PAYNE and ALLEGRETTA - [2010] WASAT 36

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION: PAYNE and ALLEGRETTA [2010] WASAT 36

MEMBER: MR P McNAB (MEMBER)
MR R AFFLECK (SENIOR SESSIONAL MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 16 MARCH 2010

FILE NO/S: CC 196 of 2009

BETWEEN: JACQUELINE ANN PAYNE
Applicant
AND
ALDO ALLEGRETTA
MARYANNE ALLEGRETTA
Respondents

FILE NO/S :CC 197 of 2009

BETWEEN :ALDO ALLEGRETTA
MARYANNE ALLEGRETTA
Applicants
AND
JACQUELINE ANN PAYNE
PAUL CHIDLOW
Respondents

Catchwords:

Building and construction - Faulty or unsatisfactory building work - Residential building - Whether work done in a proper and workmanlike manner - Review of order to remedy made by the Building Disputes Tribunal (BDT) - Application of Building Code of Australia (BCA) - BDT decision on roofing material - Acceptable corrosion protection for sheet roofing - Marine and coastal areas - Building located more than 100 metres from shoreline - Whether Colorbond standard or higher standard Colorbond Ultra or equivalents mandated under BCA - BDT holding that higher standard required to be installed by builder - Whether Safety Bay relevantly a 'severe' or 'moderate' marine environment - Application of concept of 'breaking surf' - Manufacturer's published views specifically classifying Safety Bay as 'exposed marine' but not subject to 'breaking surf' - BDT holding that all coastal areas subject to 'breaking surf' - Application for review allowed - Safety Bay to be classified relevantly as 'moderate' environment - Colorbond standard permitted under BCA - Order to remedy varied - Consideration of 2009 amendments to the BCA which clarify concept of 'breaking surf' - Words and phrases: 'breaking surf'.

Legislation:

Builders' Registration Act 1939 (WA), s 12A
Building Code of Australia

Result:

Application allowed and order to review varied

Category: B

Representation:

CC 196 of 2009

Counsel:

Applicant: Self-Represented
Respondents : Self-Represented

Solicitors:

Applicant: Self-represented
Respondents : Self-represented

CC 197 of 2009

Counsel:

Applicants: Self-Represented
Respondents : Self-Represented

Solicitors:

Applicants: Self-represented
Respondents : Self-represented

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

Builders' Registration Board of Western Australia and Elliott [2009] WASAT 44
Lombardi Investments (WA) Pty Ltd and City of Cockburn [2009] WASAT 65
Plunkett Homes (1903) Pty Ltd and Stephens [2007] WASAT 295

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In this review of a decision of the Building Disputes Tribunal, the central issue was the interpretation and application of a provision in the Building Code of Australia giving the builder direction as to the standard of roof coating to be installed in coastal and marine environments.
The builder (Ms Payne) had supplied and installed a BlueScope Steel roofing product known as Colorbond, or Colorbond standard. The owners (Mr and Mrs Allegretta) lived about 113 metres from the shoreline of Safety Bay. The Building Disputes Tribunal found that the work had 'not been carried out in a proper and workmanlike manner' because, in its view, the Building Code of Australia and BlueScope Steel required a more corrosiveresistant roofing material to be installed, namely Colorbond Ultra or its equivalent.
The Building Code of Australia divided coastal environments into 'severe' and 'moderate' and also focused on whether 'breaking surf' was prevalent. Importantly, BlueScope Steel itself in one of its technical bulletins classified Safety Bay as 'exposed marine' but 'not typically prone to breaking surf'.
The Building Disputes Tribunal held that the Building Code of Australia could not 'reasonably be construed to require builders to mount an exhaustive technical examination of the conditions of every local beach in order to interpret the [Building Code of Australia's] requirements for appropriate materials', and 'that any area of ocean coast falls within the definition of "breaking surf" regardless of protective outer or inner reefs, the direction of prevailing winds, sailing conditions or mooring status'.
The Tribunal allowed the review and reversed the BDT on these points, finding that the owners' house at Safety Bay 'was located more than 100 [metres] from salt water not subject to breaking surf' within the meaning of the Building Code of Australia, and was thus to be classified as a 'moderate' coastal environment in which Colorbond standard roofing was permitted.
The Tribunal noted that the Building Code of Australia had recently been amended to define 'breaking surf' and that that definition and commentary tended to support the conclusions reached by the Tribunal here, namely, that waves must break consistently and at significant levels, a phenomenon which, under the new definition, did not include 'white caps or choppy water'. Safety Bay could not be described as 'an open surf beach with crashing waves'.

The application and its background

On 10 February 2009, Mr Aldo Allegretta and Mrs Maryanne Allegretta (owners) lodged an application in this Tribunal (namely, proceeding CC 197/2009) for leave to review a decision of the Building Disputes Tribunal (BDT) in respect of a complaint made by them to the BDT in July 2007 against Ms Jacqueline Payne trading as 'Overhead Roofing Services' (builder).
The complaint to the BDT concerned certain roofing work performed by the builder on premises located at No 11 Edith Road, Safety Bay (house or subject land). As will be discussed at more length below, critically, the house is located over 100 metres from the waters of nearby Safety Bay.
In this regard, the owners originally told the BDT (in an attachment to their complaint to the BDT) that they were located 'approximately 150 metres from the beach'. The Builders' Registration Board inspector thought it to be approximately 175 metres '[s]caled off the map': see his report dated 24 October 2007. Information from the City of Rockingham, which was before the BDT, indicated that the house is located approximately 113 metres from the shoreline.
As far as it is relevant to these proceedings, in short, the allegation then (and repeated now) was and is, that due to the proximity of the house to the waters of Safety Bay, the builder ought to have used more corrosionresistant materials (that is, Colorbond Ultra roofing instead of Colorbond standard).
This was the essential finding of the BDT in favour of the applicants and against the builder.

The BDT's Order to Remedy

After various hearings and written submissions covering the period from February 2008 to November 2008, the complaint resulted in the issue by the BDT of an Order to Remedy dated 14 January 2009 (remedy order) that incorporated the BDT's written reasons, in summary form, for the making of the remedy order.
The BDT had found that s 12A of the Builders' Registration Act 1939 (WA) (BR Act) was applicable in several respects; that is, some of the work had 'not been carried out in a proper and workmanlike manner'. This review is not a contract case. Accordingly, the decision of a Magistrate on 7 February 2007 in favour of the builder on a debt recovery action finding in effect that the contract between the parties did not require the installation of Colorbond Ultra roofing sheets, does not control the outcome of this case.
Such a finding is, however, consistent with the BDT's finding (see below) that '[t]here is no evidence that the [builder] was specifically contracted by the [owners] to install "Colorbond Ultra" roof sheeting.' See also, the various quotes given to the owners by other builders, unlike the builder here, that specifically referred to the more expensive Colorbond Ultra.
In summary, the remedy order required as follows from the builder:
Item 1(a): the BDT ordered the replacement of certain roofing screws ('class 3 screws') because the screws did not conform to the manufacturer's recommendation as to the marine environment. This item is linked to item 1(b).
Item 1(b): the BDT ordered the replacement of the roof sheeting that had been installed for essentially the same reason. Standard Colorbond roofing sheets had been used instead of Colorbond Ultra (or its equivalent). This part of the remedy order was founded upon a consideration by the BDT of the standards for acceptable corrosion found in the Building Code of Australia (2006, ed) (BCA or BCA [2006, ed][)]. In addition, the manufacturer's recommendation, in effect, confirmed the same position.
Item 1(f): the BDT ordered the rectification of the edges of 'uneven and dangerous' roofing sheets. However, this matter would be incorporated with the replacement of the roof sheets under item 1(b), above. Restrictions were imposed upon who could carry out the work ordered to be done.
Complaints in respect of the remaining items were dismissed by the BDT: 1(c), (inbuilt flashing); 1(d), (flutter in box gutter); 1(e), (ridge tiles spacing) and 1(g), (roof frame).
Mr and Mrs Allegretta sought, if leave were to be granted, an order to pay instead of an order to remedy and a 'fresh start with an independent builder'.

The cross-action brought by the builder

On 11 February 2009, Ms Jacqueline Payne, trading as 'Overhead Roofing Services' (builder) lodged in effect a crossapplication (namely, proceeding CC 196/2009), seeking to have this Tribunal:
1.Grant leave to [review] orders 1(a) and 1(b) ('orders 1 (a) and 1 (b)') of the orders of the BDT made on 14 January 2009.
2.Grant a stay of orders 1(a) and 1(b) pending determination of [the] leave to [review] application and the [review] itself.
3.Set aside orders 1(a) and 1(b).
4.Further or alternatively, vary orders 1(a) and 1(b) so that any remedial work can be carried out by or under the supervision of Mr Paul Chidlow [a partner in or representative of the builder] and need only be carried out by the applicant [builder] upon payment first by the respondents [owners] of the difference in price between Colorbond and Colorbond Ultra of sheets [sic] as determined by SAT.
5.Otherwise dismiss the respondents' application under [s] 12A of the Builders' Registration Act 1939 (WA).
The builder was legally represented for part of the proceedings and, on 9 April 2009, obtained leave to substitute the following detailed grounds of review (as far as are relevant):
(a)[the BDT] misconstrued and misapplied the provisions of the Building Code of Australia (BCA) in finding that the dwelling of the respondents was within a 'severe environment' in terms of the BCA, so that the installation of Colorbond Ultra sheets was required. The BDT so found because it held the dwelling was within 1 km from 'breaking surf', on the basis stated by the BDT, namely that any area of the ocean coast falls within the definition of 'breaking surf' in the BCA regardless of protective outer or inner reefs, the direction of the prevailing winds, sailing conditions or [the] mooring status of the coastal waters - so regardless of the fact whether there is in fact any breaking surf on the ocean coast or not;
(b)further to (a) [the BDT] should have found on a proper construction of the BCA that the dwelling was in a 'moderate environment', not being within 1 km of any 'breaking surf' and otherwise being more tha[n] 100 m from salt water, as the dwelling was found by the BDT (as is the fact) to be between 100 and 200 metres from the ocean at Safety Bay and Safety Bay has no breaking surf within the meaning of the BCA, so that Colorbond standard was the appropriate roof covering;
(c)further to the above grounds, failed to take into consideration and apply the relevant Australian Standards (AS), namely AS 2312:2002, Guide to the Protection of Structural Steel Against Atmospheric Corrosion by the use of Protective Coatings, which specify the use of standard Colorbond (not Colorbond Ultra) in a location such as the dwelling of the respondents, falling within category c of the atmospheric corrosivity categories of that document;
(d)further to the above grounds, failed to take into consideration and apply the manufacturer's (BlueScope Steel [BlueScope]) Technical Bulletin TB-1a (June 2007) which specifies ordinary Colorbond to be installed in locations within 100 to 200 m from a calm marine environment, such as Safety Bay …
In addition, the builder submits as follows on the claim in respect of class 3 screws (item 1(a)):
The class 3 screws used for the roof sheets should not be replaced by class 4 screws, on the basis that the latter should be used with Colorbond Ultra sheets in terms of the manufacturer's recommendation, whereas Colorbond Ultra sheets were not required to be installed, as set out in [the amended grounds of review].
The various standards and marine categories referred to in this document are considered in more detail below.

Procedural history in SAT

The Tribunal determined that the two matters should proceed in tandem, and should be heard and determined together. A stay of the remedy order was granted by Senior Member Raymond on 16 February 2009. The Tribunal attempted mediation. This was unsuccessful, and on 16 October 2009, the Tribunal held an oral hearing into the question of leave in both matters. The Tribunal gave brief reasons in the matter and ordered as follows:
1.On the conditions set out in these orders, in proceeding CC 196/2009, Payne v Allegretta & Anor, leave is granted to review the Building Disputes Tribunal's decision and order dated [14] January 2009, limited to the correct construction of the Building Code of Australia standards for acceptable corrosion protection for sheet roofing and any associated or consequential issue, including as these issues relate to items 1(a)-(b) and (f) of the order.
2.Consequently, and subject to paragraph 3 of these orders, the grant of leave in proceeding CC 197/2009, Allegretta & Anor v Payne & Anor, is deferred until the result of the review effected by or under these orders.
3.For the avoidance of doubt, the dismissal of items 1(c)-(e) and (g) of the order by the Building Disputes Tribunal is not to be the subject of a grant of leave and these matters are not reviewable.
4.It is a condition of the grant of leave that, subject to these orders, the matter is to be determined wholly upon the documents.
5.Alternatively, the Tribunal orders the same, pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) …
Thus, by the terms of this order of the Tribunal, the only items of the BDT remedy order and decision capable of review, at the moment, are:
Item 1(a), whether the roofing screws are the correct grade for this particular coastal location.
Item 1(b), whether the roof sheeting is the correct grade for this particular coastal location.
Item 1(f), whether the edge of the roofing sheets is uneven and dangerous, and, if so, whether the remedy for item 1(b) would adequately address that issue.

The Building Code of Australia

As has been indicated above, the dispute essentially concerns the correct application of the provisions of the BCA, in particular, how the provisions are to be applied to the building work on the subject land (that is, the roofing of the house).
The BCA is the overarching building code for all building work in Australia and was adopted by the Western Australian Government on 1 July 1997. In Builders' Registration Board of Western Australia and Elliott [2009] WASAT 44, this Tribunal said, at [50]:
… It is correct [to say] that reg 5 of the Building Regulations [(WA)] has the effect of giving the BCA [the] force of law and obliges a builder to comply with its requirements.
The contract for the roofing work is dated 26 April 2006. The BCA is a 'living document' and is subject to ongoing amendment. The BCA (2006 ed) was adopted by the Western Australian Government on 1 May 2006. Hence, BCA (2005 ed), which was adopted on 1 May 2005, arguably might apply, at least to the contractual arrangements between the parties.
The BDT assessed the builder's workmanship by reference to the standards of the BCA (2006 ed) as being applicable at the point when the work was done. There is no error in that course and in this review, we intend to do the same. In any case, it appears that there is no material difference between the two editions of the BCA on the central questions in this review.
The BCA sets out various performance requirements. It is an extensive and detailed document. Speaking generally, compliance with these performance requirements may be achieved by complying either with the 'deemed to satisfy' provisions of the BCA, or by the formulation of an 'alternative solution' which complies with the 'performance requirements' (or is shown to be at least equivalent to the deemed to satisfy provisions), or by a combination of both.
It is unnecessary for the purposes of this review to set out the provisions of the BCA in this regard. They are discussed in, for example, Plunkett Homes (1903) Pty Ltd and Stephens [2007] WASAT 295, at [10]-[15] and in Lombardi Investments (WA) Pty Ltd and City of Cockburn [2009] WASAT 65.
The performance requirements of the BCA are in effect minimum standards and thus it is open to building designers to adopt higher standards of performance. Speaking generally, in cases of this nature, the issue will usually be whether work has been 'carried out in a proper and workmanlike manner' under s 12A of the BR Act and will be answered by a close examination of the standards found in the BCA and the application of those standards to the work in question.
In this matter, the BDT applied the BCA and other standards it thought relevant as follows:
Item 1(a):Roofing screws not correct grade.
The class 3 screws used do not conform with the recommendation of BlueScope Steel (technical bulletin TB -16, Table 1 (Fastener Materials for use with Roofing and Walling Manufactured from BlueScope Steel Strip and Sheet Products) [)], which states that fasteners conforming to AS 3655, class 4, should be used on Colorbond Ultra Steel Sheeting. Specifically, BlueScope Steel states [that] "Fasteners conforming to AS 3566, class 3, should not be used within 400 metres of the ocean or other severe marine influence".
The [builder] admits that the premises are between 100 and 200 metres from the ocean at Safety Bay.
We find the complaint proven to our satisfaction. The use of class 3 screws is in breach of s 12A of the [BR Act] …
Item 1(b):Roof sheeting not correct grade for coastal location.
There is no evidence that the [builder] was specifically contracted by the [owners] to install "Colorbond Ultra" roof sheeting. The written estimate of the [builder] dated 24 April 2006 for $4,361.00 plus GST does not specify the use of any particular roofing material.
The [owners] asked for a "suitable roof" and the [builder] has installed "standard" Colorbond roofing sheets. The [owners] complain that the [builder] should have used Colorbond Ultra in the coastal location of their home and that its failure to do so resulted in BlueScope Steel (the manufacturer) refusing to warranty the roof.
The issue for the [BDT] is whether or not the Building Code of Australia … imposes an obligation on the Respondent to use Colorbond Ultra (or similar material) in this location.
[The BDT then refers to and proceeds to summarise BCA (2006 ed) Table 3.5.1.1, which is set out below in these reasons.]
We find that the premises are within 1 km of breaking surf and the roof environment is therefore severe as defined under the BCA.
The BCA provides that metal coating for a severe roof environment must comply with AZ200 (ie steel is coated with aluminium zinc 200 gms per [square metre]).
The [builder] has installed 'standard' Colorbond roof sheeting which is coated AZ150 and does not comply with the BCA requirement for this location.
Location of the premises - general findings
The [builder] provided evidence on Safety Bay including [as to its] reef and wave formation[s], the direction of [the] prevailing winds, [the] sailing conditions, [its] mooring status, technical marine reports and other information to support its argument that the premises were not located within 1 km of breaking surf.
The [owners] provided photographs of waves breaking at Safety Bay within 100 to 200 m of the premises.
As stated above, we find this coastal environment falls within the BCA severe category.
The BCA cannot reasonably be construed to require builders to mount an exhaustive technical examination of the conditions of every local beach in order to interpret the BCA requirements for appropriate materials.
We find that any area of ocean coast falls within the definition of 'breaking surf' regardless of protective outer or inner reefs, the direction of prevailing winds, sailing conditions or mooring status.
Technical Bulletins
The manufacturer of Colorbond roofing sheets, BlueScope Steel, publishes technical bulletin TB-1a specifying which of the products are applicable to marine environments.
BlueScope's Table 1 uses different categories from the BCA. BlueScope recommends the use of Colorbond Ultra within 100 - 200 m from breaking surf. This environment is described by BlueScope as 'severe marine'.
BlueScope Steel and the supplier, BGC Steel, both confirmed in writing that Colorbond Ultra is required in the location of the [owners'] premises. The use of 'standard' Colorbond sheeting at the premises is not covered by BlueScope Steel's warranty.
Findings
Although the roof sheeting is not currently failing it is unsatisfactory by reason that the roofing material does not comply with the minimum requirements of the BCA.
The [builder] has failed to undertake the building works in a proper and workmanlike manner in breach of s 12A of the [BR Act].
We are satisfied that the appropriate remedy is replacement of the existing roof sheets with Colorbond Ultra Steel …

The relevant standards

The BCA, like the manufacturers of certain products, rely upon Australian Standards (AS), produced by Standards Australia and published by SAI Global, as the source of specific requirements for particular aspects of buildings. Thus, BCA Table 1.4.1 (Schedule of Referenced Documents) contemplates the applicability to buildings in Western Australia of Australian Standard AS 1562 (see below) dealing with the 'Design and installation of sheet roof and wall cladding': BCA, vol 2, at 38.
In Pt 2.2 of the BCA, the stated objective, so far as is relevant, for 'damp and weatherproofing' is as follows (BCA, vol 2, at 55, original emphasis):
The Objective is to -
(a)safeguard occupants from illness or injury and protect the building from damage caused by-
(i)surface water, and
(ii)external moisture entering a building …
Roofing is specifically dealt with in Pt 3.5.1 as follows (BCA, vol 2, 273-277, emphasis added):
A.Acceptable construction manuals
3.5.1.0
Performance requirements P2.1 and P2.2.2 are satisfied for roof cladding … if it complies with one of the following: …
(b)AS 1562.1 - Design and installation of sheet roof and wall cladding - Metal …
B.Acceptable construction practice
…
3.5.1.3Metal Sheet Roofing
(a)The design and installation of metal sheet roofing must comply with the relevant provisions of this Part.
(b)Metal sheet roofing must be protected from corrosion in accordance with Table 3.5.1.1.
So far as is relevant, that table (BCA, vol 2, at 276) deals with 'Acceptable Corrosion Protection for Sheet Roofing' as follows:

ROOF ENVIRONMENT	METAL COATING IN ACCORDANCE WITH AS 1397
Metallic coated steel	Metallic and organic coating
Moderate More than 1 km from breaking surf or more than 100 m from salt water not subject to breaking surf; or not within heavy industrial areas	(a) Z450 galvanised (b)AZ150 zinc/aluminium	(a) Z275 galvanised (b) AZ150 zinc/aluminium
Severe Within 1 km of breaking surf or within 100 m from salt water not subject to breaking surf; or within heavy industrial areas	AZ200	Not suitable

In this important table, the difference in the AZ150 and AZ200 coating standards is explained in the BDT's reasons, set out above. Broadly speaking, AZ150 represents Colorbond standard and AZ200 represents the more expensive Colorbond Ultra.
From the table, it is evident that the roof environment changes from severe to moderate on two applicable criteria:
a)the distance from 'breaking surf', with the determinant being a site location more than 1 km from breaking surf, and
b)the distance from 'salt water not subject to breaking surf', with the determinant being a site location of more than 100 metres from salt water.
As the house is approximately 113 metres from the water line of Safety Bay, it is outside the 100 metres zone specified for the roof environment to be regarded as 'severe' and it is thus classified as 'moderate' under this criteria, if 'breaking surf' is not in issue.
As to the alternative, dealing with the distance from 'breaking surf', we note that the BCA (2006 ed) does not supply a definition of this term.
It is convenient to first deal with how the manufacturer regards Safety Bay's marine environment in the context of whether there is any 'breaking surf' at that location.
Whatever else BlueScope suppliers say about the commercial use of its products and its warranties (see the references found above in the BDT's reasons), its own published detailed technical bulletin TB35 (2008 ed), which deals with 'Australian Salt Marine Classifications', specifically refers to and classifies Safety Bay. TB-35 advises that (original emphasis):
BlueScope Steel has attempted to classify the wide range of Australian marine types into three (3) primary categories (based on AS/NZS 2312:2002 Guidelines), for the purpose of simplifying the process for assessing likely marine environments and [the] selection of appropriate BlueScope Steel product.
The three classes are 'surf marine' ('[a]reas exposed to breaking surf and ocean spray'); 'exposed marine' ('[o]pen expanses of salt or brackish water exposed to onshore winds, but not typically prone to breaking surf'); and 'calm marine' ('[p]rotected areas of salt or brackish water, including ports, harbours, bays and river estuaries').
Importantly, TB-35 then goes on to give metropolitan 'location' examples for Western Australia, and specifically includes Safety Bay and, for that matter, Cockburn Sound (which is located several kilometres immediately to the north of the subject land). Critically, these two locations are both classified by BlueScope as 'exposed marine'.
Thus, according to BlueScope, based upon an appropriate AS, and its own technical assessment, Safety Bay is to be generally regarded as 'not typically prone to breaking surf'.
Next, we turn to AS 2312:2002 that was relied upon by BlueScope in its preparation of TB-35. At cl 2.3 of this AS, dealing with 'Atmospheric Corrosivity Categories', there are several categories of marine environment identified. Category C ('Medium') includes the following description:
This category mainly covers coastal areas with low salinity. The extent of the affected area varies significantly with factors such as winds, topography and vegetation. Around sheltered seas, such as Port Philip Bay, Category C extends beyond about 50 metres from the shoreline to a distance of about one kilometre inland. For a sheltered bay or gulf, such as near Adelaide, this category extends from the shoreline to about 3 to 6 kilometres inland. Along ocean front areas with breaking surf and significant salt spray, it extends from about 1 kilometre inland to between 10 to 50 kilometres inland, depending on the strength of prevailing winds and topography. Much of the metropolitan areas of Wollongong, Sydney, Newcastle, the Gold Coast, Auckland and Wellington are in this category. In South Australia, the whole of the Yorke [P]eninsula falls within this or a more severe category, and in the south-east of the state, from Victor Harbour to the Victorian border, this category extends between 30 and 70 kilometres inland.
The BDT did not refer to TB-35, a document before it, but instead applied another BlueScope technical bulletin (TB-1a, billed as a 'Selection Guide to steel roofing products'), in its consideration of the matter. TB-1a includes the following material (original emphasis):
Atmospheric Exposure Conditions
In a country the size of Australia, with its wide variety of climatic conditions ranging from the tropical north to the alpine regions in the south-east, and from the heavy surf characteristics of much of the coastline to the desert regions of the interior, it is clearly not possible in a brief general description to cover all possibilities in detail.
In addition, the concentration and nature of industrial activity and the effects of the combustion of fossil fuels must also be taken into account in some localities, and the direction, intensity and nature of prevailing winds can also exert an influence. Any distances quoted therefore can be indicative only.
The following environmental descriptions and table are therefore intended to serve as A GUIDE ONLY. Prevailing winds, shelter, elevation above the marine influence and unwashed areas are just a few factors that may impact on the corrosive nature of a particular site. The essential thing to do is consult with your roofing supplier or BlueScope Steel Sales Office for the best advice on the most suitable choice of … steel product.
In general, atmospheric exposure conditions can be categorised under four main groups; very severe, severe, moderate and benign, as shown in table 1. This table provides an indication of product performance where the corrosive factor is a marine influence (eg. breaking surf).
Table 1 of that document provides as follows:

MARINE ENVIRONMENT SEVERITY	DISTANCE FROM BREAKING SURF	DISTANCE FROM CALM MARINE	RECOMMENDED ROOFING PRODUCT
Very Severe Marine	0m - 100m	N/A	COLOURBOND Stainless
Severe Marine	100m - 200m	0m - 100m	COLOURBOND Ultra
Marine	201m - 400m	101m - 200m	COLOURBOND
Moderate	401m - 1000m	201m - 1000m	COLOURBOND COLOURBOND Metallic ZINCALUME
Benign	1001m+	1001m+	COLOURBOND COLOURBOND Metallic ZINCALUME

The BDT viewed this table in the following way:
BlueScope's Table 1 uses different categories from the BCA. BlueScope recommends the use of Colorbond Ultra within 100 - 200 m from breaking surf. This environment is described by BlueScope as 'severe marine'.
However, such a conclusion is, it seems, premised upon a finding of there being in existence 'breaking surf' and, as we have shown above, BlueScope itself have specifically concluded that Safety Bay is 'not typically prone to breaking surf'.
Moreover, a better description, in any event, is 'exposed marine' (TB35) or 'marine' (Table 1, TB-1a) instead of 'severe marine' (Table 1, TB-1a). Even if the subject land could be described as being in a 'severe marine' environment, it would still be located outside the 100 metre recommended zone for Colorbond Ultra (when assessed as 'calm marine' in such an environment, the only alternative to 'breaking surf', which is not applicable here). Thus, Colorbond standard could ordinarily be used in such an environment.
These various categories, when read together, are in our view more or less consistent with both TB-35's assessment of the situation in Western Australia and the BCA's choice between 'moderate' and 'severe' and 'breaking surf' and 'salt water not subject to breaking surf' categories. All of these attempts at marine classification, upon a careful reading, tend to show coherence and a corresponding utility that was, with respect, overlooked by the BDT.
Thus, there is significant material on the record that indicates that a category applied by the presumed exposure to 'breaking surf' is, on the face of it, simply not applicable to Safety Bay's marine corrosivity environment.
Moreover, recent developments tend to confirm that the BCA was intended to be read in the narrower way that we have indicated in respect of the circumstances that we are presently considering. In the most recent edition of the BCA (2009 ed) a definition of 'breaking surf' has been inserted along with explanatory information to provide examples of where breaking surf is likely to occur.
This material is as follows (emphasis added):
PART 1.1INTERPRETATION
…
[1.1.1.2]
…
'Breaking surf' means 'any area of salt water in which waves break on an average of at least 4 days per week but does not include white caps or choppy water.'
Explanatory information:
'Breaking surf normally occurs in areas exposed to the open sea. Breaking surf does not normally occur in sheltered areas, such as that which occurs around Port Phillip Bay, Sydney Harbour, Swan River, Derwent River and similar locations.'
We are also fortified by the expert commentary on this definition, found at [1.1.1.2.25] of the Building Regulation Australia Vol 1: Annotated Code (LexisNexis, looseleaf service), which is as follows (emphasis added):
Breaking Surf
The definition of breaking surf occurs in the Deemed-to-Satisfy Provisions and is used to initiate requirements for corrosion protection. The reason for this definition is that salt from breaking surf areas will travel further inland than calm estuaries and bays. Accordingly, where there is an open surf beach with crashing waves, corrosion protection will be required further inland as the wind picks up the spray.
It is important to appreciate that while sheltered areas may have breaking surf during periods of high wind, the pre-dominant nature of the sea activity will be benign with small waves and minimum amounts of sea spray. …
Unsolicited, the owners did address the issue of the BCA (2009 ed) as well as providing extensive anecdotal material (including various photographs and copies of correspondence with various individuals and agencies) as regards the alleged impact of the marine environment in the area where they reside. The builder filed detailed countervailing material on these matters.
With respect to the owners and the comments and information that they have assembled, we are unable to see how this material relevantly rebuts the prima facie conclusions that we have reached and which are set out above concerning the BCA and TB-35.
When those instruments are properly read and understood in their context and having regard to their evident purpose of classification, and having regard to BlueScope's own considered views on the matter, Safety Bay is not to be classified as a 'severe' marine environment.
It may readily be accepted that if one lived in Safety Bay, that there would be observed from time to time very windy days, with corresponding small 'waves' coming onto the shoreline (perhaps occasional large waves, as well), and with more or less continuous exposure to salt-laden air at higher levels than other parts of Perth which are located further away from the coast. There might be occasionally significant marine events such as storms and whale-sightings. Nevertheless, this does not mean that one is thereby exposed to 'breaking surf' of the type contemplated by the BCA; rather this is an 'exposed marine' type of environment contemplated by relevant instruments paralleling the BCA.
As the BCA (2009 ed) makes very clear, before we have 'breaking surf' of the requisite kind, waves must break consistently and at significant levels, a phenomenon which expressly 'does not include white caps or choppy water'. Safety Bay could not be described as 'an open surf beach with crashing waves'.
Finally, we must address these two comments of the BDT:
The BCA cannot reasonably be construed to require builders to mount an exhaustive technical examination of the conditions of every local beach in order to interpret the BCA requirements for appropriate materials.
We find that any area of ocean coast falls within the definition of 'breaking surf' regardless of protective outer or inner reefs, the direction of prevailing winds, sailing conditions or mooring status.
With respect, we reject these comments for three reasons. First, a competent builder could relatively easily locate TB-35. In any event, even without that document, the BCA mainly requires a judgment to be made concerning 'moderate' and 'severe' marine environments in a defined zone. Ordinary experience or competence would caution against classifying Safety Bay as 'severe' (given, for example, the existence of contrasting and wellknown 'beach' or 'ocean' suburbs). And, ordinary experience of building near to the coast would principally identify marine environments and corrosion by the proximity of the building site to continuous and substantial waves and associated factors such as sea-spray - as might be found in such 'beach' suburbs.
It follows that simply classifying all areas of the coast as receiving 'breaking surf' undermines the judgment that needs to be made under the BCA. Such a judgment might be difficult from time to time in its practical application, as is the case with the application of many building standards. However, it is no more difficult than judgments that are required as to soil, wind strength and similar factors.
Accordingly, the review must be allowed in the builder's favour.

Remaining matters

As the class of roofing screws was directly connected to the standard of roof sheeting, it must follow from our decision on the main issue that screws at a standard connected with Colorbond Ultra (class 4) are not necessary. A failure to install them would not, without more, lead to a conclusion that s 12A of the BR Act was applicable and that such work had 'not been carried out in a proper and workmanlike manner'.
The roofing screws currently in place are therefore adequate for the standard of roofing in place and the claim in respect of item 1(a) will be dismissed.
The builder has not, as we understand it, sought to disturb the BDT's finding in respect of item 1(f) concerning the rectification of the edges of the 'uneven and dangerous' roofing sheets, except as to the manner that that obligation may be discharged. It will be recalled that the BDT held that this item would be incorporated in the replacement of the roof sheets under item 1(b) dealing with the standard of roof sheeting.
Since the roof sheeting will not be replaced to Colorbond Ultra standard by any order that we make, it will not be possible to take the 'incorporation' path as proposed by the BDT to remedy this problem. In any event, the discharge of rectification obligations was, in the BDT's eyes, hampered by the poor relations between the parties. The BDT said:
The [owners] do not permit the [builder's] Mr Paul Chidlow to return to their premises and a restraining order prevents contact between the parties. The [builder] must engage a suitably qualified tradesperson other than Mr Chidlow to undertake the remedial works, to be completed by 28 February 2009.
Accordingly, the BDT gave the builder about six weeks to 'engage a suitably qualified [replacement] tradesperson'. There is no material before us to indicate any change in the relationship of the parties, and we think that the BDT's proposal was a reasonable and suitable compromise and should not be disturbed in respect of the one item of remaining remedial work to be effected. Thus, we will follow that model in respect of an order to remedy the uneven roofing sheets.
As to the question of the owners' leave application (which was deferred pending the outcome of this review), it must follow from our analysis of the circumstances of the case; our decision on the builder's review; and the consequential orders that we intend to make, that there is no proper basis for or utility in reopening the BDT decision further.
Therefore, leave to review will be refused in respect of the owners' application.

Orders

For the reasons given above, we make the following orders:
1.In proceeding CC 196/2009, Payne v Allegretta & Anor, the review is allowed and the decision and order to remedy of the Building Disputes Tribunal dated 14 January 2009 is varied with effect as follows:
a)The owners' claims in respect of item 1(a) and item 1(b) are dismissed.
b)In respect of item 1(f), the respondent builder is ordered to rectify the edges of the uneven and dangerous roofing sheets within six weeks of the date of this order, by way of the builder engaging a suitably qualified tradesperson, other than Mr Chidlow, to undertake the remedial works.
2.The application for leave in proceeding CC 197/2009, Allegretta & Anor v Payne & Anor, is refused.

I certify that this and the preceding [73] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER