Steel v Queensland Building Services Authority
[2013] QCAT 439
•28 August 2013
| CITATION: | Steel v Queensland Building Services Authority [2013] QCAT 439 |
| PARTIES: | Gavin Steel (Applicant) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | GAR055-12 & GAR108-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 21 and 22 February 2013 |
| HEARD AT: | Mackay |
| DECISION OF: | Philippa Beckinsale |
| DELIVERED ON: | 28 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for review for the matter of GAR055-12 is dismissed. 2. In reference to matter GAR108-12 the Authority’s decision about the scope of works of 27 February 2012 be set aside and substituted in its place is a scope of works incorporating items 1,2,4,5 and 6 (and excluding item 3) of the Authority’s scope of works under review. |
| CATCHWORDS: | REVIEW - decision to issue direction to rectify - review of scope of works - whether scope of works reasonable and necessary-compliance with Building Code and manufacturer’s specifications - when plans do not comply with Code or manufacturer’s specifications Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Gavin Steel represented by Doug Mckinstry of Williams Graham Carman Solicitors |
| RESPONDENT: | Queensland Building Services Authority represented by Edwin Bird in-house lawyer |
REASONS FOR DECISION
Robert and Pam Jurgens contracted[1] the applicant builder, Gavin Steel, to significantly extend their house at Dingo Beach, Queensland. Construction commenced in July 2007 and was completed in July 2008.
[1]Master Builders Residential Building Contract dated 24 January 2007 exhibit GJS-1 to Statement of Gavin John Steel dated 30/08/12.
Northern Queensland was affected by Tropical Cyclones Anthony and Yasi in early 2011. Inspection of the residence by an insurance assessor resulted in the identification of some damage as a result of Cyclone Anthony but also identified items of alleged defective building.
Mr and Mrs. Jurgens made a complaint[2] to the Queensland Building Services Authority dated 5 April 2011 and a second complaint[3] to the Authority dated 6 December 2011.
[2] Exhibit SOR-6 to Statement of Phillip Slade dated 10 October 2012.
[3] Exhibit SOR-41 to Statement of Phillip Slade dated 10 October 2012.
Following the first complaint the Authority’s Inspector Phillip Slade carried out an inspection on 2 June 2011 and issued an inspection report dated 8 June 2011[4]. The Authority issued a direction to rectify[5] to Mr Steel dated 20 June 2011 and as Mr Steel did not comply with the direction the Authority issued a scope of works dated 16 September 2011[6] for the rectification of the items in the direction. The Authority issued a second scope of works dated 1 February 2012[7] and a third scope of works dated 27 February 2012[8] relating to the direction to rectify.
[4] Exhibit SOR-17 to Statement of Phillip Slade dated 10 October 2012.
[5] Exhibit SOR-19 to Statement of Phillip Slade dated 10 October 2012.
[6] Exhibit SOR-27 to Statement of Phillip Slade dated 10 October 2012.
[7] Exhibit SOR-34 to Statement of Phillip Slade dated 10 October 2012.
[8] Exhibit SOR-39 to Statement of Phillip Slade dated 10 October 2012.
Following the second complaint Mr Slade carried out an inspection on 19 February 2012 and issued an inspection report with that date[9]. The Authority issued a second direction to rectify[10] to Mr Steel dated 23 January 2012 and as Mr Steel did not comply with that direction, the Authority issued a scope of works dated 24 February 2012[11] relating to the second direction to rectify.
[9] Exhibit SOR-47 to Statement of Phillip Slade dated 10 October 2012.
[10] Exhibit SOR-48 to Statement of Phillip Slade dated 10 October 2012.
[11] Exhibit SOR-54 to Statement of Phillip Slade dated 10 October 2012.
Mr Steel has applied for a review of the Authority’s decision to issue:
(a)the second direction to rectify[12];
(b)the scope of works relating to the second direction to rectify[13];and
(c)the third scope of works relating to the first direction to rectify[14].
THE LEGISLATION
[12] GAR055-12 Queensland Civil and Administrative Tribunal.
[13] GAR055-12 Queensland Civil and Administrative Tribunal.
[14] GAR108-12 Queensland Civil and Administrative Tribunal.
The Queensland Building Services Authority Act 1991 (QBSA Act) gives the Queensland Civil and Administrative Tribunal jurisdiction to conduct a review of the Authority’s decision. On review the Tribunal may confirm or amend the decision; set aside the decision and substitute its own decision; or set aside the decision and return the decision to the decision maker[15].
[15] Queensland Civil and Administrative Tribunal Act 2009(Qld) s 24.
In its review jurisdiction, the Tribunal must decide the review in accordance with the QBSA Act and the Queensland Civil andAdministrative Tribunal Act 2009 (QCAT Act)[16].For the review the Tribunal has all the functions of the decision maker for the reviewable decision[17].The purpose of the review is to produce the correct and preferable decision following a hearing on the merits[18]. In effect the Tribunal stands in the shoes of the decision maker and makes the decision afresh.
[16] Ibid s 19(a).
[17] Ibid s 19(c).
[18] Ibid s 20.
The QBSA Act provides that a person who carried out building work may be directed to rectify or complete building work[19]. All circumstances which are reasonably relevant may be considered in deciding whether to give a direction[20].Generally a direction must be given within 6 years and 3 months of the building work being completed[21]. A direction may not be given if it would be unfair to do so[22]. The power of the Authority to direct rectification of building work is discretionary and must be exercised in accordance with the objects of the QBSA Act[23].
[19] Queensland Building Services Authority Act 1991(Qld) s 72(1).
[20] Ibid s 72(2).
[21] Ibid s 72(8).
[22] Ibid s 72(14).
[23] Ibid s 3.
The QBSA Rectification of Building Work Policy was gazetted and is therefore a statutory instrument[24] which must be applied in reaching the correct and preferable decision. The policy provides that a person who carries out category 1 or category 2 defective building work should be required to rectify it unless rectification is an unreasonable remedy. Category 1 is defined to include structural defects or defects which allow water penetration. Category 2 is defined to include faulty or unsatisfactory work which does not meet reasonable standards of construction but does not fall into category 1.
[24] Statutory Instruments Act 1992 (Qld) s 7.
The Policy acknowledges that all reasonably relevant circumstances are to be considered in deciding whether to issue a direction to rectify. The Policy sets out that the circumstances for consideration might include a delay by the owner in notifying the Authority of the defect. The Policy specifies different time frames for category 1 and category 2 defects after which a delay may be relevant: more than three months after the defect became apparent for category 1; more than six months after work was completed or left incomplete or exceeds seven months, if the owner notified the contractor of the defect within six months after work was completed or left incomplete for category 2.
The Authority’s decision to issue a scope of works is a reviewable decision[25] and on review the Tribunal must determine whether the scope of works is reasonable and necessary to rectify the defects the subject of the direction to rectify[26].
DIRECTION TO RECTIFY
[25] Queensland Building and Services Authority Act 1991 (Qld) s 86(g).
[26] Tadc Pty Ltd v QBSA [2004] QCCTB 28; Middling v QBSA [2005] CCT Q600-03.
The relevant items of the second direction to rectify are
Item 2-Steel structure to the stairs at the front of the dwelling have(sic) not been coated with an appropriate finish as specified in the BCA table 3.4.4.2 in that rust is appearing through the painted surfaces which is having a detrimental effect to the structural elements-pertains to item 2 on the BSA complaint form.
Item 3-The roofing iron used on the front and rear deck roofs do(sic) not comply with AS1562.1 4.1 The cladding system shall be installed in accordance with the design specifications “in this case the manufacturers recommended pitch of not less than 5 degrees” for the installation of custom orb-pertains to item 3 on the BSA complaint form.
ITEM 2 STEEL STAIR DEFECT
The Tribunal has been referred to the decision of Dixon Projects Pty Ltd v Queensland Building Services Authority[27] as outlining the principles to be applied in exercise of its discretion pursuant to section 72 of the QBSA Act:
“The Tribunal must consider the competing interests of the parties involved and factors such as blameworthiness of the owners and the cause of the defective building work are relevant. The balancing interests of the Building Contractors and Consumers is specifically provided for in Section 3 of the QBSA Act;
In exercising its discretion, the Tribunal must give consideration to the circumstances mentioned in the Board’s policy; and
The Tribunal must take into account all of the evidence including the circumstances raised at the Tribunal hearing.
In determining this matter, the Tribunal must be satisfied that:
i) There was defective building work; and
ii) In all the circumstances that are reasonably necessary and in the exercise of the Tribunal’s discretion, should the notice to rectify be issued?”
[27] [2009] QCCTB 2.
Mr Steel concedes that the inadequate preparation of the steel work of the stairs is defective building work but contends that the issue is not a defect which can be attributable to him as he did not undertake the building work the subject of item 2.[28] Mr Steel’s evidence, which is supported by his subcontracted painter Mr Scerri, is that, returning to site after a weekend, he discovered the owners had painted the steel frame work with what appeared to be an appropriate primer, with good coverage but that there was no way for them to tell at the time whether the preparation had been adequate or whether the correct product was used and to rectify the possibly inadequate preparation and priming was an “impossible” or at least a “major” job involving the stripping back by grinding of the owner-applied paint. The painter then applied two finishing coats rather than insisting on the removal of the primer. Mr Steel concedes that the Jurgens did not properly prepare the surface before applying the primer coat.
[28] Statements of Gavin John Steel dated 30 August 2012 and 12 November 2012.
It was submitted on behalf of Mr Steel that the defect pertaining to the steel work should properly be considered a category 2, rather than a category 1 defect as the surface rust present when the second direction was issued was not affecting the structural performance of the house.
It was submitted on behalf of Mr Steel that practical completion is deemed to have occurred in or about July or August 2008 when Mr Steel says he completed the contract works and the owners took possession. The Authority’s evidence was that the owners first noticed the steel stair problems on 14 May 2011 but did not make the complaint until 6 December 2011. It was submitted on Mr Steel’s behalf that the owners delayed some three and a half years making a complaint rather than the 6 or 7 months contemplated by the Authority’s policy guideline in the case of a category 2 defect and even should the defect be considered category 1, then the owners have exceeded by nearly 4 months the 3 months contemplated by the guidelines.
Whilst it is conceded on behalf of Mr Steel that the inadequate preparation of the steel work of the stairs is defective building work, it is contended that the delay by the owners in lodging a complaint makes the issuing of the direction to rectify unfair to Mr Steel when regard is had to the owners’ blameworthiness having “attended to surface preparation of the steel stairs and applied primer coat to the stairs without being requested to do so by the applicant which deprived the applicant and his painter of the opportunity to check whether the surface had been properly prepared”.
It was submitted on behalf of the Authority that the licensed contractor is required to personally supervise[29] and adequately supervise[30] building work and bears the responsibility for work performed by any subcontractor and in this matter, work performed by the owners. The Authority’s submission was that the contractor was, if anything, more blameworthy because the people who did the work were unlicensed and did the work without instruction. That, I think would depend on each situation, but here I do accept that the builder has ultimate responsibility for the steelwork which is defective building work and that with his subcontractor proceeding to apply the top coats over the primer has adopted the poor preparation.
[29] Queensland Building Services Authority Act 1991 (Qld) s 43.
[30] Ibid s 43A.
Whether the rust’s presence on the steel work is a category 1 defect as contended by Mr Slade or whether it is more properly described as a category 2 defect as contended on behalf of Mr Steel, there has been a delay outside of the time periods contemplated in the policy guidelines as matters to take into account when deciding whether to direct rectification. The delay is much longer if the defect is determined to be category 2, but either way I consider that it is the consequence of the delay which is more important to take into account. As pointed out on behalf of the Authority, it has been submitted on behalf of Mr Steel that as the rust has not progressed beyond being surface rust the delay has not resulted in any more work being required to rectify this defect and I agree.
ITEM 3 ROOFING DEFECT
It was submitted on behalf of Mr Steel that this item should also be considered a category 2 rather than category 1 defect because there is insufficient evidence to support a finding that the roof pitch adversely affects the structural performance of the house. No complaint was made for some three and a half years after practical completion when the roof pitch was apparent.
It is contended for Mr Steel that the direction to rectify the defect so long after practical completion and so long after the roof pitch was apparent is unfair, particularly when regard is had to Mr Steel’s lack of blameworthiness:
(a) the plans supplied by the owners provided for a roof pitch of 3 degrees and other measurements on the plans prevented the roof pitch being not less than 5 degrees (indeed less than 3 degrees);
(b) an engineer certified that the design of the house complied in all respects with all relevant structural requirements;
(c) Mr Steel constructed the roof as per the plans having no reason to suspect that the engineer’s certification was incorrect;
(d) a survey certificate was issued certifying that “the finished heights of the new dwelling have been constructed in accordance with the (plans)”; and
(e) Whitsunday Regional Council did not express concern about the pitch of the roof at the final inspection.
It is not in contention that the pitch of the roof does not comply with the manufacturer’s specifications or the Building Code of Australia, or even that the pitch does not achieve the 3 degrees specified in the owner-supplied plans but that in the circumstances outlined above that the direction to rectify this defect is unfair to Mr Steel.
The Authority has contended that the defect is a category 1 defect. Mr Slade’s evidence was that he regarded the defect as category 1 because the potential for the roof to have water ingress is a greater potential than if it was constructed to the BCA and manufacturer’s requirements.
Whether the roof defect is category 1 or category 2, I again consider that whether the delay in making the complaint has disadvantaged the builder in terms of the rectification work to be performed is of more significance than the actual period of time which has elapsed in determining whether the delay should weigh against exercising the discretion to require rectification.
I accept the submission on behalf of the Authority that the rectification work has not changed due to the delay, for example, there has been no actual water ingress with resulting damage.
Mr Slade gave evidence, which was not contradicted, that the pitch of the roof was measured as 1.7 degrees with a margin of error for the instrument used being plus or minus 0.5 degrees. Therefore while the plan specified a pitch of 3 degrees, Mr Steel had constructed the roof with a pitch of anywhere between 1.2 and 2.2 degrees. Mr Steel gave evidence that the plans were internally contradictory in that a roof pitch of 3 degrees could not be achieved with the heights indicated.
The Authority submitted that Mr Steel had an obligation to ensure compliance with the BCA and the manufacturer’s specifications: he cannot assert that “others got it wrong” and even so, he has not complied with the plans and that weighs further against the discretion to direct rectification being applied in Mr Steels favour. I agree.
Accordingly I confirm the Authority’s second direction to rectify items 2 and 3.
THE (FOURTH) SCOPE OF WORKS ISSUED IN RELATION TO THE SECOND DIRECTION
It was submitted on behalf of Mr Steel that if the second direction as regards the steel stairs defect and roofing defect was not reasonably made due to unfairness to Mr Steel, it follows that the fourth scope of works was not properly issued. I have affirmed the second direction as regards the steel stair defect and roofing defect and consider the fourth scope of works was therefore properly issued being reasonable and necessary to rectify the defects the subject of the second direction to rectify. The application for review is dismissed.
THE THIRD SCOPE OF WORKS RELATING TO THE FIRST DIRECTION TO RECTIFY
The direction to rectify dated 20 July 2011 relevantly included the following items:
Item 1-Tiled deck to the front and side of the dwelling is not constructed in accordance with manufacturers (sic) recommendations in that water ingress is allow to run between tiles and external block wall and into the living space of the dwelling causing an adverse affect (sic) to both external and internal linings. (Pertaining to item 3 on the BSA complaint form)
Item 3-Water ingress through the block wall of the garage has resulted in the storage area not being able to be used in the way that the function was intended causing a health and safety issue. (Pertaining to item 3 on the BSA complaint form)[31]
[31] Exhibit SOR-21 to Statement of Phillip Slade dated 10 October 2012.
Mr Steel’s application for a review of this direction was lodged late and was withdrawn. When he did not comply with the direction the Authority issued a scope of works dated 16 September 2011[32] and a further scope of works dated 1 February 2012[33] for the rectification of the items contained in the direction to rectify.
[32] Exhibit SOR-27 to Statement of Phillip Slade dated 10 October 2012.
[33] Exhibit SOR-34 to Statement of Phillip Slade dated 10 October 2012.
The Authority issued a third scope of works dated 27 February 2012[34] pertaining to the direction to rectify dated 20 July 2011 as follows:
Item 1-Provide all labour and materials to carry out the following repairs, remove all existing trim and curtains to gain access to window 1st floor bedroom on eastern side;
Item 2-Remove existing bedroom window to eastern end of 1st floor bedroom water proof surrounding block work and reinstate window into opening;
Item 3-Remove and repair damage to external surrounding finishes and repaint wall to match existing. Reinstate internal linings as required and repaint to match existing wall colour.
Item 4-Box up and waterproof area of section next to garden side of boundary to garage wall and then poor (sic) new concrete to act as a part step into the garden;
Item 5-Removal of some of the plants may be required to have a better degree of access;
Item 6-All disturbed areas to be made good to match existing and on completion clean and remove all building rubbish from site. (Note all rectification work to be in accordance with the Building Code of Australia and any manufacturer recommendations).
[34] Exhibit SOR-39 to Statement of Phillip Slade dated 10 October 2012.
Items 1 to 3 of this scope of works pertains to item 1 of the direction to rectify (the tiled deck) and items 4 and 5 to item 3 (water ingress through the block wall of the garage) and need to be dealt with separately.
ITEMS 1 TO 3 THE TILED DECK
The item pertaining to the tiled deck is dealt with as complaint number 2 in the Initial Inspection Report prepared by Mr Slade dated 8 June 2011[35]. The defect is described as :
The weatherproofing on top storey decking has allowed water to run off down through the deck to exterior walls rotting out exterior moulding on the lower deck moulding against the wall & also allowing water to ingress the interior walls on the lower living area causing rot & mould in gyprock, skirting, window & door frames. The water also ingressing over top of louvre frame & dripping onto floor.
[35] Exhibit SOR-17 to Statement of Phillip Slade dated 10 October 2012.
The location of the defect is:
Balcony floor to south eastern side of dwelling.
The report notes:
A visual inspection revealed that the moulding to the underside of the tiled deck attached to the ceiling lining against the wall of the dwelling has deteriorated and is suffering from dry rot caused by water saturation. It revealed that when a water test by spraying with a hose to this area onto the tiles on the first balcony that water was able to run through between the exterior wall and the tiled deck within a matter of 5-10 minutes. It revealed that the waterproof membrane has broken allowing the ingress of water. It also revealed that the water flows into the interior linings of the living room underneath causing damage to the internal wall linings.
Mr Slade gave evidence that he issued the third scope of works after being provided with photographs and having discussions with Paul Newton, the builder who was carrying out rectification works. Mr Newton had carried out a water test in the vicinity of the rectified tiled deck that revealed there was a leak between the external frame of the first floor bedroom window and the block work. This window had not been identified as a source of water ingress when Mr Slade conducted his inspection but he said water ingress from this window would result in water damage to a similar area to that being damaged as a result of water ingress from the defective construction of the tiled deck. As Mr Slade said, it was fruitless to fix the damage caused by water ingress from the deck if damage was continuing in the same vicinity from water ingress through the window.
But can it be said that the rectification work to the first floor window was reasonable and necessary to address the rectification works the subject of the direction to rectify?
I do not find so. The subject of the relevant direction to rectify was the tiled deck with water ingress between the tiles and the external block wall. The inspection report does not refer to the first floor window. Any defect of the window is a separate defect to that identified with the tiled deck. The fact that the window is in the vicinity of the deck and that water ingress from both window and deck may be causing damage to the same or similar area does not make the window the subject of the direction to rectify. If the direction had been in terms of rectifying the defect of water ingress from the deck rather than specifying that the ingress was between the tiles and the external block walls, there may have been room for the argument that the window, being out to the deck, was the subject of the direction to rectify but that is not the case and my view, a separate direction ought to have been made when the further defect was identified.
ITEMS 4 AND 5 WATER INGRESS THROUGH BLOCK WALL OF GARAGE
The item pertaining to the water ingress to the garage is dealt with as complaint number 4 in Mr Slade’s report:
We have concerns with cracks in the cement on driveway. Our garage wall has approximate eight meter (sic) horizontal crack on exterior carport wall beside staircase allowing water to ingress into the carport. There is a crack on block rendered boundary wall on the eastern side.
The location is reported as: Garage walls.
The report notes:
A visual inspection revealed evidence of water ingress through the block wall to both sides of the garage wall. It revealed a crack in the rendered surface of approximately 1-2mm for the length of the structure.
It was contended on behalf of Mr Steel that neither the first complaint nor the first direction mention the top boundary corner of the garage which is where items 4 and 5 of the third scope of works are to be carried out. The inspection report refers to “a crack in the rendered surface of approximately 1-2mm for the length of the structure” and includes a photograph of “cracking along block bedding allowing water through wall”. The argument was made on behalf of Mr Steel that the subject of the direction to rectify is water ingress occurring through the crack in the rendered surface of the garage wall referred to in the first inspection report and the first direction. Therefore, items 4 and 5 of the third scope of works are separate, distinct and “quite different in concept”[36] and “go considerably further”[37] than the works contemplated in item 3 of the first direction and cannot be said to be works that are reasonable or necessary to the rectification of water ingress occurring through the crack in the rendered surface of the garage wall referred to in the first inspection report and the first direction.
[36] Middling v QBSA [2005] CCT Q600-03.
[37] Ibid.
Whilst only one area is shown in the photograph in the inspection report, the report notes “evidence of water ingress through the block wall to both sides of the garage wall” and the defect location is “garage walls”. Additionally Mr Slade gave oral evidence that he intended the direction to rectify the water ingress to the garage to relate to the whole of the garage and that in his inspection report, he was referring to walls on both sides of the garage, not to both sides of one wall.
Member Lorisch in the matter of Middling[38] was not prepared to approve of an item in a scope of works as it did not, he said, “on its face (nor is there any evidence which suggests that it does) address and otherwise deal with what is reasonably necessary for the purposes of rectifying the defective works in the corresponding item…of the Direction to Rectify”.
[38] Ibid at [9].
In the matter before me it might be said that there is ambiguity in what is referred to in the relevant direction to rectify. However, taking into account other evidence which is available, that is, what is contained in the inspection report and Mr Slade’s oral evidence, I am satisfied that the subject of the direction to rectify, is water ingress through the block wall(s) of the garage and that items 4 and 5 of the scope of works are reasonably necessary to rectify that defect.
I set aside the Authority’s decision of 27 February 2012 and substitute in its place a scope of works which includes items 1,2,4,5 and 6 and excludes item 3 as contained in the Authority’s scope of works under review.
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