention of the owner. However, we are unclear as to which aspects of the design the owner says the builder should have brought to the owner's attention, in circumstances where the owner has failed to properly identify the causes of the problems themselves.
Although there was a vague suggestion that it was up to the builder to advise the owner that the equipment supplied as meeting the duty requirement was unsatisfactory and should be substituted, perhaps with a weatherproof version of the same equipment, the lack of evidence about causation prevents us from accepting any such suggestion. The extent of the expert evidence going to the issue of a weatherproof shelter and weatherproof equipment is limited to the extremely qualified reference in Mr Jarrett's report, supported, to some extent, by the nonexpert evidence on that issue of Mr Sharpe and Mr Gunn, alluded to above. That evidence raises more questions than answers. Would the weatherproof equipment operate satisfactorily when the standard equipment did not? Was the option of a shelter an adequate solution? In the absence of answers, based on cogent evidence to these questions, we cannot be satisfied of the substance of any warning that the builder can properly have been expected to make.
The owner submitted that the builder is answerable for the omission of its plumber, Mr Gunn, to bring to its attention the note regarding desirability of protection from weather and direct sunlight in the quotation letter of Allied Pumps dated 20 November 2006, which Mr Gunn acknowledged having received, albeit before the respondent came into the picture as the builder. It was also made clear in its crossexamination of the builder's witnesses that the owner attributes fault to the builder, based upon the lack of weatherproof protection for the pump set facility, as part of its 'failure to deliver a building with a plumbing facility suitable for its environment' submission.
There are, in our view, two insuperable obstacles to liability arising on either basis: firstly, the lack of evidence establishing that a shelter would have avoided the problems experienced; and, secondly, the clear evidence that, subsequent to a problem being experienced with the controller in November 2009, the builder took a number of steps to bring such a shelter to fruition, culminating in seeking instructions (consistent with the provisions of the hydraulic services specification alluded to above) from the owner's designer whether or not to proceed down that path. The builder can hardly be held responsible for the failure of the owner or its agent to respond. Further, there is no reason to think that any suggestion for a shelter made to the owner prior to the commissioning of the pump set would have met with the approval of the owner or its agent, when it failed to do so in the circumstances alluded to.
For the sake of completeness, we cannot, on the owner's unchallenged evidence of the problems with the pump set, accept the builder's submission that the pump set provided adequately performs the function required by the plans and specifications. Perhaps what was intended to be conveyed by this submission was that the builder supplied and installed the pump set in accordance with the contractual documents in a proper and workmanlike manner, as to which, having regard in particular to the hydraulics specification provisions reproduced earlier, we are able to accept. However, on the question of attribution of responsibility for those problems, the builder avoids liability for the reasons we have given.
The parties' competing submissions about an alleged failure to maintain the equipment stemmed from the reference in Mr Jarrett's report to the deflation of the pressure vessel being a 'maintenance item'. How such a characterisation fitted into the overall picture of causative factors of all the problems was left in the air. If, indeed, the deflated pressure vessel was simply a maintenance defect which became evident during the contractual maintenance period, presumably the owner would have exercised its contractual right of repair. In any event, the evidence relating to it is insufficient to satisfy us to the extent required by s 38(1)(a) of the BS(CRA) Act to justify a building remedy order.

Conclusion and order

For the above reasons, we cannot be satisfied that the regulated building service the subject of the owner's complaint - the installation of the pump set and its associated apparatus - either has not been carried out in a proper and proficient manner, or is faulty or unsatisfactory. That being the case, there will be an order in the following terms:
1.The Tribunal declines to make a building remedy order.

I certify that this and the preceding [65] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER