Schilling v Queensland Building and Construction Commission
[2014] QCAT 613
•25 November 2014
| CITATION: | Schilling and Anor v Queensland Building and Construction Commission [2014] QCAT 613 |
| PARTIES: | Brian Schilling and Christie Schilling (Applicants) |
| v | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | GAR415-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 22 August 2014, 28 October 2014 |
| HEARD AT: | Hervey Bay |
| DECISION OF: | Member Lewis |
| DELIVERED ON: | 25 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Queensland Building and Construction Commission made on 16 August 2013 not to direct rectification work on the applicants’ property is set aside so far as it relates to item 7 (kitchen cabinets) of the complaint items, and the Queensland Building and Construction Commission is directed to reconsider that matter. 2. The Tribunal directs that in its reconsideration, the Queensland Building and Construction Commission proceed on the basis that defects relating to edge stripping and swelling or deformation of the cabinetry form part of the defect the subject of the original complaint, and that the complaint was made in compliance with the Queensland Building and Construction Commission’s relevant time limits. 3. Except with respect to complaint item 7, the Tribunal confirms the decision of the Queensland Building and Construction Commission. |
| CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW – RECTIFICATION OF BUILDING WORK – where the owner made a complaint – where the Commission decided not to order further rectification work – where the owner seeks further rectification – whether work is defective – where cost of rectification is high – whether a direction to rectify would be unfair in the circumstances – where some defects had deteriorated since original notification – whether a matter should be remitted for reconsideration Queensland Building and Construction Commission Act 1991, ss 71A, 72, 86, 87 |
APPEARANCES:
| APPLICANT: | Brian Schilling Christie Schilling |
| RESPONDENT: | Queensland Building and Construction Commission |
REPRESENTATIVES:
| APPLICANT: | In person |
| RESPONDENT: | represented by Ms C Farthing, lawyer of QBCC (22 August 2014); Mr S Formby, lawyer of QBCC (28 October 2014) |
REASONS FOR DECISION
The applicants Mr and Mrs Schilling owned a parcel of land at Lindah Road West, Maryborough. They signed a contract with Alan Montier trading as Alroma Homes on 12 March 2012 for construction of a house on their land. Construction was completed in either August or September 2012.
The applicants were dissatisfied with various aspects of the construction, and after some correspondence with the builder, eventually filed a complaint with the respondent[1] on 21 March 2013. The complaint outlined eight items of alleged defective work.
[1]Then the Queensland Building Services Authority.
The Commission inspected the building on 30 April 2013, with the applicants and the builder. It issued a report and on 17 May issued a Request to Rectify to the builder, relating to five items. It advised the owners that it would not require the builder to attend to the remaining three.
The builder carried out some work and the Commission inspected the building a second time on 18 July 2013, and issued a second inspection report. There followed various correspondence between the Commission, the builder and the applicants, and ultimately a third inspection was made on 14 August 2013. The third inspection report concluded that the issues of concern to the Commission had been attended to. The Commission wrote to the applicants on 16 August advising that it did not propose to take further action.
The applicants seek a review of the respondent’s decision not to require the builder to rectify what they say are unresolved defects. It is convenient to deal with each alleged defect in turn, but as aspects of the relevant law are common to all matters, I will set these out briefly.
Section 71A of the Queensland Building and Construction Commission Act 1991 permits a consumer such as the applicants to apply to the Commission to seek to have it direct rectification of building work. Section 72 empowers the Commission to direct the person who carried out the building work to rectify the work if it is of opinion that it is defective or incomplete.
The Commission may take into consideration all the circumstances it considers reasonably relevant, including any warranties in the contract.[2] It is not required to direct rectification if in the circumstances it would be unfair to do so.[3]
[2]Queensland Building and Construction Commission Act 1991 s 72(2).
[3]Ibid s 72(14).
The tribunal is empowered to review a decision to direct or not to direct rectification[4] and a person affected by the decision may apply to the tribunal for such a review.[5]
[4]Ibid s 86(1)(e).
[5]Ibid s 87.
In practice, the Commission usually issues a Request to Rectify if after inspection it considers there is a defect which the builder should rectify. If the matter is not resolved the Commission may then issue a direction.
Of the original eight complaints, the applicants were content to accept the results in respect of three matters. The other five remained the subject of the review.
Roof sarking and compliance with bushfire standards
The subject land is situated in a rural area and is just less than four hectares. When plans were being prepared, a bushfire report was prepared by designer Anthony Nelson. He concluded that the site was classified at a Bushfire Attack Level (BAL) of 12.5. The site was in an area of Medium Bushfire Hazard under a planning scheme map of the local authority. These factors triggered a requirement to comply with bushfire risk mitigation requirements of the Building Code of Australia, in turn requiring compliance with Australian Standard AS3969 (2009).
The building did not comply with the standard in that while the builder had installed some extra sarking or insulation in the roof cavity, it did not extend to the corners of the hip ends, and in some sections did not extend to the fascia, causing gapping of in excess of 3 mm. This allowed for the possibility of embers entering the roof space. The Commission assessed this as a category 1defect (adversely affecting health and safety) and included it on its Request to Rectify.
The builder commissioned a report from a Mr Adrian Hansen, an expert in bushfire planning and design. Mr Hansen also gave evidence at the hearing. He did not inspect the site but did review relevant mapping data and aerial photography. Hansen’s report is technically complex, but in effect he says that taking into account vegetation clearing since the original mapping had been done, and considering the current state of the vegetation in the area, it should no longer be assessed as a medium bushfire hazard area under the relevant state planning policy, but should be assessed as low. This meant that the area was no longer a “Bushfire Prone Area” and therefore there was no longer a need to comply with the council’s Bushfire Hazard Management Code, and in turn no longer a need to comply with the Building Code or the Australian Standard.
In effect he said that while Nelson’s assessment of a BAL of 12.5 was right, if one applied the state planning policy and correctly assessed the Bushfire Hazard level as low (rather than medium as in the council maps) the need to apply the local authority Management Code was not triggered. The BAL of 12.5 did not then trigger a compliance requirement. Hansen also said that he was qualified to reassess the hazard level for the local authority under the state planning policy.
The upshot of all this was that the builder argued that if the code no longer applied, there was no defective work which needed to be rectified. The Commission accepted that. The applicants did not.
Perhaps unsurprisingly the applicants did not accept the correctness of this tip-toeing through the various codes and policies, and the analysis is very confusing. Their enquiries did not reveal that Hansen had any particular accreditation with the Fraser Coast Regional Council. However Mr Hansen gave evidence that he was, and confirmed his analysis at the hearing. The tribunal accepts that he does have the necessary expert qualifications. The applicants did not call any evidence from the council, nor any evidence from any other expert. In those circumstances the conclusion must be that the downgrading of the hazard level is correct, and it follows that the building no longer needs to comply with the relevant Australian Standard.
The applicants had two other arguments. First, that the building plans called for compliance with the relevant code, and the building did not, therefore it did not comply with the council approval. The question of whether the reassessment of the hazard level of the site affected this was not fully explored, though the building had received a complying final inspection certificate, and there is no suggestion of the council requiring anything further. The second was that they had agreed to a contract price based on compliance and that non-compliance meant a windfall gain for the builder. They put the amount of this at $3,000.
Against this, the Commission did not think that it was reasonable in the circumstances for the builder to be required to install extra sarking to comply with a no longer relevant standard. I accept this. As for the issue of a windfall gain for the builder, that is a contractual matter which the owners could take up with the builder and if necessary bring separate proceedings to recover. I do not think it is a ground to upset the respondent’s decision in these proceedings.
Roof – swarf, screws and pencil marks
There were several issues with the roof: swarf in the form of pop rivet stems and other bits of metal had been left on the roof; some of the screws were not fastened properly; and pencil marks on the zincalume sheeting had left corrosion marks. If black “lead” pencil is used on zincalume sheeting and not removed promptly, the graphite sets up a reaction and etches into the metal. If left for a month or so, the etching is impossible to remove.
The Request to Rectify had asked the builder to rectify these matters. The swarf and loose screws were attended to, at least in part, but the pencil marks, which were on most sheets, could not be removed and attempts to remove them were likely to make them even more noticeable. At the third inspection a few remaining screws were attended to, and the roof was swept to the satisfaction of the Commission. The commission took the view that the pencil marks were only a cosmetic blemish, and could not be removed effectively. The only way to fix the problem would be to replace all of the affected sheeting, which, given the cost, was not warranted.
At the hearing, the applicants said that there was rust from the swarf evident on the roof. Some screws had come loose, although the sheeting hadn’t. They were still concerned with the pencil mark corrosion which they said appeared to have expanded. Mr Schilling wanted the roof replaced. He was not sure if that would require replacement of the battens and sarking as well, as that would depend on whether the new roof could be screwed into the old battens, and on the state of the sarking. He estimated the cost (without new battens and sarking) at maybe $6,000, though he couldn’t be sure.
The QBCC inspector Mr Sengstock provided a very lengthy report and gave evidence at the hearing. He said that it was not reasonable to repair the pencil marks, and that they were cosmetic only. He has never seen pencil marks lead to failure of the sheeting. Similarly the rust is from the swarf, not the sheeting. It will not eat into the sheeting but may discolour it. He wasn’t aware of any further screws lifting. He estimated it would cost $15,000 to replace the roof.
Photographs tendered showed pencil figuring and similar marks. These were generally small, the largest being perhaps a quarter the distance from the peak of one corrugation to the next. It was difficult to see that they would have been noticed by a casual observer on the ground. Similarly the rust was minor. The QBCC position was that the cost of replacement was out of all proportion to the defect, and it would not be reasonable to direct rectification.
I agree. The evidence is that these defects, annoying though they may be, are not likely to produce any significant problem with the building. In the unlikely event that they did cause any roof failure, then that would constitute a category 1 defect and the owner would be able to lodge another complaint, at least until 6 years and 3 months from completion. If there are a couple of screws coming loose, and the evidence here was minimal, that does not seem a sufficient issue to give a direction for, especially two years after completion, and where the owner, a qualified carpenter, could presumably attend to it at little inconvenience.
Again, if the owners consider the cosmetic blemishes are likely to result in a diminution in value, this decision does not preclude them from bringing a separate claim against the builder.
Roof battens
The original complaint included as item 4 “Possible non compliance with manufacturer’s fitment specifications regarding lap joins of roof battens.” The builder produced a brochure from Steeline which indicated a requirement for a minimum lap of 50 mm. On inspection the QBCC was satisfied that the lapping generally complied. Where there was some issue the builder had provided alternative strapping.
Between first and second inspection the owners raised the question of whether the battens were in fact Steeline. They were satisfied that if they were Steeline they complied, but wanted the builder to produce documentation confirming this. Eventually the builder advised[6] that they were in fact Metroll, and produced a specification from that manufacturer. It specified a minimum lap of 40 mm.
[6]Email Alan Montier to Kevin Sengstock 14 July 2014.
In their initial statements the applicants did not deal with this issue, and in their statement of evidence filed before the trial they referred to it only in the context of a concern about the process. However at the hearing they raised it again as a substantive complaint. The QBCC inspector maintains that the battens are satisfactory and there is no defective work.
There is no evidence that this work is defective, and therefore I cannot rule that a direction should issue.
Wall cladding
The applicant’s initial concern related to the length of nails used to fix the Weathertex cladding. The specifications required 45 mm, and noted that if there was additional material such as packing between the board and the stud, the nail length should be increased to allow the same fastener depth into the stud. In this case the builder had used strips of ply to pack the frame so it would align with the bracing ply panels. These strips were gun-nailed to the frame with 32mm fasteners, and then 45mm nails used to affix the Weathertex.
The builder referred the matter to Weathertex, who said initially[7] that this was acceptable in the circumstances, and that a rough rule of thumb was two-thirds into the stud and one-third through the Weathertex. A later inspection by Weathertex’s technical staff confirmed that this was satisfactory.[8]
[7]Email from Weathertex 21 May 2013, Amended Statement of Reasons p 116.
[8]Letter from Conal O’Neill 29 May 2014, annexed to statement of Kevin Sengstock at p 133.
The respondent was satisfied with this but the applicants were not. Mr Schilling thought that the structural strength of the cladding was adversely affected. He said that some nails had popped, but he thought only 10 around the house. He produced a photograph showing one panel bowing away from the frame.
The inspections had revealed two other problems. One was that the cladding was in direct contact with the slab, whereas it should have been isolated with say polyethylene, and it did not have sufficient clearance from the ground. The specifications required 150mm clearance from paved areas, and 225 from unpaved, whereas these were 50mm and 180mm respectively. The second was that the builder had used non-breathable wall sarking, contrary to the specification.
Mr O’Neill thought that notwithstanding these matters the cladding was performing satisfactorily at this stage, but that Weathertex would not provide warranty assistance in the event of failure.[9]
[9]Ibid.
The applicants want the cladding re-nailed. There was some discussion as to whether this could be done without removing the cladding. Mr Schilling thought it would be just as easy to remove it. Presumably this would allow for rectification of the other issues at the same time. It was suggested to him by counsel for the respondent that this would cost about $15,000. He thought it would be less unless one had to replace the cladding itself, which he did not think would be necessary. Nonetheless the cost would be considerable.
The QBCC position was that the fasteners were performing satisfactorily, and were acceptable. It acknowledged that the other matters were not as per specification, but to date the cladding was performing as expected. There was no evidence that the sarking had caused any problems. In all the circumstances, including the cost, the QBCC did not think it was reasonable to direct the builder to attend to any rectification. It noted that if the cladding deteriorated to the point that its performance was affected, or if the sarking caused problems, a re-assessment could be done and the builder directed to rectify if necessary.
On these facts, the builder has breached his contract. The owners have received less than they bargained for, including loss of the Weathertex warranty. These may well be matters where on a claim against the builder they would be entitled to be compensated. However that is not quite the same issue. Here we must determine if in the circumstances it is reasonable to direct rectification. Given that the problems so far are minimal, the cladding may never create an issue, and that the matter can be revisited if the product deteriorates, I find that the cost of rectification is out of proportion to the benefit to be gained, and therefore will uphold the respondent’s decision on this complaint
Kitchen Cupboards
The owners complaint was that the doors were swelling, some edge stripping was not fitted or fitted poorly, and a kickboard was damaged on installation. The respondent issued a Request to Rectify relating to the kickboard, which was attended to, but did not believe the other matters constituted a defect. The first inspection report noted that the swelling could only be detected in glancing light, but not front-on from 1500 mm which was, the inspector said, the accepted standard for determining such things. He did not think the edge stripping affected performance.
There had been discussions with the cabinetmakers prior to the complaint, and the cabinet maker had inspected the cabinets and sent a door to one of the product suppliers to examine. The cabinetmaker’s position was that the swelling had occurred after installation, caused by water penetration. The clear implication was that the water penetration was the fault of the home owner, and they refused to accept responsibility.
The applicants said they believed the missing edge stripping may have caused the problem. They said the cabinets had not been exposed to water any more than in any household where some water contact can be expected from sinks, floor mopping and the like. They believed cabinetry should be able to cope with this, and that this ordinary usage was not the cause of the problem. They also gave evidence that the swelling has worsened since the matter was original reported. They remain concerned about the edge stripping and the quality of the particle board. They also noted that some drawers were not flush with other parts of the cabinet- work, and were rubbing when pulled out.
The applicants’ material included numerous photographs depicting various of these defects. Quite some time was taken up at the hearing exploring the distance from which the photos had been taken, and how noticeable the defects were, as well as when they first became evident. Some were barely discernible, but some, as well as one could judge from the photographs, were quite noticeable, and would not I think be considered acceptable.
The QBCC did not initially require rectification because the defect was not noticeable on normal viewing, and because the inspector was unsure if the problem was caused by a defective product or by use or misuse by the householder. At the hearing Mr Sengstock was still unable to resolve the latter problem, although appeared to concede that there were more evident defects now.
While I do not disagree with the QBCC’s original decision in May 2013, I am satisfied that the cabinets are now defective, and that the problem is for the most part a further deterioration of the problem identified then. However there are three difficulties in the way of the tribunal making a final decision on the question of rectification. First, the extent of the problem is not readily determinable simply by looking at photographs, and there has not been any recent inspection by the QBCC. Secondly, the question of whether the defect was caused by a product or cabinet-work failure, or by misuse, may need further exploration. In this regard at the moment we are faced with the cabinetmaker’s insistence that the cabinets were fine when they were fitted, and the applicants’ insistence that the use of the kitchen has been normal use which should not cause a problem so early in the life of the product. Further exploration may find an answer to this.
The third matter is that if the QBCC decided that the work should be rectified, it can issue a direction to either or both the builder and the cabinetmaker.[10] The cabinetmaker has not been part of the investigative process, beyond doing his own inspection and comment back in March 2013. It would not be fair to make any order here affecting him without his having an opportunity to present his view.
[10]Queensland Building and Construction Commission Act 1991 s 72(5).
The tribunal’s powers include the power to set aside the decision and remit the matter back to the original decision-maker for reconsideration.[11] That is the course I propose to take with this complaint.
[11]Queensland Civil and Administrative Tribunal Act 2009 s 24(1)(c).
There was some controversy at the hearing as to the date on which this complaint was first raised, given that a category 2 defect will not ordinarily be the subject of a direction unless it is raised with the builder within six months of completion, and the complaint is made within seven months. The applicants wrote to the builder on 8 February 2013.[12] The letter included a complaint about the edge stripping and said that they were “concerned of the effect of any moisture to the exposed craft wood.” The cabinetmaker inspected on some date between 14 February and 7 March. The formal complaint included a complaint about swelling of doors. I am satisfied that the current problems are part of the same issue and that the time limits have been complied with. I will issue a direction to this effect.
[12]The letter is exhibit 2.
0
0
2