Spectrum Homes Qld Pty Ltd v Queensland Building and Construction Commission - [2023] QCAT 503

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Spectrum Homes QLD Pty Ltd v Queensland Building and Construction Commission [2023] QCAT 503

PARTIES:

SPECTRUM HOMES QLD PTY LTD

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO:

GAR273-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

19 December 2023

HEARING DATE:

Heard on the papers

HEARD AT:

Brisbane

DECISION OF:

Member McVeigh

ORDERS:

1. The respondent’s decision to issue direction to rectify 0109364 dated 13 June 2022 is set aside.

2. The tribunal’s decision that, in the circumstances, it would be unfair to the applicant to direct it to rectify any on-site dispersion pits is substituted for respondent’s decision.

CATCHWORDS:

ADMINISTRATIVE LAW – Queensland Civil and Administrative Tribunal – whether decision of the Queensland Building and Construction Commission should be set aside

PROFESSIONS AND TRADES – Builders – Statutory powers to require rectification of defective or incomplete building work – whether in the circumstances a direction to rectify should be confirmed

Queensland Building and Construction Commission Act1991 (Qld), s 21, s 72

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 20, s 24

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

Applicant:

Self-represented

Respondent:

Norton Rose Fulbright

REASONS FOR DECISION

What the applicant wants

The Queensland Building and Construction Commission (Commission) directed Spectrum Homes Qld Pty Ltd (builder) to rectify 4 on-site dispersion pits. The builder applied for an internal review of that decision. The internal reviewer decided to ‘give a direction to rectify for complaint items [sic] 1 of the complaint form.’ By direction to rectify 0109364 dated 13 June 2022 the Commission directed the builder to rectify 4 on-site dispersion pits by 18 July 2022.[1]
[1]Hearing book, p 475–477.
The builder submits that it was not fair to issue direction to rectify 0109364 for a number of reasons, including:
(a)the rubble pits had been installed to meet Australian Standards;
(b)the complaint was about a particular rubble pit, not four pits;
(c)the homeowner had failed to maintain the property or install necessary landscaping;
(d)extreme weather events in the local area contributed to drainage issues;
(e)complaints about conduct of officers of the Commission.

Role of this tribunal

If the Commission is of the opinion that building work is defective or incomplete it has the power to direct the person who carried out the building work to rectify the building work.[2] However, the commission is not required to give a direction if the commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction.[3]
[2]Queensland Building and Construction Commission Act1991 (Qld), s 72.
[3]Ibid, s 72(5).
The tribunal stands in the shoes of the original decisionmaker to review the decision the subject of the application. The tribunal must deal with matters in a way that is fair and just.[4]
[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3.
The purpose of the review is to produce the correct and preferable decision based on a fresh hearing on the merits.[5] The only orders that that the tribunal can make is to either:
(a)confirm or amend the decision; or
(b)set aside the decision and substitute its own decision; or
(c)set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with appropriate directions.[6]
[5]Ibid, s 20.
[6]Ibid, s 24(1).
These proceedings are not the appropriate forum to address:
(a)the alleged inappropriate conduct of Mr Williams, the officer of the Commission who investigated the complaint; nor
(b)the issue of the infringement notice, allegedly contrary to the policy of the Commission.
A direction was made that these proceedings be listed for a hearing on the papers.
The builder relies on:
(a)a statement of Anthony Reeves made 16 November 2022;[7]
(b)a statement in reply made 20 December 2022;[8]
(c)submissions made 27 October 2023;[9]
(d)objections to the Commission’s submissions dated 13 November 2023.
[7]Hearing book, p 514–724.
[8]Ibid, p 784–750.
[9]Ibid, p 751–800.
The Commission relies on:
(a)its statement of reasons dated 12 September 2022;[10]
(b)a statement of Darryl Williams dated 20 October 2022;[11]
(c)submissions made 7 November 2023.[12]
[10]Ibid, p 51–513.
[11]Ibid, p 752–747.
[12]Ibid, p 801–816.
As this matter was heard on the papers there was no opportunity to test evidence under cross-examination. The builder’s arguments were made clear in its written material. The Commission has had ample opportunity to address the complaints and concerns relevant to these proceedings. I assume that it did what it could to assist the tribunal.[13] If it did not produce material to refute the evidence from, and submissions by, the builder I can only conclude that it could not provide any better evidence than it has. When weighing evidence on the balance of probabilities I assume that the Commission’s evidence is the best evidence it can provide.
[13]Queensland Building and Construction Commission Act1991 (Qld), s 21.
The Commission’s submissions referred to a number of previous cases in this tribunal which considered instances in which the question of fairness in circumstances in which the owner was alleged to have acted, or not acted, to cause or contribute to a defect was considered. Each of those cases, like this case, turned on its own facts.

Were 4 dispersion pits defective?

How many pits?

The builder complains that it was unfair of the Commission to issue a direction relating to all 4 pits when the owner originally complained about one pit.[14]
[14]Hearing book, p 514.
In November 2021 the owner advised to the builder ‘we have 2 pits that work correctly, and two pits…that don’t’.[15] The owner lodged a complaint with the Commission on 26 November 2021 about one storm water pit. The description given by the owner was ‘stormwater rubble pit does not drain away water after rain has stopped. Water remains in overflow pipe for months after rain which then creates mould in the pipe. Overflow pipe in [sic] at least 100mm above ground level.’[16]
[15]Ibid, p 287.
[16]Ibid, p 263.
On 6 December 2021 the owner provided more information and photographs to the Commission.[17] The information is all hearsay. It has no probative value. I have no sworn statements from the owner, the site supervisor, or the plumber who inspected the pits a few months after completion. The photographs provided by the owner are useful. The first photograph is of a pit which the owner indicated was operating correctly. The second photograph is of a pit which the owner said was not draining properly. The overflow pipe is above the level of the surrounding ground. The cap has been removed from the top of the overflow pipe and is sitting on the ground beside the upstand. The surrounds of both pits do not appear to have been landscaped. There is a sparse covering of grass which does not look like it would hold silt in heavy rain.
[17]Ibid, p 271–274.
On 22 March 2022 Mr Williams, an inspector engaged by the Commission, attended site and prepared an inspection report.[18] He did not carry out any invasive investigation. I will not canvass the opinions in his report at any length because the internal reviewer did not rely on them as the basis for her decision.
[18]Ibid, p 299–310.
Mr Williams carried out a visual inspection which was relied upon by the reviewer. It revealed one exposed 90mm storm water pipe riser fully charged with water approximately 200mm above ground. The ground surrounding the rubble pit was partially washed out and the riser pipe was full of moss and algae. Mr Williams measured the depth of the riser as approximately 900mm deep and noted that there was a lot of sediment at the base of the riser. This description appears consistent with the photograph taken by the owner a few months previously.[19] If Mr Williams inspected any other pit, he made no mention of what he observed in his report.
[19]Ibid, p 273.
On 25 March 2022 the Commission decided to issue a direction to rectify all 4 pits.
The builder made an application for internal review of that decision.[20] The application focused on numerous reasons the direction should not have been issued which I address below, but only referred to the pit the subject of the complaint, not to all four pits.
[20]Ibid, p 349–353.
The owner provided further material to the Commission, including 2 photographs.[21] The first was a photo of the rubble pit which was the subject of the complaint taken on 30 December 2020 and the second was of the same pit taken 26 April 2020. There were no photographs of the other pits. The owner said he had been complaining about poor drainage from this pit prior to handover, but made no mention of issues with any other pit.
[21]Ibid, p 360.
The Commission’s internal reviewer obtained advice from Mr Noble, a senior technical review officer. He conducted a desktop review.[22] Mr Noble said that he had reviewed the file. He set out the owner’s complaint. He determined that the ‘4 onsite dispersion pits have not been constructed with suitable filter material to self drain in accordance with AS3500.3 Section 2.13 & 4.6.2, resulting in stormwater retention within the lines and significantly reducing the capacity of the stormwater system.’
[22]Ibid, p 62–67.
I accept the Commission’s submission that when investigating a complaint, the Commission is not limited by the terms of the complaint. However, I cannot understand how Mr Noble could reach a conclusion that suitable filter material had not been used in all 4 pits in the absence of any evidence that all 4 pits were not operating correctly. I agree with the Commission’s submission that it would have been reasonable for Mr Williams to inspect the construction of all four pits in order to make a decision about the complaint. But there is no evidence that he did so. Obviously, in conducting a desktop review Mr Noble could not inspect any pit. He could only rely on investigations conducted by Mr Williams.
The internal reviewer adopted Mr Noble’s advice. She decided ‘to give a direction to rectify…for complaint item 1 in the…form.’[23] However, the direction that was issued on 13 June 2022 was not limited to the pit which had been identified in item 1 of the complaint form.[24] It repeated the defective work list from the original direction. It required all 4 pits to be rectified.
[23]Ibid, p 61.
[24]Ibid, p 475–477.
On the evidence before me I am not satisfied that all four pits were defective. Due to supervening events discussed below it would be pointless to amend the decision to refer to a single pit.

In the circumstances, should a direction to rectify be issued?

It is common ground that the pit inspected by Mr Williams was not operating as intended.
The builder submits that this was because of failures on the part of the owner, including:
(a)the owner’s landscaping works contributed to the non-performance of the pit;
(b)the owner had changed the site, allowing mud to enter the pit;
(c)the owner had removed the cap intended to minimise foreign matter from entering the pit;
(d)the owner had not carried out necessary landscaping, thus contributing to the volume of water; and
(e)the owner had failed to maintain the property resulting in filter material being washed away and mud to wash into the pit.
The builder relies on a Form 16 certificate given by John Hanson, a licensed plumber and drainer. He certified that the stormwater drainage system was in accordance with BCA Part 3.1.3 as it had been constructed in accordance with AS/NZ3500.3.[25]
[25]Ibid, p 252–253.
The Commission decided that all four rubble pits were not constructed in accordance with Section 2.13 & 6.4.2 of AS3500.3. Section 2.13 of AS3500.3 provides:
Filter materials consisting of natural clean washed sands and gravels and screened crushed rock shall be –
well graded, with a mix of different sizes of sand particles and permeability with –
natural sand, less than 5% passing a 75 µm sieve; and
screened crushed rock, sizes 3mm to 20mm;
sufficiently coarse not to wash into the subsoil drain, or through pores in a geotextile cover to each drain …
Section 6.4.2 of AS3500.3 also describes the type of material to be used for the embedment of a drain and the placement of that material.[26]
[26]Ibid, p 66.
The only means of determining whether the filter material, in fact, complied with the requirements of the Australian Standard would have been to conduct invasive investigations in the pits. Similarly, invasive investigations would have been the only way of determining whether perforated pipe had been used. When investigating allegations that work is defective it is not the policy of the Commission to conduct invasive testing. The consequence is that the Commission’s decision was based on circumstantial evidence that because one pit was not draining as it should, all four pits must not have been constructed in accordance with AS3500.3.
In March 2022, when addressing the owner’s complaint, the builder maintained that there was a reason that the pit is not draining as it should. The builder noted that the owner had been informed ‘that there are several areas which would be contributing to the volume of water, namely the client has not constructed the necessary retaining walls and has also not carried [out] landscaping of the site. The rainfall since the completion of the home has been substantial and consistent, which would account for any remaining water in the pit.’[27]
[27]Ibid, p 303.
Mr William’s inspection report is silent as to the state of the landscaping at the property on the day of his inspection. The only information to be gleaned from his report about the general condition of the site is a photograph of the front driveway and sparsely grassed area beside the driveway.
In providing information to the internal reviewer the owner wrote ‘within the 16 months from handover the required landscaping…has been completed over and above what the contract required.’[28] He provided a photograph of a retaining wall near the driveway.[29] The driveway is on the western side of the house. The pits are on the southern and eastern side of the house.[30]
[28]Ibid, p 355.
[29]Ibid, p 361.
[30]Ibid, p 280.
Mr Noble concluded, on the basis of the photos that he had seen, that the stormwater line was holding water and not draining into the pit. He concluded that the 4 pits had not been constructed with suitable filter material to self-drain. He wrote ‘it is apparent that no acceptable filter material has been provided to the pit or around the onsite dispersion system.’[31] He relied on Mr Williams’ observation that mud was obstructing the bottom of the vertical riser, which was not perforated to allow water to percolate into the pit.[32] He concluded that stormwater discharging from the top of the riser was eroding the surrounding ground.
[31]Ibid, p 63.
[32]Ibid, p 63.
Mr Noble expressed his opinion without the benefit of a site visit. If he turned his mind to the possibility that what was visible in the photographs on the file was a consequence of the owner’s failure to construct necessary landscaping allowing runoff into the rubble pit, as alleged by the builder, or to the owner’s alleged failure to maintain the property, he made no mention of it. He did not mention the photograph of the retaining wall provided by the owner, perhaps because he looked at it and concluded that it was irrelevant as it was not taken in the area of concern.
In his statement Mr Reeves maintains that in the two years since handover the owner did no landscaping or maintenance work in the area of concern. Mr Reeves produced photographs taken from a video in October 2021[33] which show that in October 2021 there was a considerable area of earth and rubble which had no grass to hold it in periods of rain. He referred to other photographs which also do not show significant landscaping in the area of concern.
[33]Ibid, p 619–623.
If the Commission’s approach of considering circumstantial evidence was the correct approach to determining whether a direction should be issued, then there is an alternative view, effectively as the builder argues, that as three of the four pits drain as they should, there must be another explanation for the problems with the fourth pit, which in this case could be what the owner did, and did not do, to maintain the drainage system.
There is one more piece of evidence that was not available to the internal reviewer, but which I can take into account. Mr Reeves says that as he felt ‘bullied into rectifying the rubble pits due to consistent threats of fines, prosecution, disciplinary action, debt recovery, demerit points, notices on public record etc’[34] he arranged to dig up the pits in July 2022. Mr Reeves stated that photographs taken at the time[35] show that the pits were constructed using suitable filter material.[36] The photographs show crushed rock of various dimensions in each pit.
[34]Ibid, p 516.
[35]Ibid, p 594.
[36]Ibid, p 515.
There is a body of evidence that supports the builder’s claim, that the pit was not operating as intended due to the owner’s failure to carry out landscaping work to minimise potential impact of runoff, which contributed to the washing away of filter material and allowed mud to be washed into the filter pit. Mr Reeves says that the owner had not carried out necessary landscaping work, had re-routed rainwater into the pit and had failed to replenish gravel washed out of the pit due to failure to landscape the area at the time of the first inspection. The photographs support his claims.
Mr Reeves submits that the Commission failed to take the owner’s failure to landscape and maintain the area around the pits into account when it decided to issue the original direction to rectify. I accept that submission as there is no evidence in the inspection report that it was considered as a possibility but rejected. Although it was apparent at the time of the site visit that the builder was raising allegations about the owner’s failure to carry out landscaping work to minimise potential impact of runoff, which contributed to washing away of filter material and allowed mud to be washed into the pit, Mr Williams made no comment about the general landscaping and maintenance in his inspection report. When he reinspected, he made no comment about the general state of landscaping on the property.[37] When Mr Williams made his statement, he did not disagree with the builder’s comments about the state of the landscaping on the site. Nor did he comment on the photographs of the open pits taken when the builder was carrying out rectification.
[37]Ibid, p 494.
In the absence of any evidence to the contrary I accept Mr Reeves’ evidence, supported by the photographic evidence, that suitable filter material was placed in the pits. On the basis of the evidence before me I cannot dismiss the possibility that the reason the pit does not function as intended is due to the owner’s failure to carry out necessary landscaping work, in combination with his failure to replenish gravel washed out of the pit due to failure to landscape the area in the years since the pits were constructed.

On the balance of probabilities, I find that there was evidence that the owner’s failure to maintain the property had contributed to the fact that one pit was not draining as it should. The Commission had no regard to this possibility during the internal review. In the circumstances it would be unfair to confirm the direction to the builder to rectify the pit that was not operating as intended.

Orders

The Commission’s decision to issue direction to rectify 0109364 dated 13 June 2022 is set aside.
The tribunal’s decision that, in the circumstances, it would be unfair to the applicant to direct it to rectify any on-site dispersion pits is substituted for that decision.