Plunkett Homes (1903) Pty Ltd and Stephens
[2007] WASAT 295
•14 NOVEMBER 2007
PLUNKETT HOMES (1903) PTY LTD and STEPHENS [2007] WASAT 295
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 295 | |
| BUILDERS' REGISTRATION ACT 1939 (WA) | |||
| Case No: | CC:655/2007 | 12 OCTOBER 2007 | |
| Coram: | MR T CAREY (MEMBER) | 13/11/07 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Leave refused | ||
| B | |||
| PDF Version |
| Parties: | PLUNKETT HOMES (1903) PTY LTD DES STEPHENS |
Catchwords: | Building dispute Application for leave to review decision Liability admitted Whether Building Disputes Tribunal bound to regard building solution the subject of expert judgment as alternative solution Certification once repairs completed proposal Status of certification Whether any other error Discernable basis for decision Whether any question of law to be determined |
Legislation: | Builders' Registration Act 1939 (WA), s 12A(1) Building Code of Australia, cl 1.0.4, cl 1.0.5, cl 1.0.8(a), cl 1.0.8(b), cl 1.0.9, cl 1.1.1, cl 1.2.2 Building Regulations 1989 (WA), reg 5, reg 10, reg 11, reg 14, reg 17 |
Case References: | Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119 Tangent Nominees Pty Ltd and Edwards & Anor [2006] WASC 45 |
Orders | 1. The application for leave to review the decision of the Building Disputes Tribunal made on 28 March 2007 and reflected in Order to Remedy No 330/2006-07 is refused.,2. The application is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : PLUNKETT HOMES (1903) PTY LTD and STEPHENS [2007] WASAT 295 MEMBER : MR T CAREY (MEMBER) HEARD : 12 OCTOBER 2007 DELIVERED : 14 NOVEMBER 2007 FILE NO/S : CC 655 of 2007 BETWEEN : PLUNKETT HOMES (1903) PTY LTD
- Applicant
AND
DES STEPHENS
Respondent
Catchwords:
Building dispute - Application for leave to review decision - Liability admitted - Whether Building Disputes Tribunal bound to regard building solution the subject of expert judgment as alternative solution - Certification once repairs completed proposal - Status of certification - Whether any other error - Discernable basis for decision - Whether any question of law to be determined
Legislation:
Builders' Registration Act 1939 (WA), s 12A(1)
Building Code of Australia, cl 1.0.4, cl 1.0.5, cl 1.0.8(a), cl 1.0.8(b), cl 1.0.9, cl 1.1.1, cl 1.2.2
(Page 2)
Building Regulations 1989 (WA), reg 5, reg 10, reg 11, reg 14, reg 17
Result:
Leave refused
Category: B
Representation:
Counsel:
Applicant : Mr S Pentony
Respondent : Mr P Clifford
Solicitors:
Applicant : Hotchkin Hanley
Respondent : Lewis Blyth & Hooper
Case(s) referred to in decision(s):
Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119
Tangent Nominees Pty Ltd and Edwards & Anor [2006] WASC 45
(Page 3)
Summary of Tribunal's decision
1 The respondent made a complaint against the applicant with the Building Disputes Tribunal claiming that the concrete slab and footings which formed part of the construction of his residence had not been carried out in a proper and workmanlike manner. The applicant admitted liability, but relied upon the opinion of its engineer that the as constructed slab, with some modification, constituted an alternative solution under the Building Code of Australia in contending that the relief obtained should be so limited. The Building Disputes Tribunal disagreed, and ordered that the builder construct the slab and footings in accordance with the contract design, necessitating the complete reconstruction of the slab and footings. The builder submitted that this decision was wrong and amenable to the grant of leave to review the decision in this Tribunal.
2 The Tribunal reviewed the provisions of the Building Code of Australia in order to determine whether they supported the builder's argument that an expert judgment that a building solution qualifies as an alternative solution should be conclusive. It did so having regard to the legislative scheme in which the Code operates and its preferred construction of the relevant Code provisions. It concluded that the builder's contention was not supported by the proper construction of the Code, and that it was a legitimate question for the Building Disputes Tribunal whether, in the light of all the evidence before it, a building proposal constituted an alternative solution.
3 The Tribunal also found that the Building Disputes Tribunal had carried out its task properly and there was a clear and discernable basis for its decision requiring the reconstruction. The application for leave was therefore refused.
Introduction
4 This is an application for leave to review a decision of the Building Disputes Tribunal (Disputes Tribunal) reflected in Order to Remedy No 330/2006-07 made 28 March 2007 whereby Plunkett Homes (1903) Pty Ltd (builder) was ordered to carry out the following remedial work in relation to a residential dwelling being constructed at Lot 7 Gosnells Road East, Orange Grove owned by Mr Stephens (owner):
"Remedy faulty and defective workmanship in relation to the construction of the slab and footings by providing s [sic] slab
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- and footings in accordance with the contract drawings and specifications within 60 days."
5 The order to remedy also provided for the parties to make submissions on costs of the Disputes Tribunal proceedings.
6 The builder had conceded before the Disputes Tribunal that it did not carry out the construction of the slab and footing detail in a proper and workmanlike fashion, and therefore that its building work was faulty or unsatisfactory for the purposes of s 12A(1) of the Builders' Registration Act 1939 (WA) (BR Act). The deficiencies, or at least some of them, were set out in a report of the builder's engineers, Structerre Consulting Group (Structerre Consulting), and included non-placement of reinforcing steel on spacers or bar chairs, the thickness of the slab was less than the design thickness of 100 millimetres, and compressive strength of the slab was below the applicable standard. In these circumstances, it was common cause that the sole issue in the proceeding before this Tribunal was the appropriateness of the remedy required by the order to remedy, which was effectively to demolish the as constructed slab and start again. According to the builder, the as constructed slab and footings, once specified repairs were completed, would constitute an alternative solution under the Building Code of Australia (Code), and the owner could expect no more. The builder submitted that the order to remedy, which required it to "reconstruct the slab and footing detail in a different way that would also comply with the [Code]," was "inappropriate and unnecessary" and amounted to "an improper exercise of [the Disputes Tribunal's] discretion to make a remedial order".
7 The alternative solution asserted by the builder relied upon the expert judgment of Mr Purich of Structerre Consulting to the effect that once the repairs had been performed, the as constructed slab and footings would meet the performance requirements under the Code. Although this was sufficient, Mr Purich had also indicated his willingness to provide certification, once the repairs were effected, that the performance requirements were satisfied.
Leave to review - applicable principles
8 The principles governing the grant of leave to review decisions of the Disputes Tribunal are set out conveniently by Senior Member Raymond in Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119 at [35]-[44]. The principles were not the subject of dispute and are summarised below:
(Page 5)
- • It must be shown that the decision in respect of which leave is sought is wrong, or attended with sufficient doubt to justify the grant of leave.
• In addition, something further must be demonstrated. Substantial injustice resulting from leaving the decision unreversed is a common further requirement, although it is no more than a guideline for the exercise of a broad discretion to grant or withhold leave.
• The additional factor element may in some cases be satisfied if it is shown that a significant question of law is to be considered.
• This Tribunal should be slow to grant leave except in cases where clearly there is no discernable basis for the decision of the Disputes Tribunal, or other cases of apparent error, for example, where rules of natural justice have been breached.
• The grant of leave will be limited to such grounds as this Tribunal determines (this principle was upheld by the Supreme Court in Tangent Nominees Pty Ltd and Edwards & Anor [2006] WASC 45).
Issues raised in this leave application
9 Based on the written and oral submissions of the parties, the following issues for determination have been identified:
1) Whether, in its consideration of the appropriate remedy, the Disputes Tribunal was bound to regard the builder's proposed solution as an alternative solution under the Code, so that its failure to do so was an error.
2) Whether the Disputes Tribunal's conclusions that the proposed solution was not an alternative solution and the appropriate remedy was to demolish and reconstruct the slab and footings were otherwise wrong or attended by doubt to the necessary extent.
3) Whether the first issue concerned a question of law which might justify leave being granted.
(Page 6)
Issue 1 Was the Disputes Tribunal bound to find that the solution proposed by the builder is an alternative solution?
10 The various levels of compliance with the Code, both generally and with reference to the owner's slab and footings, were referred to by the parties. The deemed to satisfy level did not apply directly to the repair methodology proposed by the builder; the alternative solution level did. The starting point under the Code is cl 1.0.4 which provides:
"A Building Solution will comply with the BCA if it satisfies the Performance Requirements."
11 By cl 1.0.5, compliance with the performance requirements can be achieved by "formulating an Alternative Solution which ... complies with the Performance Requirements". An alternative solution is to be assessed according to one or more "Assessment Methods" (cl 1.0.8(a)) and will comply with the Code only if the assessment methods have been satisfied (cl 1.0.8(b)).
12 Clause 1.0.9 deals with assessment methods. It states:
"The following Assessment Methods, or any combination of them, can be used to determine that a Building Solution complies with the Performance Requirements:
(a) evidence to support that the use of a material, form of construction or design meets a Performance Requirement or a Deemed-to-SatisfyProvision as described in 1.2.2.
(b) Verification Methods such as -
i) the Verification Methods in the BCA; or
ii) such other Verification Methods as the appropriate authority accepts for determining compliance with the Performance Requirements.
(c) comparison with the Deemed-to-SatisfyProvisions.
(d) Expert Judgement [sic]"
13 "Expert Judgement [sic]" is defined in the definition clause, cl 1.1.1, as follows:
"Expert Judgement [sic] means the judgement [sic] of an expert who has the qualifications and experience to determine whether
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- a Building Solution complies with the Performance Requirements".
14 "Verification method" is defined in the same cl 1.1.1 as follows:
"Verification method means a test, inspection, calculation or other method that determines whether a Building Solution complies with the relevant Performance Requirements."
15 Clause 1.2.2 of the Code deals relevantly with "Evidence of Suitability". For current purposes, it provides:
"(a) ... evidence to support that the use of a material, form of construction or design meets a Performance Requirement ... may be in the form of ... :
iii) a certificate from a professional engineer or other appropriately qualified person which -
(A) certifies that a material, design or form of construction complies with the requirements of the Housing Provisions; and
(B) sets out the basis on which it is given and the extent to which relevant specifications, rules, codes of practice or other publications have been relied upon."
17 I do not accept that the Disputes Tribunal was bound to accept the expert judgment relied upon by the builder as determinative of whether the alternative solution requirements of the Code had been met. My considerations going to the builder's proposition are set out below under
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- two headings - the legislative scheme in which the Code operates, and the proper construction of relevant provisions of the Code. My reasoning under both headings points to the same outcome.
Legislative scheme under which the Code operates
18 Volume 2 of the Code (dealing with housing provisions) has as its primary sphere of operation applications to local government authorities for building licences. As reg 10 of the Building Regulations 1989 (WA) (Building Regulations) makes clear, such an application is a precondition for the commencement of any building works. Applications are lodged with the local government's building surveyor (reg 10(2)). Regulation 11 sets out particulars which must form part of or accompany an application for a building licence. Examples of those particulars are "Specifications", including information necessary to show that the building will, if constructed according to the written specifications, comply with the Code, and, when required by the building surveyor, "Performance levels and requirements", including:
• a list of performance requirements which are to be satisfied by a method other than the deemed-to-satisfy provisions of the Code;
• details of assessment methods to be used to establish compliance with the performance requirements identified;
• details of any expert certificates, tests or calculations and standards or other documents relied upon to establish compliance with those requirements.
19 Regulation 14 of the Building Regulations provides for the building surveyor to examine all plans, drawings and specifications deposited by builders to assess inter alia their conformity with the Building Regulations. He or she, acting as delegate of the local government, may approve them; return them to the builder for amendment, in which case they are considered as not having been lodged until re-submitted; or refuse to approve any such plan, drawing or specification. In the latter case, the builder has a right to apply to this Tribunal for review of the refusal. In any case where any variation of approved plans, drawings or specifications is proposed, the consent of the building surveyor is once again necessary: reg 17 Building Regulations.
20 In the context of building licence applications, then, the building surveyor is vested with an overarching discretion to determine any issue
(Page 9)
- of compliance with the performance requirements of the Code, having regard to the assessment methods which the builder relies upon to establish such compliance, with the builder having a right to seek a review of the exercise of that discretion. The discretion would entitle the building surveyor to accept or not accept any building solution advanced as an alternative solution, depending on the state of his or her satisfaction that it complies with the performance requirements on the basis of all the available information. It is self evident that the building surveyor is not bound by the material put forward by a builder to support an alternative solution. On review by this Tribunal, it may be necessary to assess contested evidence to establish whether or not an alternative solution has been objectively established.
21 As a matter of principle, in the absence of anything arising from the proper construction of the Code to the opposite effect, there is no reason why the Disputes Tribunal should not be required to exercise the same discretion when assessing disputed evidence as to what is required to remedy faulty or unsatisfactory building work. In the case of a dispute over a proposed alternative solution, this would entitle it to determine the dispute on the basis that it preferred the evidence of one expert over that of another.
Construction of relevant Code provisions
22 As explained in the Code's "Introduction", it is a uniform set of technical provisions for the design and construction of buildings and other structures throughout Australia, with provision for variation at both the State and Territory level and on account of regional factors. The Code is given legal effect by building regulatory legislation in each State and Territory - for Western Australia, see reg 5 of the Building Regulations. The Code is produced and maintained by the Australian Building Codes Board, an intergovernmental body comprising the Minister responsible for building regulatory matters of each of the member governments, a representative of the Australian Local Government Association and industry representatives. The goals of the Code are set out in the introduction in terms of enabling the achievement and maintenance of acceptable standards of structural sufficiency, safety, including safety from fire, health and amenity for the benefit of the community now and in the future.
23 I turn to cl 1.0.9 of the Code, which I have set out above. The clause constitutes a code for determining whether an alternative solution is compliant with the Code. It exhibits an intrinsic flexibility in the use to
(Page 10)
- which any or all of the alternative methods it lays out may be put in determining compliance. It does not elevate any method above any other in terms of priority and does not in its terms indicate that resort to any one method (for example, expert judgment) will necessarily be conclusive. The builder's construction would remove any discretion in the Disputes Tribunal to determine whether a particular building outcome was an alternative solution in any case where an expert judgment was obtained, even where, as here, that judgment is the subject of an opposing opinion. This would be inconsistent with the intrinsic flexibility of cl 1.0.9 to which I have referred. Much clearer words would be necessary in my opinion to achieve such an outcome.
24 My view of the correct construction of cl 1.0.9 is further fortified by a section in the introduction to the Code headed "Documentation of decisions". This section provides examples of documentation which should be prepared and retained pertaining to building solutions and alternative solutions. In the case of a proposed alternative solution, the following examples are given:
"i) details of the relevant Performance Requirements; and
ii) the Assessment Method or methods used to establish compliance with the relevant Performance Requirements; and
iii) details of any Expert Judgement [sic] relied upon including the extent to which the judgement [sic] was relied upon and the qualifications and experience of the expert; and
iv) details of any tests or calculations used to determine compliance with the relevant Performance Requirements; and
v) details of any Standards or other information which were relied upon."
25 One obvious purpose for this advice is to ensure that the necessary information is available to be lodged with the building surveyor as part of a building licence application or where later required by the building surveyor (see reg 11(d) Building Regulations). Where any expert judgment is relied upon, one of the recommended details for documentation is the extent to which the expert judgment was relied upon in contending for an alternative solution. This again highlights the
(Page 11)
- flexibility of cl 1.0.9, the fact that no one assessment method is necessarily paramount or determinative, and that the building surveyor can assess on the basis of all the evidence whether or not he or she considers an alternative solution exists. Why, one might ask rhetorically, is the position any different in the case of an issue concerning compliance with the Code before the Disputes Tribunal?
26 The builder's argument concerning Mr Purich's certification after completion of the suggested repair works picks up sub-paragraph (b)(i) of cl 1.0.9 (verification methods in the Code) and, by dint of the definition of verification method, cl 1.2.2 (evidence of suitability). Whilst Mr Purich's certificate would be evidence to support the as constructed construction post the repairs as compliant with the Code, it cannot, in my view, be conclusive, based on the matters I have addressed in relation to the expert evidence argument. The Disputes Tribunal was entitled to consider all of the evidence, including that of the owner's expert, in reaching a decision whether or not the proposed solution constituted an alternative solution.
Issue 2 Was the Disputes Tribunal's decision otherwise wrong or attended by doubt? Was there a discernable basis for it?
27 The builder's attack on the decision of the Disputes Tribunal was centred upon its arguments about the conclusive nature of Mr Purich's expert judgment and proposed certification. As the builder's counsel put it in oral submissions, once the Disputes Tribunal was satisfied as to Mr Purich's expertise, the "proposed remedy [of Mr Purich] was the remedy". For the reasons given under the previous heading, the Tribunal rejects the builder's arguments, and therefore rejects the proposition that the Disputes Tribunal was wrong, or its decision is attended by any doubt, to the extent that it acted in a way which was consistent with the relevant Code provisions as interpreted by this Tribunal.
28 It was for the builder, as the applicant, to raise the arguments which it required the Tribunal to consider in its determination of the application for leave. With one possible exception, the builder did not invite the Tribunal to make any adverse finding about the Disputes Tribunal's reasons for decision apart from its primary submission. Each of the Disputes Tribunal's findings and conclusions set out below was unchallenged:
(a) The deficiencies set out in the Structerre Consulting report did occur in the construction of the slab and footings (reasons at [6]);
(Page 12)
- (b) Mr Purich's assertion of an "on-site" factor having being consumed, without compromising the structural integrity of the slab and footings, was simply an opinion without a sufficient basis for it having been made out (reasons at [41]);
(c) Both of the parties' engineers agreed the combination of the inadequacy of reinforcement, inappropriate placement of reinforcement, reduced slab thickness and reduced compressive strength would have a negative effect on the structural performance of the slab and the residence (reasons at [43]).
29 The Disputes Tribunal based its conclusion that reconstruction of the slab was the appropriate remedy (reasons at [43]) on the evidence of the owner's expert, Mr Firrito, where he considered the extent and possible consequences of the deviation from the design. On a proper reading of Mr Firrito's report and the transcript of his evidence, there was a clear and discernable basis for its conclusion. The builder did not seek to argue to the contrary, its case being premised on the conclusive nature of Mr Purich's opinion.
30 There are further findings of the Disputes Tribunal relating to the operation of the alternative solution provisions in the Code. So, for example, its reasons at [39] referred to the variations from the Structerre Consulting design in thickness and concrete strengths, and at par [40] and par [41], to a lack of "design as constructed" drawings, calculations, or any justification of the proposed alternative solution "through calculation experience, experimentation or otherwise justifying the opinion that something less than the deemed to comply requirements would meet the performance requirements of the Code". The builder did challenge these statements as either imposing conditions on an expert judgment or other verification method which did not exist under the Code, or ignoring those matters on which it was said Mr Purich based his opinions. The owners argued that the findings were correct. Given the unchallenged findings and conclusions of the Disputes Tribunal to which I have referred, they do not justify leave being granted. Even if some error was made in reaching any of them, which is doubtful given that the requirements set by the Disputes Tribunal appear to be reasonable as ones which would facilitate objective assessment of an expert's opinions, this had no effect on the ultimate result. It was the Disputes Tribunal's preference for the evidence of the owner's expert to that of the builder's expert, rather than any
(Page 13)
- technical deficiency in the builder's case, which justified the order to remedy in the terms in which it was made.
Issue 3 Question of law
31 I accept that the conclusion to which I have come in relation to issue 1, as I have identified it, has potential ramifications for the construction industry in Western Australia. I further accept that the issue raised questions of the construction of the Code and the width of the discretion of the Disputes Tribunal, which are questions of law. However, in accordance with the principles governing when leave should be granted, I must be satisfied, before granting leave, that the decision of the Disputes Tribunal was wrong or attended with doubt. As I am not so satisfied, leave must be refused.
Order
32 For the above reasons, the Tribunal orders as follows:
1. The application for leave to review the decision of the Building Disputes Tribunal made on 28 March 2007 and reflected in Order to Remedy No 330/2006-07 is refused.
2. The application is dismissed.
33 I note that the provisions of the Order to Remedy relating to costs have now lapsed. Unless agreement can be reached in relation to costs of the proceedings before the Disputes Tribunal, application to that Tribunal to vary its order may become necessary.
I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER
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