PATERSON and MERYM PTY LTD T/As EMCO BUILDING - [2013] WASAT 124

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

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

CITATION: PATERSON and MERYM PTY LTD T/As EMCO BUILDING [2013] WASAT 124

MEMBER: MR T CAREY (MEMBER)
MR C PARKER (SESSIONAL MEMBER)

HEARD: 22 APRIL 2013

DELIVERED : 9 AUGUST 2013

FILE NO/S: CC 87 of 2013

BETWEEN: KIM PATERSON
Applicant
AND
MERYM PTY LTD T/As EMCO BUILDING
Respondent

Catchwords:

Building dispute Residential unit Claims that building works faulty or unsatisfactory Balcony floor Negative fall Drainage Water ingress through join between balcony floor and walls to underlying garage Whether excessive watering responsible

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 36(1)(b)

Result:

Application successful in part

Summary of Tribunal's decision:

The applicant sought a remedial work order in relation to complaints of defective building work applying to her residential unit. The complaints concerned a lack of fall of a balcony floor, inadequate drainage from the floor and a problem with water ingress from the balcony floor to a garage below.
The Tribunal considered the evidence, which largely supported the applicant's claims, and made remedial work orders for remediation of the claims about which it was satisfied. In relation to the water ingress claim, it rejected the respondent's contention that the problem was the result of excessive watering of plants on the balcony on the basis that this did not alter the fact that the respondent had failed to meet the requirement that the building provide resistance to external moisture that is, be waterproof.

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Self-represented

Solicitors:

Applicant: N/A
Respondent: N/A

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

Nil
REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Ms Paterson makes three complaints under s 5(1) Building Services (Complaint Resolution and Administration) Act2011 (WA) (BS(CRA) Act) concerning a tiled balcony floor forming part of her residential strata unit in Rockingham:
1)the floor does not slope in all places towards the drain hole;
2)the floor is inadequately drained from the same drain hole, including the related complaint of a slightly raised waste grate; and
3)that waterproofing or sealing of the balcony is lacking or has failed.
Ms Paterson also complains of water ingress through the balcony floor into the garage below.
Ms Paterson's unit is part of a 21 unit complex constructed by the respondent, Merym Pty Ltd, trading as EMCO Building (builder). Practical completion of the development occurred in October 2007.
Ms Paterson seeks a remedial work order against the builder in accordance with s 36(1)(b) of the BS(CRA) Act in respect of each item of her complaint.
We will deal with each complaint item in turn.

Inadequate falls of balcony floor

Ms Paterson relies upon the observations and opinion of Inspector Martelli, a Building Commission inspector, included in the hearing book (Exhibit 1) commencing at page 20.
The Inspector in his report described investigations he carried out by way of a digital level and water test, as a result of which, in respect of this complaint, he found that:
a)the fall ratio of the balcony floor is satisfactory, except for a negative fall in one section adjacent to the left side of the floor waste; and
b)ponding of water is occurring in the same area.
Inspector Martelli concludes in his report:
… While the retention of water from surface tension on the tiled surface can be expected given the balcon[y's] exposure to the elements and large surface area, (as too much floor slope is not considered practical for furniture placement and general usage); the ponding of water still evident after 15 minutes from exposure is considered unsatisfactory and contrary to the Building Code of Australia volume two, part 3.8.1.10 Wet Area Floors which states:
'Where a floor waste is installed, the floor must be constructed so that water flows to the waste without ponding'.
The Inspector's recommendation is that the builder undertakes remedial works to prevent the ponding in accordance with the Building Code of Australia (BCA) requirement. (We note that the BCA is now incorporated into the National Construction Code 2013 (NCC), although this was not the case at the time of the construction of Ms Paterson's unit).
The builder's written responses assert that the balcony floor is even to an acceptable standard, associate the pooling with the raised drain fitting, and indicate that excessive watering of pot plants on the balcony (a major consideration in its response to Ms Paterson's third complaint regarding the balcony and the water ingress in the garage) causes or contributes to the pooling problem.
In addition, the builder contends that the Inspector's reference to BCA clause 3.8.1.10 is inappropriate, because the clause applies to 'Wet Area Floors' in Class 1 and Class 10 buildings, and Ms Paterson's external balcony is not such a floor. Although, under crossexamination, Inspector Martelli conceded the point about the balcony not being a wet area floor, his evidence was to the effect that good building practice required that the clause applying to internal wet areas be observed equally in this case, given that the balcony is located above an internal area (the garage).
The builder conceded before us that one of the falls towards the drainage is negative.
We are satisfied, particularly having regard to the Inspector's evidence, that there should not be any negative fall in respect of any part of the balcony in question, and that the presence of such a fall amounts to faulty and unsatisfactory work. There will be a remedial work order in terms similar to the action recommended by the Inspector.

Inadequate drainage 'raised lip of drain hole'

The claim that the drainage is inadequate refers to the ability of the drainage system beneath the balcony floor drain hole to dispense with its water load.
Ms Paterson did not produce any evidence of any such inadequacy. Inspector Martelli's report notes:
The Inspector did not observe any deficiency in the drain's ability to disperse water at the time of inspection …
That being the state of the evidence, no order will be made on the claim of inadequate drainage.
The builder admits the complaint regarding the raised floor waste grate. There will be a remedial work order to adjust the level of the grate to that of the adjacent tile floor.

Lack or inadequacy of waterproofing or sealing of balcony floor/water ingress into garage

We deal with these items together because, as the matter was argued, there was acceptance that the cause of the two complaints concerned the ability of the structural concrete member between the balcony and the garage to resist water.
The technical expert evidence relied upon by Ms Paterson is again that provided by Inspector Martelli in his report. The relevant passages specific to the complaint regarding the balcony are reproduced here:
Without the use of a destructive investigation the inspector was unable to determine if waterproofing has been completed to the balcony; however it appears evident that the waterproof membrane if installed has been breached in multiple locations due to the staining observed to the garage soffit located directly below which appears consistent with moisture ingress.
It is questionable whether the waterproof membrane has been installed in accordance with the Building Code of Australia, Australian Standard 3740 and the manufacturer's recommendations. Moisture ingress has occurred in multiple locations of the perimeter and central soffit. Any minor settlement and movement of the building should be accommodated by the use of a flexible membrane and suitable bond breaker installed to all junctions of dissimilar materials and change of direction. Where excessive movement or cracking has occurred generally exceeding 1mm, it is considered to be beyond the scope of home owner's maintenance and therefore assessed as unsatisfactory.
The complainant in an attempt to prevent further moisture ingress has applied flexible sealant in multiple locations, however if the source of moisture ingress is not rectified deterioration of the building fabric will continue particularly considering its close proximity to the coastal environment.
It was also noted that the balcony floor tiling which did not return over the door sill may be contributing to the ingress of moisture due to the brick sill sloping towards the door opening and the presence of gaps visible to the mortar pointing.
The action recommended by the Inspector arising from these findings is:
The respondent is to ensure that the remedial works to prevent moisture ingress to the soffit below is completed in accordance with the Building Code of Australia, Australian Standard 3740 and manufacturer's recommendations. …
The use of a flexible sealant applied to the perimeter without incorporating a complete waterproof membrane system is not considered a long lasting remedy.
In relation to the water ingress into the garage, the Inspector accepted the confluence of causation in relation to that complaint and the complaint regarding waterproofing of the balcony floor. The action he recommends is in identical terms to the first paragraph from the passage reproduced above.
The Inspector elaborated on some aspects of his report under crossexamination and in response to our questioning, and in one respect suggested a further breach of the BCA.
Inspector Martelli discounted the prospect, alluded to in his report, of excessive movement or cracking associated with settlement of the building in question.
The Inspector was crossexamined in relation to the possible impact of excessive watering via a reticulation system of Ms Paterson's tenant, and sedimentary matter leaching from pot plants on the balcony. His evidence was to the effect that watering, even excessive watering, was not significantly different from heavy rainfall to which the balcony is exposed, with each resulting in moisture ingress to the garage. He stated that sedimentary deposits should have no effect on the operation of the building structure.
Inspector Martelli referred to clause 2.2.2 of the BCA, which, at the time of the construction provided:
A building is to be constructed to provide resistance to the moisture from the outside and moisture rising from the ground.
The builder refutes the claims of faulty and unsatisfactory workmanship and breach of the BCA.
In particular, the builder submits, in its written responses and witness statements:
a)During the construction period, the works were inspected and passed by the structural consulting engineer for the project. Further, the grant of the practical completion certificate by the superintendent's representative signified the works complied with the requirements of the contract drawings and specifications for the development.
b)No report of water penetration into the garage occurred for five years after practical completion.
c)The exposure of the balcony floor for a period of 14 to 16 months up until March 2013 to regular automated reticulation, depositing a significant volume of water on each occasion, along with dissolved chemicals and sedimentary materials, provides the explanation for the water penetration problem.
d)The Inspector's reliance upon the BCA and Australian Standards provisions is misplaced.
e)The Inspector's comment regarding the construction of the balcony floor tiling not returning over the doorsill is unjustified.
f)There are no other cases within the complex of a similar water ingress issue.
We became concerned at the hearing about any contractual stipulation for waterproofing between the balcony and the surrounding walls, and directed that the builder provide all the building contractual documents including architectural and engineering drawings relevant to the liability of the builder as alleged by Ms Paterson. Subsequent to a set of documents furnished by the builder as directed, the builder was once again requested to check the drawings provided in order to confirm or otherwise that no architect's cross section drawing detailing the balcony floor and wall surrounds for Ms Merym's unit was included. The builder did confirm this to be the case.
We are surprised that the drawings supplied do not detail a waterproof membrane between the brickwork and concrete floor, being two dissimilar materials. The only stipulation for any particular action to waterproof the balcony is the specification for a waterproofing additive to the concrete used for exposed balcony slabs over habitable rooms, garages and stores. The builder says this was complied with, and we have no reason to doubt this in light of the matters referred to in the builder's response (a) referred to above.
There still remains the question of whether a prudent builder would have taken additional steps to ensure that water could not penetrate through where the balcony floor meets the walls, which, going on Inspector Martelli's unchallenged evidence, is clearly the source of the water ingress to the balcony soffit.
We are satisfied, based on the Inspector's report and evidence at the hearing, that the junctions of walls and concrete floors over an enclosed balcony should be waterproofed in a manner akin to an internal wet area, despite the Australian Standard to which he referred not having specific application. Being exposed to rain and sun, there is, as a matter of common sense, a greater potential for movement in the adjoining structural members, suggesting that the same strict waterproofing regime should be applied in order to ensure the joins are properly sealed. The BCA requirement that did apply at the time of construction required that the building provide resistance to the moisture for the outside.
The gravamen of the builder's rejection of liability is that the water ingress issue is attributable to the excessive regular watering undertaken by the current tenants of Ms Paterson's unit. Our response to this is that although a lesser amount of watering is likely to reduce, or possibly eliminate, the incidence of leakage through to the garage soffit, the fact is that the watering of plants on the balcony has exposed the fact that the balcony is not waterproof.
There is no technical or scientific evidence to support the builder's claims about chemicals and sediment from the pots contributing to the leakage problem. In the absence of adequate waterproofing, we are not persuaded that they have compromised the barrier, such as it was, between the balcony and the garage.
The builder will be ordered to ensure that the junction of the balcony floor and adjoining walls is made resistant to water from the outside, in accordance with the BCA at the time of construction. We note that this is somewhat at variance with the Inspector's recommendation, consistent with our reasoning expressed above.
The subject matter of the note in Inspector Martelli's report about the possible contribution to the water ingress problem of the balcony floor tiling not returning over the door sill has not been established by the evidence to constitute a separate building defect. We consider it likely that remediation of the waterproofing capacity of the joins as described above will eradicate the water problem. However, the builder might consider addressing any possible contribution that the lack of return of the balcony floor tiling over the door sill has made to the problem as part of its response to the remedial work order.

Order

The Tribunal shall issue an order in the following terms:
A.On or before 11 October 2013 the respondent shall rectify the faulty or unsatisfactory work at Unit 3, No 3 Sloan Street, Rockingham, as listed in the paragraphs below, the numbering of which corresponds with the numbered paragraphs of the inspection Report of Inspector Martelli dated 5 December 2012:
1.Balcony tiled floor
(a)Complaint: Falls not sloping towards drain hole.
Action required:
The respondent is to undertake remedial works to prevent the ponding of water in accordance with the Building Code of Australia.

(b)Complaint: Floor waste grate slightly raised.
Action required:

The respondent is to reset the floor waste grate to the height of the adjacent floor tiles.
(c)Complaint: Not waterproofed or sealed correctly. (Note: the action required in respect of this item is coextensive with the action required in respect of item 2).
Action required:

The respondent is to undertake remedial works to ensure that the junction of the balcony floor and adjoining walls is made resistant to water from the outside.
2.Garage
Complaint: Water dripping in garage.
Action required:

The respondent is to undertake remedial works to ensure that the junction of the balcony floor and adjoining walls is made resistant to water from the outside.

B.The respondent to make good any damage occasioned by compliance with order A above, on or before 11 October 2013.

I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER