Rein v Queensland Building and Construction
[2017] QCAT 136
•5 May 2017
CITATION: | Rein v Queensland Building and Construction Commission [2017] QCAT 136 |
PARTIES: | John Llewellyn Rein |
| v | |
| Queensland Building and Construction Commission | |
APPLICATION NUMBER: | GAR063-16 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 4 November 2016 |
HEARD AT: | Bundaberg |
DECISION OF: | Member Quinlivan |
DELIVERED ON: | 5 May 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for Review is upheld. The decision of the QBCC made on 2. The Respondent is allowed a period of 14 days from the date of this Order to provide any written submissions regarding the issue of costs, after which the issue will be determined in the papers. |
CATCHWORDS: | Building dispute, site compliance, Direction to Rectify, BCA policy, separate work, reasonableness or unfairness of Direction to Rectify |
APPEARANCES: | |
APPLICANT: | Mr G P Ebert, Solicitor, Finemore Walter and Story |
RESPONDENT: | Mr S Formby, Counsel for QBCC |
REASONS FOR DECISION
Background
On 17 October 2011 a building contract for residential construction work was entered into between Mr Lindsay Maclean and Ms Debra Worley and Mr John Rein (the Applicant) as the licensed builder. The dwelling was completed on or about 20 December 2012. An undated document[1] titled “Burnett Country Certifiers – Engagement of Private Building Certifier Agreement” appears to be the Notice for Completion of the premises.
[1]Folio 64 of SOR.
The Applicant was notified on 8 February 2015 that the dwelling was experiencing cracking and separation of walls. The Queensland Building and Construction Commission (QBCC) received a complaint on 5 August 2015 identifying a number of items relating to cracking, separation and possible subsidence.
On 11 August 2015, QBCC inspector, Mr John Cherry and the applicant undertook an inspection of the property. The QBCC determined that the ground levels around the house were in accordance with the Building Code of Australia (BCA). However, during the inspection, the inspector identified non-compliance with the BCA regarding site drainage. A Direction to Rectify No 41753 was issued on 16 September 2015, to rectify the non-compliant site drainage.
The Direction also confirmed that the other items in the complaint had been investigated and identified as category 2 defects. These items did not adversely affect the structural integrity or performance of the building, and did not constitute a health or safety issue and therefore the QBCC Board Policy required notification be submitted to QBCC within 6 months of the completion date for the building (20-12-12).
The Applicant requested an Internal Review of the decision on 20 October 2015. The Review was conducted by Internal Review Officer, Ms Leean Tyler who concluded that the movement that had occurred to the dwelling was within the acceptable tolerances of the BCA and the AS 2870 and the footing and slab systems were performing. However, she determined that the licensee (Applicant) was responsible for surface water drainage.
The further Direction to Rectify No 42207 dated 11 February 2016 required the Applicant to rectify the subfloor surface drainage at 5 Archers St Biloela because it did not comply with the Building Code of Australia (BCA) P 2.2.1, BCA 3.1.2.3 nor 3.1.2.5 because the stormwater and surface drainage was restricted from discharging from the subfloor area”. The work was to be completed by 17 March 2016.
On 7 March 2016 the Applicant applied to the Tribunal seeking that the Direction to Rectify and/or Complete No 41753 be reversed by the QBCC and that the QBCC pay the reasonable costs of the Application. The Applicant’s ground for Review was that the Respondent failed to properly review the facts which evidence that the Applicant was not responsible for the issues raised in the initial Direction to Rectify from September 2015.
The Applicant has contended that “…it is an important objective of the legislation to maintain building standards, however an equally important objective is to achieve a reasonable balance between the interests of building contractors and consumers (per section 3 of the QBCC Act). It is submitted the objective of the maintenance of the Building Standards is not compromised by not issuing a Direction in these circumstances and conversely issuing a direction would not be striking a reasonable balance between the owner and the applicant in these proceedings.”
He now seeks that the Application for Review be upheld and that the decisions of the QBCC to issue Directions #41753 and #42207 be set aside and be substituted with a Tribunal decision that any Direction by QBCC in relation to this matter be dismissed in its entirety.
The Applicant submits that the Act which was current at the time of the Direction to Rectify issued 16 September 2015 was the reprint current as at July 2015.
What is the position of the QBCC?
The Report from the QBCC Inspector John Cherry dated 15 September 2015 identified a defect, Item 9 - dwelling floor and surrounding ground levels.
The Report listed the following matters:
· A visual inspection around the dwelling identified that the ground level is higher than the area under the dwelling and does not comply with BCA 2011 Vol. 2.
· A gas level showed that the level within the dwelling is a total FFL (finished floor level) difference of 40mm. The southern end and the northern end where the tanks are located are the areas which are higher with the centre lounge room areas being the “datum”. (point of reference)
· The paths to the east and north of the dwelling direct surface water towards the house and the water tank first flush was released to the north of the dwelling and the water went along a spoon drain back under the dwelling at the highest recorded movement point during the level test.
· The grass to the north and south of the dwelling was quite green and the owner said they have not had any substantial rain since the cyclone in February (2015). Surface water from the watering of the lawn may be contributing to the movement of the posts in the areas where the largest movement is recorded.
· BCA 2011 volume 2 part 3.1.2.3 Surface water drainage states: surface water must be diverted away from class I buildings as follows: The ground beneath the suspended floors must be graded so that the area beneath the building is above the adjacent external finished ground level and surface water is prevented from ponding under the building.
· AS 1682.3 2010 section 4.2.2.1 joists general states: joists shall be laid with their top surfaces level to receive flooring. As the floor is expected to be level at the time of practical completion on 20 December 2012 the floor has a total movement of up to 40 mm.
· The surface water drainage under the dwelling and surrounding the dwelling does not comply with BCA 2011 which has allowed moisture under the dwelling causing the foundations to move and damage to the internal finishes. The non-compliant ground levels under and around the dwelling causing foundation movement is a structural defect.
The QBCC Statement of Reasons (18 April 2016) confirmed that the Applicant applied for a review of the decision of the QBCC pursuant to section 86(1)(e) and 87 of the QBCC Act. It set out that in exercising its review jurisdiction, under section 24(1) of the QCAT Act, the Tribunal must decide as follows:
i.Confirm or amend the decision; or
ii.Set aside the decision and substitute the Tribunal's own decision; or
iii.Set aside the decision and return the matter to the Commission to reconsider the Decision with directions that the Tribunal considers appropriate[2].
[2]Section 24 QCAT Act.
The Reasons detail the Statutory Framework for these proceedings. It points out that amongst the Objects of the QBCC Act is the requirement to achieve a reasonable balance between the interests of building contractors and consumers and to provide remedies for defective building work.
It states that Section 71J of the Act provides that “A consumer may ask the Commission to give a Direction to Rectify building work that the consumer considers is defective or incomplete.”
Section 72(5) states that the QBCC is not required to give the direction if it is satisfied that, in the circumstances, it would be unfair to the person to give the direction.
The QBCC included a copy its Defects Policy that commenced operation on 12 March 2010.
The QBCC made the following Findings of Fact on 18 April 2016:
i.The applicant, Mr Rein, was the builder of the dwelling at 5 Archer Street Biloela.
ii.The dwelling, on inspection, demonstrated that the surface water drainage under the dwelling and the surrounds did not comply with BCA 2011 Vol 2, Part 3.1.2.3 Surface Water Drainage and AS 1682.3 2010 Section 4.2.2.1 Joists General.
iii.The Applicant is responsible to ensure that the dwelling complies with the above standards.
iv.The QBCC believes it is reasonable for the Direction to Rectify to be issued in the current circumstances as the defect was caused by the Applicant. The dwelling is not performing in accordance with the design specifications and the defect is repairable by the Applicant.
v.The QBCC believes that the Applicant was given an opportunity to repair the defects before the initial Direction was issued but the Applicant elected not to do so.
The QBCC stated that… “(t)he Commission decided to issue a Direction to the Applicant in relation to the defects at the dwelling as the defects evident, when inspected on 11 August 2015, were caused by the actions of the Applicant. The QBCC also concluded that there was no relevant factor to demonstrate that issuing a Direction was unreasonable in the circumstances.
Ms Leean Tyler on 10 February 2016 stated that the BCA and AS 2870 identifies the acceptable degrees of movement for different soil types. She said that “if the subsidence appears to be outside of allowable levels, an independent engineer would be engaged by QBCC to determine if there is defective building work contributing to the movement”.
Ms Tyler also referred to an interview between the Applicant and Mr Cherry, the QBCC investigator where the Applicant contended that the level of movement being experienced was not due to the level of moisture under the building but was more likely to be from the use of a hardwood frame which was not either kiln dried or left a stand to ensure shrinkage issues did not arise. The Applicant believed that the movement in the dwelling was directly related to the shrinkage and use of green timbers.
The Tribunal notes that the dwelling which is the subject of this application was completed on about 20 December 2012 and that the inspection by the QBCC investigator took place on 11 August 2015, almost 3 years later.
Ms Tyler referred to a separate desktop review was undertaken by QBCC Investigator, Mr S Ferguson on 8 February 2016. She noted Mr Ferguson’s opinion that the surface level of the subfloor area was not graded to allow free movement of any surface water discharge from the subfloor area. She points out that it was the applicant's responsibility to ensure that the spoil from the excavated pier holes was removed away from the subfloor area.
What is the applicant's case?
The Applicant seeks that Directions #41753 and#42207 be set aside and that the Applicant's costs of these Review proceedings be paid by the QBCC[3].
[3]As per section 102 of the QCAT Act and Section 85 of the QCAT Rules.
The Applicant agrees with the Statutory Framework as set out in the SOR but contends that the Respondent has failed to take into account all relevant circumstances under the Act, in particular, regarding the nature and style of conduct engaged in between the Applicant and the Homeowner, such that the making of the Direction against the Applicant is unfair having regard to both the legal and factual issues in these proceedings.
The Applicant submits that the QBCC is not required to give a Direction to a person who carried out building work, for the rectification of the building work if the QBCC is satisfied in the circumstances, that it would be unfair to give such a Direction.
The Applicant points out that the Rectification Policy of the Queensland Building Services Board categorises defects as either being a category 1 or category 2 defect. He claims that this differentiation affects the issue of whether a delay by an owner in making an application for a Direction is considered “unfair or unreasonable” in the circumstances:
·Category 1 - defective building work or residential construction work causing subsidence, it may be unfair or unreasonable to issue a direction if the delay exceeds 3 months after the defective work became apparent.
·Category 2 - defective building work, the delay may be considered unfair or unreasonable if it exceeds 6 months after the building work was completed or left incomplete, or 7 months, if the owner notified the contractor of the defect within 6 months after the building work was completed or left incomplete.
The Applicant suggests that the evidence in this matter can be summarised as follows:
i)A contract was entered into between the applicant and the homeowner that specifically excluded landscaping[4].
ii)Subsequently, after the building contract commenced, the Home owner proposed to construct a concrete pathway around the dwelling and sought that the Applicant provide labour services in relation to the construction.
iii)In contrast to the building contract, the home owner supplied at his expense the materials and arranged for another person to dig the footings for the path, all at his own expense. The input from the Applicant was to provide advice as to the quantities of material and to undertake the labour component for which he was paid less than $3000.[5]
[4]See page 37 of the SOR.
[5]Summary taken from Applicant’s submissions – page 6.
The Applicant accepts that Mr Goodsall, Manager of the Rockhampton Service Centre of the QBCC, is of the opinion that the total work in the pathway would exceed $3300. However, the Applicant submits that “if, on the balance of probabilities, this is not found to be sufficient evidence of the fact to thus bring the work within the jurisdiction of the Act[6]” then the Direction to Rectify could not and ought not to have been issued.
[6]See section 5 of the Regulations of the QBCC Act.
Further, the Applicant submits that there is insufficient evidence to determine whether any works undertaken by the Applicant on the site constituted a category 1 or category 2 defect. He argues that there is no evidence that the actual construction of the dwelling was defective in any way. He points out that the QBCC has acknowledged that some cracking in the dwelling is a category 2 defect but due to the delay in the fault arising decided not to issue a Direction to Rectify.
The Applicant refers to the report from Miss Tyler[7] where she states “… If the subsidence appears to be outside of allowable level, an independent engineer would be engaged by QBCC to determine if there is defective building work contributing to the movement”. The applicant points out that there is no report from an engineer that forms part of these proceedings and therefore the Tribunal cannot be satisfied that a category 1 defect in fact exists because there is no link between the matters complained of and any structural movement of the dwelling.
[7]Review Notice, SOR page 150.
The Applicant then submits that it would be unfair or unreasonable to issue a Direction for any works to be undertaken on the site because of the substantial delay by the Homeowner in bringing the matter to the attention of the QBCC and the Applicant. He suggests that a period of about 18 months went by before the Homeowner complained to the QBCC and alternatively the Homeowner advised the Applicant more than 12 months after his initial concerns regarding settlement were noted. Either way both timeframes remain are well outside the Policy for issuing a Direction to Rectify.
The Applicant also points out that the Inspection Report from Mr Cherry[8], concluded that the movement of the dwelling was caused by moisture allowing to pond under the dwelling but the cracking itself was a category 2 defect and because it was more than 6 months after the completion date of the dwelling, no Direction to Rectify was issued. He therefore complains that the QBCC has not maintained a consistent approach in its application of its own Policy.
[8]Annexure 4 of SOR.
Therefore, the Applicant submits that there is insufficient evidence that there is in fact a category 1 defect in this case.
He contends that that the objective evidence is that:
a) The site pad on which the dwelling was constructed was provided by the owner;
b) The site pad was built above the existing ground level;
c) The site pad has a fall across it when standing at the front of the building that runs from the left rear corner towards the right front corner of the dwelling;
d) There is no evidence that the construction of the dwelling itself is defective in terms of foundations nor is there on any reasonable view, excess spoil from the footings that would affect performance of the subfloor drainage in any meaningful way. He suggests that Mr Goodsall acknowledged that the pad itself excluding the pathway is compliant except that there is excess spoil which is disputed;
e) The Homeowner arranged for the construction of the concrete path and engaged at Dingo driver to dig the footings or base.
f) The Applicant laid the concrete path and provided his labour in conjunction with the Homeowner's labour in constructing the path. It was clearly evident that the concrete path as constructed was above the ground level.
g) The Homeowner instigated a discussion leading to the installation of a spoon drain to enable water under the dwelling to escape in the event that it ever ponded underneath.
h) The Homeowner undertook other work constructing tank stands and installing a hot water system and overflows into the pool drain without any involvement from the Applicant.
i) Following completion of the dwelling, the Homeowner independently undertook other landscaping work that resulted in the ground level outside of the path to be built up to at least the height of the external edge of the path.
j) Since December 2012, there is no evidence before the Tribunal that water has ponded in any way. The only evidence is from the Homeowner to the effect that the water tank had initially splashed from the top of the tank until an adjustment was made.
The Applicant submits that there was no requirement to issue a Direction if the decision-maker was satisfied that in the circumstances, that it would be unfair to give the Direction to the person who carried out the building work.[9] He relies on the principle that was applied in Ball v QBSA anors[10] and argues that the owners were clearly aware from the time of installation of the concrete path that it was higher than the ground level. This was evidenced by the direction to the Applicant to install a spoon drain in the lower region of the site pad to enable any such water to egress from underneath the dwelling.
[9]Section 72(5) of the Act.
[10]2013 QCAT 457 especially paras 88-95.
In summary, the Applicant submits that it was unfair to make a Direction to Rectify because:
· The ground beneath the suspended floor was graded to prevent ponding and was above the adjacent external ground level at the time of the construction of the dwelling and was not in breach of the BCA;
· There is no evidence in these proceedings that the section of the pathway to the right front corner of the dwelling has exacerbated or caused ponding issues;
· The height of the pathway was apparent from the completion of construction in December 2012;
· There is a “paucity of evidence” that water actually ponds beneath the dwelling – the evidence of the homeowner is that no water entered under the house during a recent flood event;
· The homeowner has installed landscaping that has adversely impacted on surface water drainage and would require substantial rectification before the Applicant could undertake works to the concrete path to lower its level and it is argued that such work may not alter the potential of ponding.
The Outcome
[38] A summary of the sequence of events in this matter is as follows:
14 November 2012 - Practical completion in relation to the house at 5 Archer Street Biloela took place.
8 February 2015 - Applicant notified by the homeowner that the dwelling was experiencing cracking and separation of walls.
5 August 2015 - QBCC received complaint from the homeowner identifying 8 complaint items.
11 August 2015 - QBCC Inspector Cherry undertook an inspection of the site with the applicant and determined that ground levels around the house were in accordance with BCA but noted non-compliance with BCA for site drainage.
15 September 2015 – Inspector Cherry delivered Initial Inspection Report that identifies additional defect item 9 described as a Category 1 defect.
16 September 2015 – Direction to Rectify No 41753 issued to rectify non-compliant site drainage.
8 February 2016 Desktop review conducted by QBCC Inspector Ferguson
10 February 2016 – Internal Review Officer Tyler determined that the movement that has occurred to the dwelling is within the acceptable tolerances of the BCA and the AS 2870 and the footing and slab systems are performing but issued a further Direction to Rectify No 42207 to the licensee/builder for the non-compliant subfloor drainage.
7 March 2016 – Applicant John Rein filed Application to Review a Decision with QCAT seeking that the Direction to Rectify and/or Complete No 41753 be reversed by the Respondent and that the Respondent pay the Applicant’s costs of this Application.
19 April 2016 – QCAT receives Statement of Reasons from Inspector Cherry, QBCC.
14 June 2016 – QCAT receives further Statement of Evidence in Reply providing a copy of Internal Review Unit Inspection Report dated 8 February 2016 by Inspector Ferguson.
5 July 2016 - Edward Goodsall, Manager, Rockhampton Service Centre of the QBCC, conducted another inspection of the site with Mr Stephen Ferguson.
This matter was heard by the Tribunal on 4 November 2016. Ms Nancy Alexander, Manager of the Internal Review, QBCC, Mr Lindsay McLean, the building owner and Mr Edward Goodsall, Manager, Rockhampton Service Centre QBCC gave oral evidence for the respondent. The applicant, Mr John Rein also gave oral evidence.
The evidence from Mr Goodsall was set out in a Report dated 14 July 2016. The Report stated that “QBCC have identified in the initial inspection that the surface water drainage under the dwelling and the surrounding the dwelling does not comply with BCA 2011 and AS 2870 in that the builder has not provided an anti-ponding platform for the provision of drainage of surface water and prevention of moisture influence on the performance of the footing systems.”
With respect to the items raised by the Applicant, Mr Goodsall addressed them as follows:
1)The homeowner confirmed that the original site pad was provided by him but the licensee has a responsibility once he accepts the work to ensure that the platform complies with the building requirements;
2)The applicant installed a concrete path higher than the platform level preventing free flow of water away from the footing system;
3)Spoil under the house is said to have been deposited by flooding in 2013. The QBCC can find no evidence of any crossflow sediment spoil. Spoil around the posts appears to be the residue from the digging of the pier holes and not flood sediment. The homeowners advised that the flooding in 2013 did not rise high enough to flow across the house yard or under the dwelling;
4)The spoon drain does not provide an effective means to provide drainage to the platform or compliance with building requirements;
5)The homeowners confirm that they have done landscaping and installed turf since the house was built. This work is not affecting the performance of the spoon drain. During inspection the homeowners were advised that the height of the turf should be lowered to assist with site drainage;
6)The concrete path was installed as a new contract after the main contract for the house had been built. The applicant claims that this is a new contract worth less than $3300. The QBCC maintains that the path is simply a variation of the existing contract and in any event the value is greater than $3300. They state: “as a licensed builder with QBCC it is accepted and respected (sic) that the licensee is the building expert and the licensee cannot legislate away from their responsibilities under the NCC”.
The Report further states that the installation of the path around the dwelling slopes back toward the building and does not fall away. It notes that the homeowner has installed another concrete path to the inside of the builder's path to attempt to direct the water back away from the building platform. The Report acknowledges that it is difficult to say from the inspection if the path was originally constructed in the way it presently appears. As the owner has installed turf around the dwelling and this turf appears to be well watered and this may have had an effect on the performance of the slab resulting in some uplift to the outer edge of the path. However, the effect would be limited because there is no distortion or cracking to the path suggesting little movement.
It is stated that the installation of a concrete path around the dwelling has been installed at a higher level to that of the platform under the dwelling creating a damning effect and preventing water from free flowing away from the footing system.
As noted previously a number of witnesses were called to give evidence at the hearing. Ms Nancy Alexander the Manager of the QBCC Internal Review Unit gave evidence but did not appear to be aware of the detail regarding the application and was not able to assist the Tribunal to any extent.
The homeowner Mr McLean also gave evidence and presented as a good witness who genuinely attempted to assist the Tribunal. He appeared to be frank and honest in his answers. He was not able to recall how much he paid for the pathway but acknowledged that it was not part of the original contract but was discussed at around foundation stage. He acknowledged that he paid for some concrete costs but again could not recall if he paid for some or all of it.
The homeowner acknowledged there is a bit of a fall over the length of the house towards the front right of the house. He remembered that the stirrups were extended in some areas. He also recalled that one stirrup was off-line and this held up work for a couple of days.
He said that the Applicant was only paid for assisting with the path and he regarded it as part of the extras they paid for in cash.
Mr Goodsall gave oral evidence that confirmed that a builder accepts responsibility for ensuring that any preliminary ground work complies with the BCA and industry standard. He said that the applicant should have raised the matter and a variation should have been documented.
On a couple of occasions throughout the hearing reference was made to a Cardno Report dated 11 July 2016 but this document did not form part of the evidence in this case.
The Applicant submits that the work with respect to the path was not building work because it was valued at less than $3300. The evidence offered by QBCC was purely their estimates, after the event, that the work was worth more than $3300. The evidence of the applicant is clear that the amount paid was $3000 cash. The home owner was not able to assist with an accurate figure.
The QBCC strongly asserted that the photographic evidence from the initial site inspection identified spoil from the pier excavation that had not been cleared away from the subfloor area preventing the natural flow of water through the subfloor area. They state that the applicant had altered the site conditions once he had commenced work and excavated the piers. It was therefore his responsibility to ensure the subfloor area complied with the relevant codes.
The Applicant was adamant in his oral evidence that the sub floor area was all cleaned out when he left the site. The Tribunal notes that practical completion was achieved on 14 November 2012 and that the Item 9 defect was first identified by Mr Cherry at a site inspection on 11 August 2015 almost 3 years later. During that time, it is common ground that the homeowner had undertaken all of the external landscaping and had installed additional concrete sections under the building and also installed the water tanks.
The Applicant argues that the “paucity of evidence” that water actually ponds beneath the dwelling means that it would not be reasonable in accordance with section 72(5) to order any works to the dwelling to rectify any “potential problem” which is not readily apparent and for which no evidence is available which shows that it has occurred, since the construction was completed.
The QBCC argues that the original path was constructed as part of the overall construction of the dwelling and not as a separate and independent agreement between the parties. The evidence from the applicant and the homeowner leads to a different conclusion that it was a separate and independent arrangement. The Applicant’s evidence is clear and definite while the homeowner’s oral evidence was vague and lacking in detail.
Is it appropriate for the QBCC to issue a Direction to Rectify?
The evidence from the homeowner and the QBCC is that during a 2013 flood no water ponded under the dwelling or in fact reached the dwelling.
Practical completion occurred on 14 December 2012. The homeowner notified the Applicant of issues with the dwelling on 8 February 2015. The Direction to Rectify with respect to the surface water drainage under the dwelling (Item 9) was issued on 16 September 2015. These time frames would at best appear to be well outside of the normal timeframes outlined in the BCA Policy.
The Rectification Policy provides at paragraph (3) as follows:
1) If a consumer wants the Queensland Building Services Authority (BSA) to issue a Direction to a building contractor to rectify defective building work, the consumer should not delay making their application for a Direction if the delay would result in the issue of the Direction being unfair or unreasonable in the circumstances.
2) For section 1, it may be unfair or unreasonable for example to issue a direction if any of the following apply:
i)for category 1 defective building work or residential construction work causing subsidence, the delay exceeds 3 months after the defective work became apparent; or
ii)for category 2 defective building work the delay exceeds:
(1) six months after the building work was completed or left incomplete; or
(2) seven months if the owner notified the contract of the defect within six months after the building work was completed or left incomplete.
The QBCC has not sufficiently addressed the reasonableness of their actions other than to state in their Statement of Reasons (para 44) that “the Commission believes it is reasonable for the Direction to Rectify to be issued in the current circumstances as the defect was caused by the Applicant. The dwelling is not performing in accordance with the design specifications and the defect is repairable by the Applicant”. In her report Ms Tyler states that the QBCC is not required to give the Direction if it is satisfied that, in the circumstances, it would be unfair to the person to give the Direction.
She says she has considered the Applicant's submission about fairness in making her decision as to whether to issue a direction. She points out that the Rectification Policy characterises defects into two categories and identifies timeframes for when directions should be issued according to each policy, to assist with considering fairness and reasonability.
She acknowledges that Mr Cherry said that during the course of his investigation the Applicant expressed his view that the level of movement being experienced was due to the use of a hardwood frame that had not been kiln dried or left to stand to ensure shrinkage issues did not arise. The Applicant believed that the movement in the dwelling was directly related to the shrinkage and use of green timbers.
Ms Tyler formed the view that the applicant had 5 months before the QBCC became involved to undertake rectification works and failed to do so and as a result it was fair to issue the Direction to Rectify. This does not appear to be an appropriate test to apply in this situation.
The evidence supports a finding that the dwelling is performing in accordance with the design specifications and the defect identified by Inspector Cherry could be characterised as a latent situation. Ms Tyler concluded that the movement that had occurred to the dwelling was within the acceptable tolerances of the BCA and AS 2870 and the footing and slab systems were performing.
In his report dated 8 February 2016, Mr Ferguson concluded that in relation to the 8 complaint items that were the catalyst for these proceedings, the dwelling was currently performing within tolerance of AS 2870 and cracking and movement to the dwelling had not exceeded the damages criteria as defined in appendix C.
In relation to the poor surface drainage, he stated that it is a contributing factor to floor movement. However, the homeowner’s landscaping and installation of the water tanks have most likely also been a contributing factor to the moisture retention of the soils causing movement to the dwelling. He recommends that a plumbing test should also be carried out to confirm that the movement has not affected the drainage system. He strongly recommends that these are in fact issues that the homeowner should address as soon as possible.
Various photos were provided by representatives from the QBCC but these were of little assistance when considering this matter because generally they did not identify the property, the dates they were taken or their relevance to the present complaint.
Decision
The test to be applied in a matter such as this is the civil standard of whether on the balance of probabilities it would be appropriate to issue a Direction to Rectify.
I am not satisfied that the evidence demonstrates that the “spoil” under the dwelling came about as a result of the actions of the Applicant. The building of the property was completed on 14 November 2012. Approximately 27 months later the homeowner notified the applicant that there was some cracking and separation of the walls of the dwelling.
A further 6 months later the QBCC received a complaint identifying 8 separate items of concern. Following an inspection, the QBCC identified another item relating to non-compliance with site drainage. It is that item which has been the subject of this dispute.
Between 14 November 2012 and 11 August 2015 the homeowner undertook considerable landscaping and associated works around the property.
There is a dispute as to whether the works that were done in conjunction with the Applicant in constructing a path around the property were building work worth more than $3300. The evidence does not support such a finding.
There is no evidence to show that any of the building work undertaken by the Applicant was defective.
An important objective of the legislation is to maintain building standards but an equally important objective is to achieve a reasonable balance between the interests of building contractors and consumers.[11] In my view, the objective of the maintenance of building standards is not compromised by not issuing a Direction in these circumstances. On the contrary in my view issuing a Direction would not be striking a reasonable balance between the owner and the applicant.
[11]QBCC Act s.3.
Given the passage of time involved, I have formed the view that it would be unfair or unreasonable to issue a Direction to Rectify to the Applicant regardless of whether the matter is characterised as a character category 1 or 2 matter. I am not satisfied that the evidence demonstrates that any “spoil” presently under the dwelling can be attributed to the actions of the Applicant during or after the original construction.
The Application for review is upheld. I order that the decision of the QBCC made on 16 September 2015 to issue a Direction to Rectify No. 41753 be set aside.
Costs
As part of his submissions the Applicant seeks a costs order against the respondent in accordance with the provisions of section 102 of the QCAT Act 2009. In the circumstances, I direct that the Respondent is allowed a period of 14 days to provide any written submissions regarding the issue of costs, after which the issue will be determined in the papers.
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