Russell v Queensland Building and Construction Commission
[2014] QCAT 94
•21 March 2014
| CITATION: | Russell v Queensland Building and Construction Commission [2014] QCAT 094 |
| PARTIES: | Cedric Ernest Russell (Applicant) |
| v | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | GAR232-11; GAR003-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 18 and 19 November 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Howe |
| DELIVERED ON: | 21 March 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Set aside the decision of the Queensland Building and Construction Commission made on 6 July 2011 to issue Direction to Rectify No.36440. 2. Set aside the decision of the Queensland Building and Construction Commission made on 6 December 2012 that work undertaken by the Applicant pursuant to the compromise agreement dated 26 March 2012 was rectification work undertaken in compliance with Direction to Rectify No.36440. 3. The parties make submissions as to costs within 14 days of this order and the matter of costs be determined on the papers. | ||
| CATCHWORDS: | Building work – direction to rectify – defective building work – development approval conditions – BCA – expert evidence - discretion to order rectification – delay in complaint – Rectification of Building Work Policy – compromise Queensland Building and Construction Commission Act 1991 ss 72(1), (2), (14) and 86(1)(f) Steel v QBSA [2013] QCAT 439 | ||
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Cedric Russell was self-represented |
| RESPONDENT: | Queensland Building and Construction Commission represented by Cheriden Farthing |
REASONS FOR DECISION
Background
Mr Russell is a builder. On 24 March 2006 he signed a contract with the owners of land at 1 Fontana Way, Springfield Lakes, to build them a home.
It was a sloping block. He was given plans prepared by an architect but no engineering reports for footings or soil type. He quoted for the job on the basis the owners would perform landscaping and erect retaining walls.
The house was finished around August 2007.
On 28 March 2011 the owner, Ms Taylor, made a complaint to the Queensland Building and Construction Commission (the Commission) alleging defective building work by Mr Russell.
An inspection of the property occurred on 7 June 2011. Mr Russell attended, as did an engineer engaged by the Commission, Mr Van de Hoef, and too a Commission building inspector. Ms Taylor was also there.
On 9 June 2011 the Commission engaged another building contractor to carry out urgent rectification work at the property.
Mr Van de Hoef provided a report to the Commission and on 6 July 2011 the Commission issued a Direction to Rectify defective building work to Mr Russell.
On 3 August 2011 Mr Russell filed application GAR232-11 in the Tribunal seeking review of the Direction to Rectify. At a compulsory conference on 25 November 2011 it was agreed between the Commission and Mr Russell, without any admission of liability by Mr Russell, that he would perform work at the house as stipulated by an agreed Scope of Works. It was a term of the agreement, that subject to satisfactory completion of the work, matter GAR232-11 would afterwards be dismissed.
Mr Russell performed work. The Commission was not satisfied with the work. The Commission advised Mr Russell by letter dated 6 December 2012 that the work undertaken was unsatisfactory rectification work done pursuant to the Direction to Rectify of 6 July 2011. By further application GAR003-13 Mr Russell has contested that decision by the Commission. Both applications have now been heard together.
The Direction to Rectify
The Direction to Rectify of 6 July 2011 identified the following defective building work:
1The "as constructed" footing and slab system is not in accordance with engineering design.
- Retaining wall details have not been provided by engineer nor certified.
- Masonry articulation has not been provided in accordance with engineering design or BCA requirements.
- Footings have not been constructed as per engineering design.
- Pier footings are not in accordance with continuous strip footing required by design documentation.
2Batters to rear of garage and RHS of lower ground floor does not comply with BCA 3.1.1 unprotected embankments.
3Site drainage and general and ground slope does not adequately divert surface stormwater away from dwelling in accordance with BCA 3.1.2.3, resulting in the collapse of embankments and consequential damage the building framing elements.
4Inadequate termite management system and inappropriate use of existing barrier system does not comply with AS3660 and has resulted in termite infestation structural timber framing.
5Retaining wall located on the RHS of the garage has structurally failed allowing water and moisture entry to structural wall frame.
The first issue for consideration is whether all or any of the defective building work identified in the Direction to Rectify is such. The matter is best addressed by reference to the general matters of complaint.
Retaining Walls
The land slopes down to the front of the property. The house is constructed on two-levels at the front and a single upper level at the rear. A garage was built at the front left of the dwelling as viewed from the street.
Prior to construction a pad was cut for a concrete slab on the ground floor. In the architectural drawings, from the rear of the garage back up under the raised rear of the house (the undercroft area) the ground is shown to initially fall away from the slab then battered back to natural ground then cut again under the timber floor at the back of the house, which floor is supported by posts. Then in the area behind the dwelling, the ground is shown to initially fall away from the rear of the dwelling.
The building pad was cut close to the adjoining property boundaries and at the sides of the pad the cut was almost vertical. The external wall of the left hand side (LHS) of the house is approximately 1.5 metres from the common boundary.
According to the report of Mr Vosper, Senior Building Inspector, who attended in June 2011, he saw damage and attributed it to two major factors. First ‘the external retaining wall along the LHS of the dwelling to garage’ had been forced out of place by soil filling between the bank of the cut and the wall of the dwelling. Second the batter at the rear of the property had allowed water to drain into the undercroft area under the raised rear upper floor level and enter the ground floor area towards the front of the dwelling[1].
[1]Exhibit 9 at p 9.
Mr Vosper and the engineer, Mr Van de Hoef, both concluded the block walls built on the left and right sides of the dwelling had been built as retaining walls. According to Mr Van de Hoef:
… regardless of what the intent was of the design documentation, it is relatively clear that during construction a retaining wall was constructed along the left hand and right hand sides of the ground floor of the dwelling. It is possible that the retaining wall was constructed with engineering advice and we can confirm that at the front left hand corner of the garage, the slab of the garage is approximately 270 mm thick. This type of slab thickness would be typical of a retaining wall footing.[2]
[2]Exhibit 10 at p 30.
A significant part of the evidence in this matter has concentrated on whether the block walls were retaining walls.
According to Mr Russell he did not build any retaining walls. Retaining walls were specifically excluded from the contract. The architectural drawings called for single skin brick cladding for both levels. No provision was made for any retaining wall by either the engineer or the architect. The approved architectural drawing specifically stated no retaining works were proposed in the construction.
Mr Russell stated in an affidavit that he felt the building would be more structurally sound by installing blocks on the lower level. Speaking specifically about the LHS wall, he said ‘I was also conscious of the fact that the neighbouring property was considerably higher close to that boundary. I discussed this with Mr Bagheri and he agreed the installation of a 1600 mm high block wall along the left hand side would be appropriate. This was constructed with steel reinforcing starter bars along the side’.[3] Mr Russell did the same with the RHS[4]. Mr Bagheri was supervising engineer on site.
[3]Exhibit 1 at [18].
[4]Exhibit 1 at [22].
The approved architectural drawings[5] bear the notation ‘No Retaining Proposed’ in item 5 under the heading Delfin Covenant Requirements. That notation appears to have been added to the amended architectural drawings. The draft drawings without that notation which had initially been provided to him had been used to quote for the job.[6]
[5]Exhibit 7 at pp 4 and 13.
[6]Exhibit 1 annexure CER-1.
His evidence is that when he quoted he did not have any engineering reports for footings or soil. He understood that was being organised by the architect. Accordingly he quoted subject to change in the event additional footings or retaining walls were required. In his quote, the following words are added at the foot of the document – ‘Price subject to footing and block wall retaining design’.
The engineering report provided to him by the owners did not extend to a retaining wall. Mr Russell says this was because the owners agreed to be responsible for landscaping, retaining walls and surface drainage to save costs. Mr Russell maintains it was very clear between the parties that the owners would make their own arrangements for those aspects of the work.[7]
[7]Exhibit 1 at [8].
Mr Russell’s position is that if the owners had built the retaining walls at both sides of the dwelling and in the undercroft as they had agreed, and performed the drainage work as agreed, the problem with soil filling the cavity between the LHS boundary and LHS block wall and behind the garage in the undercroft would not have occurred. The block walls would not have been forced to retain soil, and they were not built as retaining walls.
He had understood that at Springfield Lakes landscaping works were required to be carried out within a specified time after construction[8]. Mr Russell does not say however what those time limitations were, whether the owners knew of those requirements and what the consequences of breach were.
[8]Exhibit 1 at [9].
At hearing Mr Russell elaborated upon his assertion that it was structurally sound to install blocks as a base rather than the single skin brick wall specified. Blockwork was stronger and more adequately carried the 5.5 metre high brick work above. Support for this proposition was provided in somewhat muted fashion by the engineer, Mr Bagheri, who said ‘It is my understanding the concrete blocks presented hard wearing and durable surface as an interim base of the perimeter wall before the landscaping and external drainage system were completed by others’.[9]
[9]Exhibit 2 at p 3.
Further, said Mr Russell, the owner intended to put in a concrete path against the wall as part of the landscaping and one is able to achieve a much smoother join between concrete and block than between concrete and clay brick. He says this was discussed with Mr Dallinger, one of the owners.
None of this, I note, was in his original statements of evidence.
No evidence has been given by the owners. Shortly after the house was completed, the owners, Ms Taylor and Mr Dallinger, separated. Ms Taylor stayed living in the house. She was joined as a respondent in GAR232-11 on 2 August 2012, was ordered to file statements of evidence, did not, and was granted leave to withdraw from the proceedings on 24 October 2013. She was not called as a witness by the Commission, and her absence has not helped in this very confusing matter. Her hostility towards Mr Russell was commented upon by him and is supported by evidence[10]. Accordingly it is not surprising that she was not called by him.
[10]Statutory Declarations of Mr Cahoon and Mr Robert, Exhibits 19 and 20 respectively.
Mr Van de Hoef has concluded the block wall was built as a retaining wall. He first inspected the house on 7 June 2011, some four years after the home was finished. He observed silt and mud had washed down to fill much of the space between the block wall and the cut earth embankment and also up against the garage wall in the undercroft.
He proposed the following features of the block walls showed they were constructed as retaining walls. The thickness of the slab footing; the block work core was filled; steel reinforcement at close spacing; L-shaped starter bars connecting slab and wall; a drainage layer behind the retaining wall; tanking (waterproofing) of the block walls.
Mr Van de Hoef was asked whether those factors could also be attributable to construction for the simple purpose of a non-retaining block wall. He said there was no need for the drainage layer; no need for fully filled cores – the usual practice would have been to fill them with concrete every 1200mm or so; there was no need for tanking unless the tanking was intended to be covered by soil; no need for the vertical steel reinforcement every 400mm; no need for the ‘massive’ slab footing extending 1.5 metres back into the garage; no need for horizontal steel reinforcement at all.
Rectification work has been done on site. The LHS block wall has been demolished and the old block work examined. The reinforcement positions were examined. There were starter bars, vertical reinforcement and horizontal reinforcement, all at 400mm spacing. Those measurements are set out in the joint experts report[11]. In end result, Mr Van de Hoef was ‘100%’ certain the block walls were built as retaining walls.
[11]Exhibit 5 at p 1.
Concerning the tanking, Mr Russell claims that that was black pitch coating to a height of 1 metre in anticipation of Mr Dallinger laying his concrete path in approximately eight serried steps down the LHS block wall. That was to prevent water entering the garage after the concrete path had been laid and make adequate provision for the rise and fall of the steps.
No particular reason was given by him for the slab thickening under the block walls.
The contract price was based on a quotation which excluded costs associated with footing and block wall retaining design. The architect’s drawings made no provision for retaining walls, nor is it to be found in the engineered footing design.
According to Mr Russell, Mr Bagheri the engineer was present when the block wall was built. Mr Bagheri says the block walls were not retaining walls. He said he inspected the structural aspects of the building on 21 February 2007[12]. There was no drawing for a structural retaining wall, the block wall was not constructed as a retaining wall and the reinforcement in the block wall was not intended to resist bending as it does in a retaining wall[13].
[12]Exhibit 2 at p 2 item 1.
[13]Ibid p 3 item 3.
Mr Russell complained at hearing that the Commission and its experts failed to take into account the site conditions when he left the work site in 2007. Rather they assumed the site conditions in 2011 were similar to the site conditions in 2007, and that was where they erred. I think there is some truth to that assertion.
Finally there is an email of 14 November 2007 from Mr Russell to Ms Taylor telling her to keep the drains at the back of the house and on the LHS clear of mud and debris[14]. That statement is not consistent with the proposition that the block wall on the LHS was intended to act as a retaining wall.
[14]Exhibit 4 annexure marked 11.
Be that as it may however, I feel I cannot ignore the evidence of Mr Van de Hoef. On balance, I conclude that the block walls were built as retaining walls given the exceptional features they display supporting that proposition. There is no adequate explanation given by Mr Russell as to why he changed the design in such particular fashion, whether with or without the consent of Mr Bagheri. I cannot accept the additional features voluntarily added by Mr Russell happily coincided with all necessary requirements of a retaining wall. Mr Bagheri filed a statement of evidence but was not available for detailed questioning.
The telling features in particular with respect to the retaining wall are the fully filled cores, the close spacing of the vertical reinforcement and the use of closely spaced horizontal reinforcement where none would usually be necessary.
I do not know why the single skin brick wall base was changed to a block retaining wall. I conclude however that this was done. The retaining walls failed however, at least on the LHS, because, as suggested by Mr Van de Hoef, which suggestion I accept, the starter bars (L shaped reinforcement linking slab to wall) were incorrectly positioned to resist vertical deflection inwards and rotation.
A failure to obtain engineering design and approval for construction of the retaining walls is defective building work.
RHS or LHS
That does not conclude the issue concerning retaining walls however. There is yet another strange twist to this matter. It is undoubtedly the case that the failed retaining wall was on the LHS. However the Direction to Rectify of 6 July 2011 specifies that the RHS retaining wall of the garage has failed.
In the initial inspection report by Mr Vosper dated 7 June 2011[15] he makes it clear that the retaining wall that has failed is on the LHS of the dwelling to the garage. No mention is made of the RHS. The photographs attached to his report showed the LHS.
[15]Exhibit 9 at p 9.
In his first report Mr Van de Hoef[16] identifies the failed retaining wall as the one on the LHS of the dwelling, the left hand side of the garage.
[16]Exhibit 10 at pp 30 and 35.
The Commission initially issued a Direction to Rectify on 9 June 2011 whereby it identified as defective building work the structural failure of the block retaining wall located on the LHS of the lower garage. No mention was made of the RHS retaining wall.
But on 1 July 2011 Mr Vosper suggested by in-house memorandum[17] that that existing Direction to Rectify be reissued with altered wording eventuating in the form of the Direction to Rectify of 6 July 2011. In particular item 5 was suggested to now read ‘retaining wall located on the RHS of the garage has structurally failed allowing water and moisture entry to structural wall frame’. No explanation was given as to why the change was made from LHS to RHS other than Mr Vosper says in his memorandum that on receipt of the engineer's report it was prudent to reissue the Direction.
[17]Exhibit 7 at p 257.
What is clear is that Mr Van de Hoef concludes in his report of 26 February 2013 that there was no evidence ‘that indicated the retaining (wall) located on the right hand side of the garage had failed’[18].
[18]Exhibit 11 at p 43.
Throughout the hearing all parties consistently addressed the failed retaining wall on the LHS of the garage, and ignored the Direction to Rectify in so far as it identified the wall on the RHS of the dwelling. All parties concurred that the LHS was established from the point of reference looking from the roadway fronting the property towards the building.
In light of Mr Vosper’s comments in the memorandum of 1 July 2011, I am unable to conclude that the reference to the RHS retaining wall in lieu of the LHS retaining wall is a typographical error. Mr Vosper may have misunderstood Mr Van de Hoef’s advices or his initial report. His reports are a little hard to follow. Exactly why the change from LHS to RHS has been made is unclear to me, but what seems clear is that the change was purposive.
Whatever the reason, the Commission has had over two years to correct the Direction, if it needed correction, and that has not been done. Accordingly the Direction to Rectify ‘Retaining wall located on the RHS of the garage has structurally failed allowing water and moisture entry to structural wall frame’ must be considered as it stands. The evidence is clear that the assertion is wrong. The retaining wall on the RHS has not failed. Therefore that Direction cannot be confirmed by the Tribunal.[19]
[19]See Steel v QBSA [2013] QCAT 439 at [39 – 40].
Batters
The Direction to Rectify identifies defective work associated with the batters to the rear of the garage and RHS of the lower ground floor. The batters do not comply with BCA 3.1.1 requirements for unprotected embankments under 2 metres.
The BCA is the Building Code of Australia. The Sustainable Planning Regulation 2009[20] prescribes the BCA as a code or prescribed matter that applies in the assessment of building work requiring code assessment. Accordingly standard conditions set by the development approval for this construction included compliance with the requirements of the Building Act 1975 (BA) and also the BCA and all other relevant Acts and Standards.
[20]Schedule 5 Part 1 Item 1.
BCA table 3.1.1.1 requires retaining walls or other soil retaining methods be utilised where the slope ratio is steeper than described in the table for various soil types. In firm clay, which appears to be the classification of this site, the height:length ratio is 1:1. That is, a slope greater than 45° requires a retaining wall or some other type of soil retention.
According to Mr Van de Hoef, when he first inspected the dwelling in June 2011 he noted the ground in the subfloor area (undercroft) appeared to be finished with an almost vertical cut batter. The original cut batter appeared to have partially collapsed.[21]
[21]Exhibit 10 at p 25.
Mr Russell's evidence[22] is that after excavating in the undercroft it became apparent to him that a retaining wall was necessary to support the embankment. He raised the matter with the owners and quoted for a timber retaining wall. The owners rejected his quote and said they would do it themselves.
[22]Exhibit 1 at [36].
On final inspection on 26 May 2007, according to Mr Russell, the Certifier suggested[23] a sleeper wall be used to protect the rear embankment. In an email from Mr Russell to Ms Taylor on 27 May 2007[24] the suggestion had changed to the Certifier wanting a sleeper wall 2m high in the undercroft , and Mr Russell enquiring whether she wanted him to do that.
[23]Ibid at [40].
[24]Ibid annexure CER-12.
Apparently Ms Taylor did not. Mr Russell wrote to the Certifier on 4 June 2007 confirming the owners intended to build a sleeper wall behind the garage themselves. On the letter there appears the hand notation ‘20 June, 2007 I agree with what I have discussed with Cedric’, followed by a signature under the name Keith Dallinger.
It is not quite clear from the letter just what Mr Dallinger agreed with Mr Russell. Mr Russell asserts it was confirming that the owners were to attend to the sleeper wall themselves.
A final inspection certificate was given. I note however the final inspection certificate produced in evidence does not appear to be conditional. There are no notations of non-compliance with the BA, BCA or the development permit.
Mr Russell's evidence is that the embankments in the undercroft and on the RHS of the lower ground floor, were never intended to be unprotected. ‘It was always intended that the owners would carry out all necessary retaining works as they advised me on more than one occasion’.[25]
[25]Ibid at [74(f)].
Despite Mr Russell's criticism that the Commission and its engineer could not know what the batter was in the undercroft when the engineer was on site by viewing the batter four years post event, I conclude from Mr Russell's own evidence that as at the day he left the site the batter slopes in question exceeded 45° and required a retaining wall or some other type of soil retention to be utilised to make it compliant with the BCA. I conclude this was the case despite Mr Russell taking out four truckloads of soil from the undercroft area and his assertion that he therefore complied with BCA table 3.1.1.1.
The BCA is a uniform set of technical provisions for the design and construction of buildings and is intended to ensure structural stability. Breaching the provisions of the BCA by failing to meet the uniform building standards breaches the development approval for the work and constitutes defective building work. The Commission may direct a person who carries out defective or incomplete building work to rectify the building work.[26] The term “defective” in relation to building work includes faulty or unsatisfactory work.[27]
[26]QBCC Act s 72(1).
[27]Ibid Schedule 2 Dictionary.
Mr Russell asserts that the failure of the owners to carry out retaining work on the batters in the undercroft and on the RHS cannot be his responsibility. Essentially he is saying it was not part of the contract and therefore he should not be subject to a direction from the Commission to rectify that omission. I do not agree.
Section 72(2) of the QBCC Act makes it clear that the Commission may take into consideration all circumstances it considers are relevant, not only the terms of the contract.[28] Section 72(1) concerns the identification of defective building work, not fault attribution. The initial question to be determined by the Commission is simply whether or not faulty or unsatisfactory building work has been identified. Thereafter there is a discretion to be exercised by the Commission whether it is appropriate in the circumstances to require the builder to rectify the defective work.
[28]R v His Honour Judge Miller and the Builders’ Registration Board of Queensland [1987] 2 Qd R 446 at 458 per Derrington J.
Given my conclusion that BCA table 3.1.1.1 applied to the batters in question and required retaining walls or another type of soil retaining method to be installed, it is no answer for the builder to say that that work was not part of the contract. There was a failure to comply with BCA table 3.1.1.1 with respect to the batters in question and leaving the batters in that condition was defective building work.
Site Drainage
The Direction to Rectify identifies defective building work in that site drainage and general and ground slope does not adequately divert surface stormwater away from the dwelling in accordance with BCA 3.1.2.3 resulting in the collapse of embankments and consequential damage to the building framing elements.
Mr Van de Hoef states that on the basis of his site inspection on 7 June 2011 he was able to conclude that the general site drainage at the rear of the property was poor, with the ground surface falling in a moderate slope towards the rear of the dwelling. At the time of inspection he was not aware of any work by the builder to control stormwater drainage on the property during or by end of construction.[29]
[29]Exhibit 10 at p 30.
Australian Standard AS 2870-1996 establishes performance requirements for work in reactive clay sites. It provides an acceptable performance solution to comply with the BCA. Clause 5.2.1 of the standard provides that drainage must be designed and constructed to avoid water ponding against or near footings. The ground in the immediate vicinity of perimeter footing including ground uphill from any slab on cut and fill sites must be graded to fall 50 mm minimum away from the footing over a distance of 1 metre.
The Standard also provides at 5.5.3 that the drainage system for a Class H site must be completed by the finish of construction of the house.
The footing design designates this site as a Class H site. The footing design also includes requirements that soil slope away from the footings at a minimum of 1:20 grade for a minimum distance of 1.2 metres.[30] I note it also provides that with Class H sites it is recommended that the soil within 1.2 metres of the building perimeter be covered with an impermeable membrane such as concrete, paving or plastic sheeting. That is not a mandatory requirement however, and Mr Van de Hoef agreed that that was additional to the base requirement that the land slope away from footings.
[30]Exhibit 7 T p 22 item 5.
I note the Standard also specifies maintenance of such sites for the economic life of the building[31]. That is obviously an obligation cast upon the home owner.
[31]Exhibit 24 Appendix B, item B2.3.
Mr Van de Hoef’s principle complaint here was that at the time of construction the soil was not graded to fall away from the footings as required by the BCA, Standard AS 2870-1996 and the footing design.
Mr Russell’s evidence is to the contrary. He says he left the site with drainage in place as required by the BCA.
He points to a photograph taken of the ground behind the rear deck depicting the area in 2007[32] and photographs taken of the same area in 2011[33]. The photograph depicting the rear of the house in 2007 certainly appears to show the ground falling away from the concrete base of the supporting posts, perhaps for a distance of 1 metre or more. That is my impression from the photograph, though not the view of Mr Van de Hoef. It certainly contrasts with the photographs depicting the site in 2011 and the contrast is also marked when compared to the photograph of the area included in the first inspection report of Mr Vosper of 7 June 2011.[34]
[32]Exhibit 1 annexure CER-18.
[33]Ibid annexure CER-19.
[34]Exhibit 9 at p 11; see also photographs in Exhibit 10 at p 62.
Mr Russell agrees the site drainage was inadequate as at 2011, but attributes that to the failure of the owner, Ms Taylor, to carry out maintenance over the four years following completion of the construction. His evidence[35] is that, though general site drainage was not part of his contract, he arranged for a plumber, Mr Mauger, to install agricultural drains on both sides of the house, to install a gravel pit which ran down to a sump behind the slab area and to install a yard or surface drain behind the back right hand corner of the house.
[35]Exhibit 1 at [30] – [35].
He also had the plumbing contractor install a storm water point to take the water to the storm water drain on the RHS of the property. Mr Mauger gave evidence and confirmed he put in a yard drain and storm water point[36]. He was not clear after the passage of seven years where the storm water point was, left or right sides, but I accept Mr Russell’s evidence that the point was towards the right side of the house. The storm water point connected to the stormwater drainage system and that system was on the RHS of the house. I note Mr Mauger said he installed the storm water point at the lower side of the fall of ground. That makes sense.
[36]Exhibit 6 confirming Statutory Declaration by plumber Stephen Mauger.
Unfortunately Mr Van de Hoef had little to no discussion with Mr Russell when they were both on-site. I accept Mr Russell's evidence concerning the drainage work he said he did before leaving the site. Mr Van de Hoef’s evidence is based entirely on his observation of the site conditions existing as at June 2011. He acknowledged at hearing that he had not been aware of any drainage work done by Mr Russell (or Mr Mauger).
I note both experts conclude in the joint experts’ report that the surface drainage of the allotment was not in place at the completion of building works. Whilst Mr Bagheri was on site during part of the construction, it is not clear he saw the site at end of construction or knew of the drainage put in by Mr Mauger.
According to Mr Mauger, the drainage he installed was adequate until landscaping was performed. I accept the evidence from Mr Russell and Mr Mauger that the drainage work claimed to have been done was done. I conclude that as at date of end of construction, soil was graded to fall away from the footings as required by the BCA (and Standard AS 2870-1996 and the footing design). I do not conclude that the drainage work done was inadequate in terms of the requirements of the BCA and therefore defective building work.
Footings
The Commission has resiled from the Direction to Rectify that pier footings are not in accordance with continuous strip footing required by design documentation.
The Commission still maintains however that the footings have not been constructed in accordance with engineering design. What aspect of the construction of the footings is not in accordance with engineering design?
The only mention of footings in the joint expert's report is the heading ‘discontinuous footings at the interface of upper and lower floors’ followed by the statement ‘original construction was unsatisfactory’.[37]
[37]Exhibit 5 at p 2.
Mr Russell’s evidence is that the footings and slabs system have been constructed in accordance with the approved plans.
Mr Van de Hoef dug two test pits next to the footings on his initial inspection of the premises. His first report states: ‘At the location of the test pit, as best we can determine, the strip footing supporting the external masonry walls, was approximately 300mm in depth. This 300mm depth measurement is consistent with our observations made in the sub-floor area of the dwelling. It is relevant to note that the "as-designed" footing depth was 600mm. As a result of the information obtained at the location of the two test pits, it would appear to be logical to conclude that the footing system of the dwelling has not been constructed in accordance with the design documentation.[38]
[38]Exhibit 10 at p 27.
Mr Van de Hoef’s observations as to the depth of the footings under the block walls is supported by a letter from the builder who actually performed the excavation.[39]
[39]Exhibit 7 Letter FW (Wayne) Keys dated 6 July 2011.
However in the conclusions to his first report Mr Van de Hoef states his recommendation is not to rectify any inadequacies in the ‘as-constructed’ footing system. He says it is his expectation that regardless of any abnormal moisture influence removal, good ongoing performance to the buildings footing system will not be achieved. Determination of the ongoing performance to the buildings footing system should be undertaken in conjunction with medium-term monitoring. Should it be found that ongoing problems with the buildings footing system occurs in the future, then additional rectification works should be undertaken.
I take it Mr Van de Hoef is concluding that the footings have not been constructed in accordance with design though they had not failed as at the date of his report.
Mr Bagheri’s affidavit evidence was that he inspected the structural aspects of the footings and slab at the building stage on 3 and 8 October 2006 respectively.[40] ‘The ‘as built’ depth of the footings was nominally 600 mm at the critical section along the perimeter wall. The depth, width and steel reinforcing of the footings for the lower ground level with slab on ground are in accordance with the design documentation; the excavations for the perimeter footings of the lower slabs on ground were all minimum 500 mm (nominal) deep.’[41]
[40]Exhibit 2 at p 2.
[41]Ibid p 3.
Mr Bagheri was not called to give evidence at the hearing. His evidence is contrary to that of Mr Van de Hoef. It is not clear how Mr Bagheri concludes excavations for perimeter footings to a minimum of 500mm (nominal) are in accordance with the design documentation. The footing design documentation requires excavations for the footings to be 600mm below the prepared platform level.[42]
[42]Exhibit 7 at p 18.
I must conclude the footing design documentation has not been followed, the footings have been constructed to a depth less than 600mm as required and accordingly constitute defective building work.
Termite Management
The engineering experts agree there are ‘indications’ a termite treatment has not been properly installed in some locations[43]. The termite treatment was performed by an independent contractor and a certificate of compliance was provided. The installer’s note shows 16m2 of Kordon termite barrier was applied to the LHS block wall and 7 lineal metres of Kordon applied to the RHS block wall.[44]
[43]Exhibit 5 Joint Experts Report.
[44]Exhibit 1 at p 42.
According to Mr Van de Hoef, the termite barrier had been applied to the inside face of the ‘retaining wall’ and that was unusual[45]. It is not clear whether he means the barrier would usually be applied to the outside of the block wall if it was a retaining wall, and otherwise if not, or in what respect it was unusual.
[45]Exhibit 10 at p 31.
Mr Van de Hoef also maintains the Kordon barrier was punctured by masonry nails into the block work. On the certificate of compliance the applicator certifies that any product punctures had been repaired.
Mr Van de Hoef also suggests that termite cap flashings had been incorrectly discontinued in the subfloor area and the Kordon membrane had been removed to allow for the penetration of a switchboard. Mr Van de Hoef admits however that he is not an expert with respect to termite management systems and recommended further investigation by a suitably qualified person. There is no additional expert evidence concerning the termite barrier however. There is no copy of standard AS 3660 referred to in the Direction to Rectify produced to the Tribunal nor has it been made clear what part of that standard has been breached.
The first Direction to Rectify dated 9 June 2011 attributed a failure in the termite barrier to the collapse of the batter in the undercroft and the resultant water entry into the lower floor areas, not the barrier itself.
The applicator’s certificate certifies that the barrier has been installed in accordance with the BCA. On the material before me, on balance, I conclude that the failure of the termite barrier was most probably the result of the collapse of the batters in the undercroft area rather than misapplication of the termite treatment during construction. Any loss of effectiveness of the termite barrier is more appropriately attributable to the breach in the batter slope rather than the application of the barrier. I cannot conclude the termite barrier system used was inadequate and inappropriate at the time of construction.
Masonry Articulation
The Direction to Rectify further specifies the ‘as constructed’ footing and slab system is not in accordance with engineering design in so far as masonry articulation has not been provided in accordance with engineering design or BCA requirements.
The footing design specifies that all brickwork must have full height articulation (expansion and contraction control joints) at a maximum spacing of 6 metres.
Mr Van de Hoef stated in his first report that the masonry along the LHS and front was effectively non-articulated and he thought a cut in the brickwork had been recently cut by a saw, inadequately. Mr Russell denied any such addition by him. He also maintained that he had included masonry articulation at approximate 4 metre intervals, which more than complied with the footing design requiring 6 metre spacing. He referred the Tribunal to photographs showing masonry articulation.[46]
[46]Exhibit 1 at pp 46 and 47.
The problem with masonry articulation receives very limited coverage in the Commission’s material. The work agreed to be done by Mr Russell in the compromise agreement of 26 March 2012 does not include additional masonry articulation work, though the need for that may be in part subsumed with the replacement of brick cladding on the LHS with 8mm blue board. I note the reference in the rectification scope of works to an existing expansion joint at the en-suite window.
I accept Mr Russell's evidence. There is no evidence that he cut in any masonry articulation joint after (or during) construction. There is some photographic evidence showing articulation. I do not conclude masonry articulation has not been provided in accordance with engineering design or BCA requirements.
Discretion
I have concluded, above, that there are some items of defective building work identified in the Direction to Rectify.
A determination that building work is defective or incomplete then leads however to the question, is it reasonable in all the circumstances, to direct rectification?[47]
[47]QBCC Act ss 72(1) and 72(14).
One such circumstance seems to me to be the role played by the owners in contributing to their own misfortunes.
I accept the owners agreed to be responsible for landscaping, retaining walls and surface drainage. I conclude this was to save them money. Mr Russell says if they had done that work most of the problems with soil and water would not have occurred. Further, Ms Taylor’s failure to undertake even marginal maintenance with respect to the drainage installed has contributed to her own problems.
With respect to the undercroft area, Mr Russell quoted as additional work to the contract, construction of a sleeper wall behind the garage. The owners rejected that proposition in favour of doing it themselves[48].
[48]Exhibit 1 annexure CER-15.
Mr Mauger, the plumber, had put in temporary drainage during construction, which he said was adequate for a short time until the property was landscaped. I accepted his evidence.
I conclude that over the period 2007 to 2010 Mr Russell advised Ms Taylor on more than one occasion that she must carry out landscaping work and build the sleeper wall in the undercroft area to prevent the buildup of sediment. I also accept he advised her that until the landscaping and retaining works were done it was necessary to ensure the yard drain put in by Mr Mauger was kept clean and not blocked by mud and silt. I find Ms Taylor did nothing about any of that but was well aware of the work required to maintain the property and she was also aware of the potential detrimental outcome if the work was not done.
Mr Russell sent an email to Ms Taylor on 14 November, 2007[49] advising her to keep the seepage drains on the LHS of the house cleared of rubbish and mud. He had cleaned them out a week prior. He advised that he had dug a spoon drain at the back of the house so the water runoff from the back yard would not run into the undercroft. He also stressed to her that keeping both drains clean at all times to prevent water and mud build up under the house was important.
[49]Exhibit 4 annexure marked 11.
Prior to that however, on 8 November 2007, Ms Taylor had emailed Mr Russell to say she was very concerned about flooding at her property. Water had seeped up under the floating floorboards in the entry to the building and the boards had warped.[50] By an email on 14 November 2007 responding to Mr Russell’s rebuke about keeping the drains clean, Ms Taylor said she would be making her own enquiries. She also said she was concerned there could be structural damage as a result of the flooding now or in the future.
[50]Ibid.
I conclude that from at least end 2007 Ms Taylor was aware of soil buildup on the LHS of the house where there shouldn't be, advised of the importance of preventing mud and water build up in the undercroft and aware of water entry into the dwelling, actual damage in result and further potential damage possible.
Ms Taylor did nothing about any of that however. Whilst Mr Russell's obligations as builder to build in accordance with the requirements of the BCA are not reduced by these factors, they are factors that should in my opinion be taken into account to decide whether it is reasonable in all the circumstances to direct rectification.
The Commission makes policies governing the administration of the QBCC Act[51]. One such policy is the Rectification of Building Work Policy[52] which states a consumer should not delay making their application for a direction to rectify if the delay would result in the issue of the direction being unfair or unreasonable in the circumstances. It may be unfair or unreasonable to issue a direction if, for category one defective building work (water entry) the delay exceeds 3 months after the defective work becomes apparent. For category 2 defective work, a delay exceeding 6 months after the building work was completed or left incomplete may be unreasonable.
[51]QBCC Act s 19(1).
[52]QBCC Regulations 2003 Schedule 1A.
In Ms Taylor’s complaint to the Commission made 29 March 2011 she claimed the first time she noticed water coming in from under the house into the house was 29 December 2010. She specifically refers to water coming into the entry and damaging floorboards, and points to the cause as water entry from under the house. In light of her emails of 8 and 14 November 2007 I do not accept that was true. I conclude she was aware for years prior to that of the problems with respect to water entry and soil and mud build up resulting in damage to her property.
Had she complained to the Commission in late 2007 or early 2008 in my opinion the drainage and retaining wall issues could have been addressed then at hugely reduced cost and effort.
I find that that delay was in breach of the stipulations of the Rectification of Building Work Policy, and taken together with the failure of the owners to perform landscaping or retention works as agreed or perform even marginal maintenance in respect of the drainage left on site at the end of construction, makes it unfair and unreasonable to direct Mr Russell to rectify the identified defective building work.
Additionally I might add it is not inappropriate in my view, given the review is by way of fresh hearing on the merits, to also take into account the work performed by Mr Russell pursuant to the compromise agreement which is discussed below. Mr Russell has performed a significant amount of work remedying the matters of complaint set out in Direction to Rectify of 6 July 2011, without any admission of liability that he was obliged to do so. Some of that work I have found was his defective building work. Some, however, I have concluded was not. This is a factor which firms my conclusion that is unfair and unreasonable to direct Mr Russell to now rectify the identified items of defective building work.
Compromise
During compulsory conferences in November 2011 and February 2012 the parties entered into an agreement potentially compromising GAR232 – 11. The agreement was that Mr Russell would perform certain work at the property as stipulated in an attached Scope of Works document. If the work was performed to the satisfaction of the Commission the Commission would withdraw the Direction to Rectify of 6 July 2011 and GAR232–11 would be dismissed by consent. Mr Russell’s performance of that agreed work would be without any admission of liability with respect to the Direction to Rectify.
The agreement was subject to and conditional upon the Commission making the necessary arrangements with Ms Taylor to ensure the builder was given unimpeded access to carry out the work.
According to Mr Russell, because of adverse weather conditions, he couldn’t start the work until late May 2012. When he did, he said Ms Taylor restricted and at times refused him access.
Following a further compulsory conference on 22 October 2012 the Tribunal ordered that Mr Russell complete the agreed work under the compromise agreement on before 30 November 2012.
A Commission building inspector attended to inspect the partially completed works on 7 November 2012. He reported that the works were defective. The building inspector did not discuss the work with Mr Russell.
On 28 November 2012 a further inspection occurred. Mr Russell was present. Also present was Mr Van de Hoef who subsequently reported that a significant proportion of each aspect of the ‘rectification works’ implemented on the site was unsuitable for its intended application.[53] Included in the agreed work was construction of a retaining wall along the LHS of the building, modifications and repairs to the LHS of the dwelling, construction of a new concrete support beam to support a section of existing footing and stabilisation of the batter slope at the rear and right hand side of the undercroft.
[53]Exhibit 10 at p 92.
The joint experts report states that the batter slopes had not been rectified, further termite management issues remained and there were defects relating to notched studs. There was a difference of opinion between the experts as to the repairs necessary for the damaged block wall on the LHS. There were also issues concerning embankment heights and backfill to the extra retaining wall Mr Russell had built on the LHS of the house.
According to Mr Russell, he had completed the bulk of the agreed work and the items outstanding were ‘cosmetic’. He failed to complete those cosmetic items because the owner restricted access and the Commission failed to ensure adequate access. They had agreed to do that in the compromise agreement.
The Compromise Agreement
Over the period 26 March 2012, the date of the compromise agreement, through to 30 November 2012, the date set by the Tribunal for completion of the work under the agreement, the status of the agreement became an issue between the Commission and Mr Russell.
The Commission viewed the compromise agreement as rectification work in compliance with the Direction to Rectify of 6 July 2011. Mr Russell maintained he was performing work pursuant to the compromise agreement, not rectification work in compliance with any obligation to rectify associated with the Direction to Rectify of 6 July 2011.
The Commission wrote on 23 October 2012 identifying the agreed work being done as work undertaken at the direction of the Commission. Mr Russell’s solicitors challenged that position by letter dated 26 October 2012 denying the work was being done under any current obligation to comply with the Direction to Rectify. They stated ‘…our client has agreed to carry out certain works and the Authority has agreed that if those works are carried out to the Authority’s satisfaction, it will exercise its discretion to withdraw the direction to rectify’.
Then the Commission replied on 31 October 2012 that because Ms Taylor had then been joined as a party to the proceeding the compromise agreement had been frustrated and thereby discharged.
I do not understand the reasoning of the Commission about frustration of the compromise. Ms Taylor was joined as a party to the proceeding but was no party to the compromise. As stated by the solicitors to the Commission in a letter of 6 November 2012, there was nothing to stop either the Commission or Mr Russell completing their respective obligations under the compromise. The solicitors further noted Ms Taylor in fact wanted no involvement in the proceedings and wanted to be removed as a party to the proceedings, as indeed she was on 24 October 2013.
The compromise agreement is deficient as to consequence should the Commission not be satisfied by the builders work. It does not cover that contingency explicitly. The only contingencies covered are listed at item 7 of the agreement that the agreement was conditional on the Commission making arrangements with Ms Taylor for access for Mr Russell to do the agreed work, and Mr Russell securing an agreement with Ms Taylor about use of bored piers. In the event that her consent was not obtained (though it apparently was) the Direction to Rectify was not activated, but QCAT application GAR232-11 challenging the Direction to Rectify proceeded.
I conclude that was is clear, or intended by the document is that the builder was not agreeing to perform rectification of defective work identified in the Direction to Rectify by performing the agreed work.
Accordingly regardless of the adequacy or otherwise of the agreed work, it was not open to the Commission to write to Mr Russell on 6 December 2012 informing him that the agreed work he had done pursuant to the compromise was unsatisfactory rectification work performed in compliance with the Direction to Rectify of 6 July 2011.
That decision by the Commission is reviewable by the Tribunal.[54] Application GAR003-13 is therefore concluded with my finding that the agreed work performed by Mr Russell pursuant to the compromise was not rectification work in compliance with the Direction to Rectify of 6 July 2011 and the decision of 6 December 2012 should be set aside.
[54]QBCC Act s 86(1)(f). The expression used in that provision is tribunal work. When this jurisdiction was exercised by the former Queensland Building Tribunal under the Queensland Building Tribunal Act 2000 (repealed) what is now described as "tribunal work" was then described as "building work", and the use of the expression tribunal work was adopted to avoid confusion.
In consequence it is not necessary to consider the adequacy or otherwise of the work done by Mr Russell pursuant to the compromise.
Costs
Both parties have indicated they would like to make submissions as to costs, which is appropriate but should be determined on the papers.
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