Richardson v Queensland Building and Construction Commission
[2015] QCAT 119
•15 April 2015
| CITATION: | Richardson v Queensland Building and Construction Commission [2015] QCAT 119 |
| PARTIES: | Elizabeth Anna Richardson (Applicant) |
| v | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | GAR263-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 7 October 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Cullen, Member |
| DELIVERED ON: | 15 April 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The 1 May 2013 and 5 June 2013 decisions of the Queensland Building and Construction Commission not to issue a Direction to Rectify and/or Complete are set aside. 2. The Queensland Building and Construction Commission issue a Direction to Rectify to Alliance Homes in relation to Complaint Items 6, 7, 8, 9 and 11. |
| CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW – DIRECTION TO RECTIFY – DOMESTIC BUILDING WORK – whether the builder is responsible for the defective work and whether it is reasonable for the QBCC to issue a Direction to Rectify where it is alleged that owners landscaping a contributing factor Queensland Building and Construction Commission Act 1991 (Qld), s 72, Schedule 2 National Construction Code, Volume 2 |
APPEARANCES:
| APPLICANT: | Elizabeth Anna Richardson |
| RESPONDENT: | Queensland Building and Construction Commission |
REASONS FOR DECISION
Previous history of conduct
On 28 April 2008, Elizabeth Richardson and Alliance Homes entered into a domestic building contract for the construction of a new double storey dwelling at Springfield Lakes, Queensland (‘the Property’). Construction of the new dwelling was completed on 23 March 2009.
On 5 September 2012, Ms Richardson advised Alliance Homes that there were rising damp issues. Alliance Homes inspected the dwelling and attempted to rectify the issues.
On 22 January 2013, Ms Richardson made a complaint to the Queensland Building and Construction Commission (‘QBCC’) in relation to the following:
· a leak in the main bathroom (Complaint Item 2);
· water damage to the floating timber flooring system (Complaint Items 6, 7, 8, and 9);
· the dislodgement of a section of render to the laundry wall (Complaint Item 10); and
· moisture on the garage slab (Complaint Item 11).
On 29 April 2013, the QBCC’s building inspector, Mr Stephen Ferguson, inspected the dwelling. Following this inspection, on 1 May 2013, the QBCC issued a Direction to Rectify to Alliance Homes, but in relation to Item 2 only.
On 3 June 2013, Mr Ferguson reinspected the Property and based on that report, on 5 June 2013, the QBCC amended its prior decision and withdrew the Direction to Rectify it had issued to Alliance Homes on 1 May 2013. Despite there being no Direction to Rectify, Alliance Homes did commence rectification of Complaint Item 2, and notified the QBCC of its actions.
In the Application now before the Tribunal, filed on 3 July 2014, Ms Richardson asks that QCAT review the 1 May 2013 and 5 June 2013 decisions of the QBCC, refusing to issue a Direction to Rectify and/or Complete to Alliance Homes.
Ms Richardson argues that it was not reasonable for the QBCC to reject her complaint and not issue the Direction to Rectify, because the building work was defective and the Alliance Homes should be responsible for the defects.
Issues to be determined on review of this nature:
In a review to determine whether a Direction to Rectify and/or Complete should have been issued to a contractor, the Tribunal must determine the following:
a) Was the work building work?
b) If so, was the work defective building work?
c) Was the Contractor responsible for the defective building work?
d) Is it reasonable for the Contractor to rectify the building work?
Was the work building work?
The parties agree that the work performed by Alliance Homes for Ms Richardson was building work.
Was the work defective building work?
Was Alliance Homes responsible for the defective building work?
Item 2
Following Ms Richardson’s complaint to the QBCC, Alliance Homes returned and rectified the leak in the main bathroom, such that it is no longer in issue before the Tribunal.
Items 6, 7, 8, and 9
Items 6, 7, 8 and 9 all relate to water damage to the timber flooring system. Alliance Homes was not responsible for installation of the timber floors. Ms Richardson has obtained a “Residential Building Report” from BDS Inspections, and an “Engineering Report” from Structerre Consulting Engineers. The QBCC obtained an expert report from Mr John Van de Hoef, an engineer from NJA Consulting Pty Ltd.
It became quickly apparent during the course of the Tribunal hearing that the report prepared for Ms Richardson by Structerre was a case of “you get what you pay for”. The report itself was extremely brief, and lacking in detail, and more in the nature of a “look see” than in the form of a detailed expert analysis. The report prepared by Mr Van de Hoef is in all respects preferable. It is detailed, addresses all of the possible factors relating to the water damage, and most importantly, Mr Van de Hoef appeared in person to be cross-examined. As the Tribunal is a forum that allows for an inquisitorial form of hearing where appropriate, his presence at the hearing allowed the Tribunal to raise issues for his response.
In short, the QBCC’s position was that Alliance Homes complied with the requirements of the Building Code of Australia (‘BCA’) in preventing water ingress to the dwelling by installing a damp proof course. The QBCC also asserted that slab edge dampness was the likely cause of the water damage to the floating timber flooring system, and that this was a result of poor site drainage/landscaping installed by Ms Richardson.
The Tribunal accepts, having heard from Mr Van de Hoef, that slab edge dampness is the likely cause of the water damage to Ms Richardson’s floor. Following the Tribunal’s enquiries of Mr Van de Hoef, the Tribunal also concludes that the slab edge dampness is, on the balance of probabilities, the likely result of defective work by Alliance Homes.
During the hearing, the question arose as to whether the polythene membrane that is mean to run along the edge of the slab possibly terminated earlier than it should have. The Tribunal asked Mr Van de Hoef, ‘Well, as I've understood it – so that you can tell me if I'm wrong as well – it (the polythene membrane) doesn’t come up the side at all but you were not certain whether it stopped short?’.
In response, Mr Van de Hoef responded:
[I]f you want to take the absolute, by the book, dot your i’s and cross your t’s line, this here had to go to there. Okay. It doesn’t go to there. It is a contributing factor whether it’s five per cent, 10 per cent, 20 per cent, I don't know but you can – you can guarantee that the more footing that’s exposed to the soil moisture, the more contribution to the problem that’s creating. So this is not correct. It absolutely isn't correct. And it’s not – it doesn’t comply with the design with it. The design showed it terminating at that position. It doesn’t comply with the BCA. So it might only be one of a – a number of factors. In terms of the – the rise, while I've suggested that homeowners don't know these things, stuff like that, it’s normal practice, the simple reality is, when you have a problem, somebody’s going to have to make a decision on what various different codes say. And the code that applies is the Building Code of Australia and it is dead clear. That moisture – that polythene membrane must be terminated there. Okay. So – so that’s it.
It is the Tribunal’s view that the correct and preferable answer to whether the work performed in relation to installation of the polythene membrane was defective is yes. Alliance Homes installed the polythene member and is therefore responsible for this work.
Item 11
Regarding moisture on the garage slab, the QBCC does not appear to dispute that there is a defect, but rather argues that any defect is not the result of work performed by Alliance Homes. Rather, the QBCC asserts that the moisture in the garage is most likely due to Ms Richardson (or her contractors) having constructed an adjacent concrete path with insufficient clearance to the garage slab, which is allowing moisture to penetrate the damp proof course and/or weep holes to the garage.
The Tribunal accepts the evidence of Mr Van de Hoef, contained at page 3 of his 1 October 2014 report that ‘the site drainage at the right hand site[sic] of the garage is poor’, but cannot conclude that the difficulties associated with the work are the work of Ms Richardson or a subsequent contractor. The evidence at the hearing did not establish that the
Is it reasonable for the Contractor to rectify the building work?
Item 10
The QBCC asserts that Complaint Item 10, the dislodgement of a section of render to the laundry wall, is due to normal cracking and only of cosmetic nature. Following on from this conclusion, the QBCC determined this Item as a Category 2 defect.
The Tribunal agrees with the QBCC that it would not be reasonable to require Alliance Homes to rectify this defect, as the complaint in relation to it was not received within the 6 month period following construction of the dwelling pursuant to the QBCC’s Defects Policy and s 72 of the QBCC Act. Rather, the complaint was received approximately 3-years and 10-months after construction, and at such a late juncture, it would not be reasonable to issue a Direction to Rectify to Alliance Homes.
Items 6, 7, 8, 9, 10, and 11
The QBCC argues that it would not be fair to issue Alliance Homes with a Direction to Rectify in relation to these complaint items, for the reason that Ms Richardson’s landscaping and or failure to create appropriate drainage is a significant contributing factor to the issues. It is not in dispute that Alliance Homes was not responsible for landscaping and/or drainage on Ms Richardson’s site.
Ms Richardson gave evidence that she did not complete the landscaping work immediately, but did so sometime later, after Alliance Homes had left.
In circumstances where a builder is not also responsible for the landscaping portion of a home build, it should be incumbent upon that builder to ensure that soil is not left against the house that might contribute to drainage issues.
Ms Richardson gave evidence that there was never any fill put in when the landscaping works eventually went in. Rather, the concreter simply the levelled the ground that was there. In other words, any build up of soil at the edge of the slab is not due to action taken by Ms Richardson or on her behalf.
The Tribunal accepts Ms Richardson’s evidence in this respect. It is the only evidence on this point before the Tribunal as the builder was not called to give evidence. There is no evidence that Ms Richardson was responsible, or that her contractors were responsible, for covering the level of the polythene membrane with soil such that water ingress to the slab would become possible.
Rather, the evidence is to the contrary. As such, the Tribunal is unable to conclude that Ms Richardson’s landscaping works were responsible for building up the levels of soil at the edge of the slab. In these circumstances, the correct and preferable decision is to require the contractor to rectify the defect that has led to the water ingress issue. Here, that is the failure, before any landscaping had been completed, to continue the polythene membrane along the full length of the slab edge.
Orders
The 1 May 2013 and 5 June 2013 decisions of the Queensland Building and Construction Commission not to issue a Direction to Rectify and/or Complete are set aside.
A Direction to Rectify is issued in relation to Complaint Items 6, 7, 8, 9 and 11.
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