TOWNSEND and KAZIM
[2022] WASAT 10
•9 FEBRUARY 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: TOWNSEND and KAZIM [2022] WASAT 10
MEMBER: MS KY LOH, MEMBER
HEARD: 16 AND 17 NOVEMBER 2021
DELIVERED : 9 FEBRUARY 2022
FILE NO/S: CC 119 of 2021
CC 120 of 2021
BETWEEN: GREG TOWNSEND
First Applicant
RACHEL CAMERON
Second Applicant
MARK CAMERON
Third Applicant
AND
DAVID KAZIM
Respondent
Catchwords:
Building services complaint - Preliminary issue - Whether 'undervalued' works approved in building permit are 'unauthorised works' - When date of completion to be calculated where notice of completion filed after complaints lodged
Legislation:
Building Act 2011 (WA), s 3, s 16(c), s 20(1), s 20(1)(b), s 20(2), s 29(1)(a), s33(1), s34(1), s 51(1), s 153(2), Div 2, Pt 2
Building Regulations 2012 (WA), reg 18
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s3, s 5(1), s 6, s 6(1), s 6(2), s 6(2)(a), s 6(2)(b), s 11(3)
Building Services (Complaint Resolution and Administration) Regulations 2011 (WA), reg 5A, reg 7(a)
Building Services (Registration) Act 2011 (WA), s 151(4)
Building Services (Registration) Regulations 2011 (WA), reg 13(1), Sch2, cl 1, cl 2, Sch 3
Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374AAA
Result:
Applicants' applications dismissed
Representation:
Counsel:
| First Applicant | : | Mr A Prime |
| Second Applicant | : | Mr A Prime |
| Third Applicant | : | Mr A Prime |
| Respondent | : | Mr R Lilley |
Solicitors:
| First Applicant | : | Anthony Prime Legal Services |
| Second Applicant | : | Anthony Prime Legal Services |
| Third Applicant | : | Anthony Prime Legal Services |
| Respondent | : | Douglas Cheveralls Lawyers |
Case(s) referred to in decision(s):
Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289
Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49
Macquarie Bank Ltd v Fociri Pty Ltd & Others (1992) 27 NSWLR 203
Muller v Dalgety & Co Ltd (1909) 9 CLR 693
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In November 2019, February 2020 and August 2020, the legal and beneficial owners of a Bedford property (property), Mr Townsend and Mr and Mrs Cameron (owners), lodged complaints about the workmanship of renovation works undertaken by the previous owner of the home, Mr Kazim (seller).
The seller disputes that the works were unauthorised such as to enliven the jurisdiction of the Tribunal to deal with the complaints.
In any event, the seller says that the 'defective' works were completed more than six years ago, so the owners are out of time to lodge their complaints.
The owners say that the seller did not obtain the correct building approval for the works based on an undervalued estimate of the works. Further, the complaints were lodged within time if the date of completion of works is taken from the date the seller lodged the notice of completion with the City of Bayswater (City), or, alternatively, the works are taken to be incomplete.
Following an investigation by the City, it considered that the stormwater disposal system and stormwater gutter system were inconsistent with the seller's approved building permit.
I am satisfied that, to the extent that the items of the owners' complaints encompass those identified works, they are 'unauthorised works'.
I find that the date from which the limitation period should be calculated is the date when the unauthorised works were completed, as the notice of completion was only filed after the complaints were lodged.
I am also satisfied that the works other than the alfresco works were completed by, at the latest, October 2013, and so I find that the unauthorised works were filed out of time.
Issue for determination
The preliminary issues for determination are:
1)The dismissal of the proceedings on the basis that the applicants do not have standing to bring a claim because the complaints do not relate to a regulated building service.
2)The dismissal of the proceedings as being out of time.
In determining the preliminary issues, the following matters arise for consideration:
a)whether the works constitute 'unauthorised works' within the meaning of 'regulated building service' under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Act)?; and
b)if the answer to a) is yes, when were the works completed?
Background
The following facts are not in dispute between the parties.
Factual background
At all relevant times, the seller was not a registered building service contractor nor had an owner-builder approval under the Building Services (Registration) Act 2011 (WA) (Registration Act).
In February 2010, the seller purchased a lot in Bedford, described as Lot 837 on Plan 2703, with an existing house on the front of the lot.
On 12 March 2012, the seller applied to the City for a building licence to construct a patio, laundry/carport and fence to the existing building, at an estimated value of $20,000.
Architectural and engineering plans for the works were submitted with the application.
On or about 20 April 2012, a City officer emailed the seller seeking outstanding items to be addressed in his application.
On 23 April 2012, the seller relevantly provided to the City a budget for the renovation totalling $19,320.
On 26 April 2012, the seller was issued with building permit BA120206 (permit) for building work described as 'non habitable alfresco, front fence, carport, laundry and garage modifications'.
The permit stated that the '[e]stimated value of building work (as determined by Permit Authority)' as $19,320.
The validity of the permit was stated as two years from the date of the permit.
The proposed works were undertaken, although the parties disagree about the scope, timing and extent of some of those works.
On or about 12 July 2018, the seller applied for subdivision of Lot 837 into Lots 33 and 34 on Deposited Plan 71213.
On or about 29 November 2018, the seller and Mr and Mrs Cameron (both in her personal capacity and as trustee of G. T. Trust (Trust)) entered into a conditional contract for sale of the property (then proposed Lot 33).
On or about December 2018, new titles for Lots 33 and 34 were issued.
Following settlement, Mr and Mrs Cameron were registered as proprietors of the property (Lot 33) on 25 January 2019.
On 10 August 2020, the seller lodged a notice of completion with the City, stating the date of completion as 1 September 2013.
In August 2021, the City investigated the owners' complaint of unauthorised building works with a site inspection undertaken by a compliance officer and senior building surveyor.
The City considered some of the building works undertaken were inconsistent with the permit, relevantly, that:
a)the stormwater disposal system did not appear to be performing as intended causing ponding within the allotment. It would also appear that stormwater was not being adequately contained within the allotment with respect to the hip/gable end which was adjacent to the adjoining properties driveway; and
b)the stormwater gutter system adjoining the carport and the verandah was in need of replacement or maintenance as it was considered to be inadequate.
The City requested that the matters be addressed and rectified to avoid the need for consideration of prosecution for carrying out works which are not in compliance with approved plans.
Timeline to proceedings
By complaint received by the Building Commissioner (Commissioner) on 19 November 2019, the owners lodged a building services complaint against the seller for the following complaint items:
Item/location/clause
Description
1.
Full external of house. External North wall. Sout[h] wall. West wall.
Sewer line not enough fall. No (IO) inspection openings. Incorrect size waste pipes from laundry and no air vents.
2.
Front South/East side.
Storm water drains need to be replaced. Concrete drive. Running back into dwelling workshop.
By complaint emailed to the Commissioner on 4 February 2020, the owners lodged a building services complaint against the seller for the following complaint item:
Item/location/clause
Description
1.
Double carport
Ceiling cracking joints, cornice falling off. No joint tape used.
By complaint received by the Commissioner on 4 August 2020, the owners lodged a building services complaint against the seller for the following complaint item:
Item/location/clause
Description
1.
External. East Parapet wall.
No gutter fitted. Rising damp, roof water running onto next doors property. His property David Kazim and running down the parapet wall lifting paint and soaking the wall.
Following investigation by the Commissioner's delegates, proposed building remedy orders (BROs) were issued by the Commissioner on 27 October 2020.
The seller challenged the proposed BROs on the basis that the complaints were lodged out of time and so the complaints should have been dismissed by the Commissioner.
The Commissioner referred the complaints to the Tribunal on the jurisdictional issue.
The seller's case
The seller's primary contention is that there is no jurisdiction to issue a BRO as the works did not constitute 'regulated building service' and denies that such works fall within that definition as 'unauthorised works' as the value of the works falls under $20,000.
In particular, the seller presses a meaning of 'value' which allows actual value or cost to him to be taken into account.
In any event, he says that the assessment of value is to be undertaken by the City, which must have been sufficiently satisfied to have issued the permit.
Having been so satisfied, the seller is entitled to rely on the authority under that permit to conduct the works, and it is not permissible to look beyond that authority.
If the seller is unsuccessful on this contention, the seller submits that the complaints were lodged out of time as the works the subject of the complaint were, as a matter of fact, completed by September 2013.
To the extent that further work on the alfresco area was undertaken outside the term of the permit, those works cannot be taken to have been undertaken under the permit, and, in any event, did not include works the subject of the complaint.
The seller gave oral evidence at the hearing.
The owners' case
The owners do not dispute that only relevant limb of the definition of 'regulated building service' is 'unauthorised works'.
The owners say that the works are 'unauthorised works' as the works stretch beyond what could be authorised under a building permit, being works to a value greater than $20,000, as independently assessed by a quantity surveyor.
The owners disagree that the meaning of 'value' can take on a subjective construction and should be closer to the notion of 'market value'.
The owners also dispute that the complaints were lodged out of time on the following alternate bases:
a)the date of completion should be taken to be the date the notice of completion was lodged, as the prescribed criteria pursuant to s 6(2)(a) of the Act;
b)alternatively, the date of completion should be either indeterminate (since the works the subject of the permit have not been completed) or sometime between May to November 2015 (when alfresco completed) or sometime between 2012 to 2019.
The owners say that the date of completion must be calculated from when all the works the subject of the permit have been completed, which, at the earliest, is when the alfresco was completed.
Mr Townsend gave oral evidence at the hearing, and the owners also called Mr Paul Rafferty, a quantity surveyor.
Evidence
Mr Rafferty
Mr Rafferty is a quantity surveyor with nearly 40 years of experience in the construction industry.
He prepared an expert report dated 11 August 2021, which provided a high-level cost estimate of the works approved in the permit in the range of $60,000 to $65,000, which range excluded a contingency amount commonly allowed for in the building industry.
In oral testimony, he clarified that his estimate included a builder's overhead margin on trades work of between 20% to 25% to allow for the builder's perceived assessment of risk, which he agreed would not be applicable if the owner builds the house.
Disregarding the builder's overhead margin, Mr Rafferty's cost estimate is reduced to $42,875 to $50,000 (excluding GST).
Mr Rafferty assumed in preparing his estimate that subcontractors are acting on an arms' length basis (and have their own margins), consumables are purchased at wholesale value, the seller paid commercial prices for all services engaged, and there was no staging of the works.
Mr Gregory Townsend
Mr Townsend relies upon his witness statement dated 25 August 2021 and his oral testimony at the hearing.
Mr Townsend gave evidence that he is the primary beneficiary of the Trust and has since been registered as the trustee of the Trust.
He had inspected the property on 17 January 2019, prior to settlement on 25 January 2019, and had been told by the seller that the latter had undertaken renovations to the property, including the outdoor alfresco, double garage, new bathroom in the laundry and the new workshop.
Mr Townsend said that after moving into the property, he noticed the toilets and laundry gurgling. When it rained, the gutters and downpipes all overflowed, flooding into the workshop, down the western side of the house and flooded the front lawn and front veranda.
The seller told Mr Townsend that there was one soakwell in the front lawn.
The seller
The seller relies on his witness statement dated 13 September 2021, as amended by his oral testimony at the hearing.
The seller stated that, having reviewed aerial photographs of the property lodged by the owners depicting a birds-eye view of the property as at specific dates in 2010 to 2018, it refreshed his memory about when the alfresco was completed.
He accepted that the alfresco was completed after September 2013, and to the extent that paragraphs of his statement referred to the alfresco being completed by September 2013, he sought to amend those paragraphs.
He conceded that the alfresco was completed sometime between May and September 2015, but could not specify the exact date.
The seller stated that he had to renovate the house on the property in two stages - the first in 2010, and the second in 2013.
In 2010, he renovated the house by painting and sanding the walls, renovating the ensuite and bathroom, and renovating the floors.
He did the renovation work either by himself or through friends in the industry on a 'contra deal' (eg. doing work for the tradesperson in return for the work they have done for him).
He applied for a building permit in 2012 to do works to the alfresco, front fence, carport, and laundry and garage modifications.
He was asked by the City to provide a breakdown of what he was going to spend on the works. He denied that he had made up the figures in his breakdown.
As part of the carport building, he stated that he put in two stormwater drains, which connected to the carport and a small part of the driveway.
He did not change the existing stormwater, which drained into the garden.
He stated that he enclosed the laundry because it was basically outdoor, and engaged a plumber to do plumbing work to the laundry.
He denied that he told Mr Townsend that he had completed a new bathroom.
He stated that he had not filed a notice of completion when he finished the works because he was told by a City staff member that he did not need to put one in due to a change in legislation at the time he had started the build.
He stated that in August 2020, he was told by a staff member of the Commissioner that he could file a notice of completion (a BA7 form) retrospectively, and so he lodged one on 10 August 2020. He denied that he chose a date of completion conveniently within the six-year limitation period. He said he did not know what a BA7 form was until he filed one for the property, as he had never had to apply for a building permit since the permit issued in respect of the property.
Legislative framework
Building service complaint
Under s 5(1) of the Act, a person may make a complaint to the Commissioner about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory.
Section 6(1) of the Act provides that a building services complaint is made out of time if made more than six years after the completion of the regulated building service to which the complaint relates.
Under s 6(2) of the Act, a regulated building service is taken to be completed:
a)if the criteria for determining the date of completion for that building service are prescribed - on the date determined in accordance with the criteria;
b)if paragraph a) does not apply - on the date on which the building service was last carried out.
The Commissioner must dismiss a complaint if it is made out of time as referred to in s 6 of the Act: s 11(3) of the Act.
Prescribed criteria for determining date of completion
Under reg 7(a) of the Building Services (Complaints Resolution and Administration) Regulations 2011 (WA) (Regulations), in the case of, relevantly, building work carried out under a building permit, the following criteria apply when determining the date of completion of a regulated building service for the purpose of s 6(1) of the Act - that is:
a)if the responsible person in relation to the permit gives notice of cessation to act as the responsible person to a relevant permit authority under s 34(1) of the Building Act 2011 (WA) (Building Act), the work, in relation to that person, is completed when the notice is given; or
b)otherwise the work is completed when a notice of completion of the work is given to a relevant permit authority under s 33(1) of the Building Act.
'Regulated building service'
'Regulated building service' is relevantly defined under s 3 of the Act as 'any other service or work prescribed for the purposes of this definition'.
Regulation 5A of the Regulations prescribes 'unauthorised work' as 'regulated building service', and has the meaning given in s 51(1) of the Building Act.
In turn, under the Building Act:
•under s 51(1) - 'unauthorised work' means 'work' that:
a)was done without an authority under a written law that was required by the written law applicable at the time the work was done; or
b)that did not comply with an authority under a written law that was in effect in respect of the work;
•under s 51(1) - 'work' is relevantly defined to include 'building work';
•under s 3 - 'building work' is relevantly defined as the 'construction, erection, assembly or placement' or the 'renovation, alteration, extension, improvement or repair' of a building or an 'incidental structure';
•under s 3 - 'incidental structure' is relevantly defined as a structure (or part of a structure) attached to or incidental to a building and includes a fence, freestanding wall, retaining wall; and
•under s 3 - 'authority under a written law' is defined as including an approval, licence, registration, right, permit or exemption granted under a written law.
'Unauthorised works'
Division 2 of Pt 2 of the Building Act provides for applications for building permits for doing 'building work' (or stages of building work) in respect of a building or an incidental structure of any classification.
Section 20 (1) of the Building Act sets out each of the matters on which a permit authority must be satisfied before granting a building permit, failing which the permit authority must refuse the application under s 20(2) of the Building Act.
By virtue of ss 16(c) and 20(1)(b) of the Building Act, the person who proposes to be named as the builder of a building permit must relevantly be a building services contractor or has owner-builder approval, unless the building work is of a kind specified by the Regulations.
Regulation 18 of the Building Regulations 2012 (WA) (Building Regulations) specify, for the purpose of s 20(1)(b) of the Building Act, building work that is not 'builder work'.
'Builder work' is relevantly defined under reg 13(1) of the Building Services (Registration) Regulations 2011 (WA) (Registration Regulations) as building work:
a)for which a building permit is required; and
b)with a value of $20,000 or more based on the value of the work estimated under Sch 2; and
c)carried out in an area of the State set out in Sch 3; but
d)does not include certain specified types of building work (such as the construction of an incidental structure).
Clause 2 of Sch 2 to the Registration Regulations provide that, for the purpose of estimating the value of work, and where the work is to be carried out other than under a contract, the estimated value of the work is the sum of the value (including the GST) of the relevant components.
'Relevant components' is defined under cl 1 of Sch 2 to the Registration Regulations as:
a)all goods (including manufactured goods forming part of the work); and
b)labour; and
c)services necessary; and
d)fees payable;
e)overheads to be met; and
f)profit margin.
Under s 29(1)(a) of the Building Act, the person named as the builder in the building permit must ensure that the building or incidental structure to which the permit applies is completed in accordance with the plans and specifications that are specified in the applicable certificate of design compliance.
The responsible person in relation to a building permit must, within seven days of completion of the work (or the stage of the work) for which the building permit was granted, give notice of completion to a relevant permit authority: s 33(1) of the Building Act.
Alternatively, the responsible person may, before completion of the work (or the stage of the work) for which the permit was granted, give notice of cessation to act as the responsible person to a relevant permit authority: s 34(1) of the Building Act. Such notice of cessation must relevantly include a statement that the work (or stage of work) for which the permit was granted is not completed and that the person has ceased to act as the responsible person.
Section 374AAA of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (Miscellaneous Provisions Act)
At the time the seller's permit application was being assessed by the City, it appears from the documents that the City had taken into account s 374AAA of the Miscellaneous Provisions Act, which prohibited a local government from issuing a building licence unless a person was registered as a 'building service contractor', or granted an owner-builder approval, or, relevantly, the value of the building work was less than $20,000.
Section 374AAA of the Miscellaneous Provisions Act came into operation on 29 August 2011 as a consequential amendment under s 151(4) of the Registration Act: see Government Gazette (26 August 2011), p 3475-6.
However, by 2 April 2012, s 374AAA of the Miscellaneous Provisions Act was removed as a consequential amendment under s 153(2) of the Building Act: see Government Gazette (13 Mar 2012), p1033.
As such, by the time further information was sought on the permit application by the City in April 2012, s 374AAA of the Miscellaneous Provisions Act no longer applied.
Preliminary Issue 1 - do the complaints relate to a regulated building service?
The collective focus of the parties on whether the value of the works hit the $20,000 threshold suggests that they consider the second limb of the definition of 'builder work' determinative to this preliminary issue; that is, by virtue of the works falling under the value of $20,000, it exempts the builder from the requirement to be a building services contractor or to obtain owner-builder approval.
The difficulty with the owners' challenge to whether the value of the works should have been greater than $20,000 is that this is an element to which the City had satisfied itself before granting the permit.
Indeed, it is stated explicitly on the permit that the estimated value of building work, as determined by the 'Permit Authority', is $19,320.
No challenge has been made to the exercise of the City's power and obligation to be so satisfied under s 20(1) of the Building Act. In fact, the City relies on the validity of the permit in requiring rectification of works which are not in compliance with the approved plans.
Thus, whatever interpretation may be given to the meaning of 'value', it is largely an academic point as the City's exercise of its power remains valid such that neither party can look beyond the grant of the permit as to the estimated value of works.
However, what remains a live issue is whether the seller's works complied with the permit, as the failure to do so may render the works unauthorised under limb (b) of the definition of 'unauthorised works' under s 51(1) of the Building Act.
I take the City's letters as evidence that part of the works fell outside the scope of the approved plans and the permit. This renders those specified works unauthorised for the purposes of s 51(1) of the Building Act and would fall within the definition of 'regulated building service'.
Of the works specified in the owners' complaints, only works relevantly related to stormwater disposal system and the stormwater gutter system constitute 'regulated building service' as 'unauthorised work' for which building service complaints can be made.
This encompasses only works which cover the complaint made on 19 November 2019 as to the front south/east side storm water drains (item 2), and works which cover the complaint made on 4 August 2020 about the lack of gutter fitted at the external east parapet wall, but only as to that part adjoining the carport and verandah.
Preliminary Issue 2 - were the complaints made out of time?
The cases establish that deeming provisions such as s 6(2) of the Act can be interpreted in a number of senses, either as an exhaustive definition or as a means of extending the sense which would otherwise have been given to words: Macquarie Bank Ltd v Fociri Pty Ltd & Others (1992) 27 NSWLR 203 at 226 per Kirby P, referring to Muller v Dalgety & Co Ltd (1909) 9 CLR 693 (Muller) at 696 per Griffith CJ. See also Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 at 65 per Windeyer J.
When used in the latter sense, it becomes very important to consider the purpose for which the statutory fiction is introduced: see Muller at 696.
In this case, it is logical for the legislature to set prescribed criteria for when it can be said that a regulated building service is completed, in particular, by reference to the date of lodgement of notices of completion or cessation required to be lodged in relation to a building permit. It sets an objectively verifiable date which does not invite investigation into factual matters.
However, this does not preclude work that s 6(1) of the Act may yet do in circumstances where such notices have not been lodged. Given that one of the purposes in the long title of the Act is to provide for 'a system for ensuring compliance with laws about building services', the legislature could not have intended for builders (including of unauthorised works) to escape scrutiny of their work by relying on their own non-compliance with lodging required notices with the local authority.
Another difficulty with construing s 6(2) of the Act as providing an exhaustive mechanism is highlighted in this case, where the seller is effectively in control of determining the very limitation period to which he is subject, given that that period only commences upon his lodgement of the relevant notice.
That the seller filed the notice of completion after the complaints have been filed cannot be accepted as effective lodgement, at least for the purpose of ascertaining the date of completion under s 6(1) of the Act, as that date must be ascertained at the time of the complaints in order to determine whether such complaints were filed within time.
Whilst it seems otiose for s 6(2)(b) of the Act to provide for an alternative process for ascertaining the date of completion if s 6(1) of the Act was never intended to be exhaustive, I interpret s 6(2) as taking effect only upon, or prior to, the enactment of regulation prescribing the relevant criteria.
In this case, criteria has been prescribed, which leaves no room for the application of s 6(2)(b) of the Act.
Instead, we must consider whether the legislature intended s 6(2)(a) of the Act to set out an exhaustive mechanism for ascertaining the date of completion of allegedly defective building service. In my view, for reasons set out in [108] - [109], it did not, and so there is further work for s 6(1) of the Act to do in establishing when, as a matter of fact, the building service was completed.
In this case, whilst the seller struggled with accuracy in his evidence as to dates of completion of aspects of the works, most markedly, in the completion of the alfresco, his evidence as to the completion of the rest of the works seem largely borne out by the aerial photographs tendered by the owners.
Most notably, between aerial photographs of the property taken in October 2012, January 2013 and October 2013:
a)the roof of the carport, which was being constructed in October 2012, had been completed and painted between January and October 2013; and
b)the laundry roof had been completed between January and October 2013.
The aerial photographs of the property taken in May and November 2015 show the roof of the alfresco being completed sometime between May and November 2015.
Of the unauthorised works, I find that:
a)the front storm water drains would have been fitted by October 2013 at the time the carport was completed; and
b)any works on a gutter system adjoining the carport and verandah would have been completed by October 2013 upon the completion of the carport.
I do not accept the bare submission by the owners that works to the alfresco at the back of the property necessarily involved the stormwater disposal system or the stormwater gutter system. Even if they did, the inadequacies of such systems are confined to those identified by the City, which do not stray into the alfresco area.
Given my findings, the date of completion of the unauthorised works was, at the latest, October 2013, in respect of which the owners would have had to lodge any complaints as to their deficiency by October 2019.
All of the complaints filed by the owners fall outside that time period, as such, I find that the complaints were made out of time.
Finally, as to the owners' submissions that the totality of the works must be considered in calculating the date of completion (including that the works the subject of the building permit have not all been completed), the definition of 'building work' does not suggest such a narrow approach needs to be taken.
In the Explanatory Memorandum to the Bill for the Act, the commentary to the definition of 'building service' in the Memorandum describes a building service as, 'in its broadest sense, any service or work provided in respect of the design, construction, maintenance or certification of a building' (emphasis added).
Further, it has been accepted by the courts that a drainage system can be a building or incidental structure for the purposes of the Act and the Building Act: Diploma Construction (WA) Pty Ltd v South Central WA Pty Ltd [2015] WASC 289 at [26].
As such, an alternative view is that the storm water drains and the gutter system are at least incidental structures, the construction of which would each fall within the definition of a building service.
Conclusion
For reasons set out above, I am satisfied the proceedings should have been dismissed as being made out of time under s 11(3) of Act, and that I do not have jurisdiction to deal with the complaints.
In light of my finding that the Tribunal has no jurisdiction, I consider that the application should be dismissed, and will accordingly make an order dismissing the proceedings.
Orders
The Tribunal makes the following orders:
1.As to the preliminary questions:
(a)The Tribunal does not find for '[t]he dismissal of the proceedings on the basis that the applicants do not have standing to bring a claim because the complaints do not relate to a regulated building service'.
(b)The Tribunal finds for '[t]he dismissal of the proceedings as being out of time'.
2.The applicants' applications are dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
9 FEBRUARY 2022
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