Turcinovic v Queensland Building Services Authority
[2012] QCAT 14
•24 January 2012
| CITATION: | Turcinovic v Queensland Building Services Authority [2012] QCAT 14 | |
| PARTIES: | Mr Hajrudin (Harry) Turcinovic | |
| v | ||
| Queensland Building Services Authority | ||
| APPLICATION NUMBER: | GAR097-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 17 May 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr J Allen, Member |
| DELIVERED ON: | 24 January 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for review is dismissed. |
| CATCHWORDS: | REVIEW OF SCOPE OF WORK – whether scope of work reasonable and necessary –compliance with Australian Standards Queensland Building Services Authority Act 1991, ss 86, 87 |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: | Mr Turcinovic appeared for himself |
| RESPONDENT: | The Queensland Building Services Authority was represented by Ms Farthing, an in-house solicitor |
REASONS FOR DECISION
Mr Turcinovic built a block of 6 townhouses at 50 Waratah Avenue, Carina which were completed in March 2008. There were complaints made to the authority in regard to the building work by the owners of several of the townhouses, some of which were attended to by Mr Turcinovic. The Authority’s inspector Mr Michael Pehrson determined that there were defects in respect of the termite treatment system which were made the subject of directions to rectify issued to Mr Turcinovic and which the Authority determined had not been complied with. The Authority then issued a scope of work for defective building work and Mr Turcinovic has made application for the Tribunal to review the scope of works.
The parties have agreed that the issue in dispute is whether the work identified in the attached scope of work (set out below) is required to rectify the defects listed at:
a)Item 1 of direction to rectify number 33167 (in respect of 1/50 Waratah Avenue, Carina)
The perimeter termite management system that has been installed at this unit does not comply with the BCA or Australian Standard 3660.1 2000 Termite management-New Building Work-Cat 1 defect;
b)Item 4 of direction to rectify to rectify number 33281 (in respect of 2/50 Waratah Avenue, Carina)
The perimeter termite management system that has been installed at this unit does not comply with the BCA or Australian Standard 3660.1 2000 Termite management-New Building Work-Cat 1 defect (item 7.1 of the BSA report);
c)Item 1 of direction to rectify number 33174 (in respect of 4/50 Waratah Avenue, Carina)
The perimeter termite management system that has been installed at this unit does not comply with the BCA or Australian Standard 3660.1 2000 Termite management-New Building Work-Cat 1 defect (items 13-17 of the BSA report) ;
d)Item 1 of direction to rectify number 33393 (in respect of 5/50 Waratah Avenue, Carina Heights)
The perimeter termite management system that has been installed at this unit does not comply with the BCA or Australian Standard 3660.1 2000 Termite management-New Building Work-Cat 1 defect, and
e)Item 1 of direction to rectify number 33245 (in respect of 6/50 Waratah Avenue, Carina)
The perimeter termite management system that has been installed at this unit does not comply with the BCA or Australian Standard 3660.1 2000 Termite management-New Building Work. Certificates from a licensed pest Controller identifying the termite control measures installed, and the date of installation will need to be provided to the BSA before any rectification will be accepted, Confirmation of the slab step-down to the rear patio being poured as a monolithic slab will also need to be provided-Cat 1 defect (item 7 of the BSA report.
The scope of works dated 9 November 2009 was in the following terms:
Item 1
Allow to provide 2 no. additional masonry fixings to each of the timber fence plats located on the external masonry walls of the units to allow a 125 mm section of the plate to be removed.
The bolts are to be located either side of the Kordon barrier located at the bottom of the weep hole level and the timber to be removed is to allow a 75 mm visual barrier below the Kordon barrier and 50 mm above.
Item 2
Allow to remove the concrete pathways from the fronts of the front entry doors and the garages of units 1, 2, 3, 4, 5 and 6 to allow the installation of a reticulated termite management system.
Install a complying reticulated termite management barrier across the front entry door, down the side of the garage wall and across the front of the garages.
Reinstate the pathway to match the existing concrete as closely as possible.
Item 3
Allow to provide a reticulated termite management system to the front north/east corner of Unit 1 to provide a complying termite barrier where the existing Kordon barrier has been compromised by the installation of a cover duct to the electrical cabling supplying the mater box.
Item 4
Allow to open a gap in the junction between the concrete stair and the rear weep hole/damp course/Kordon level of the patio to unit 4 and install a termicide sealant along the gap.
Item 5
All disturbed areas to be made good to match existing and on completion clean, (note all rectification work to be in accordance with the building code of Australia and any manufacturers recommendations).
The Tribunal has power to a review a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work[1]. The statutory insurance scheme, when a claim is allowed, indemnifies consumers who have suffered loss as a result of defective construction work which is not rectified by the building contractor[2]. As a person affected by a reviewable decision Mr Turcinovic may apply to the Tribunal for a review of the decision[3].
[1]Section 86(1)(g) of the Queensland Building Services Authority Act 1991 and section 75 Tribunal work includes the erection or construction of a building.
[2]Section 70 and 74 of the Queensland Building Services Authority Act 1991 and terms of the BSA Insurance Policy Conditions.
[3] Section 87 of the Queensland Building Services Authority Act 1991.
At the hearing Mr Turcinovic accepted item 1 and 5 of the scope of works. It was also agreed between the parties that item 3 had been resolved. That left items 2 and 4 for consideration by the Tribunal.
The Authority has submitted that the issue for the Tribunal in an application to review a scope of works is whether the scope of works is reasonable and necessary to rectify the defects subject of the direction to rectify[4].
[4]TADC v Queensland Building Services Authority [2004] QCCTB 28 and Middling v Queensland Building Services Authority [2005] CCT Q600-03.
To be able to determine this issue it is necessary to have an understanding of the defects in question. These relate to the termite management system installed at the premises which according to Mr Mark Porter a pest inspector engaged by the Authority is Kordon, a chemical barrier in a non-soil matrix, this was confirmed by the receipt of Kordon site installation reports from the installer Eddy’s Pest & weed Control[5]. Kordon as a slab perimeter barrier is inserted between the frame bottom plate and brick outer leaf. The installation of Kordon requires a 75 mm inspection zone between the ground line and the edge of the Kordon barrier[6]. Mr Porter also noted that some termicide sealant ( a chemical barrier in a non-soil matrix) appears to have been used to attach metal plates near the garage entries as part of the termite barrier[7].
[5] Exhibit 3 statement of Mark Porter MP-1 page 2.
[6] Exhibit 6 Kordon-FAQ.
[7] Exhibit 3 MP-1 page 2.
Mr Pehrson's written evidence
The Authority’s inspector Mr Michael Pehrson noted in regard to unit 1 that the termite management system was in one townhouse buried under the driveway slab and that the timber reveal at garage door is sitting out over the Kordon and will allow easy access for termites to the dwelling[8]. In his report in regard to Unit 3 that the concrete paving has not been finished 75mm below the bottom of the weepholes, however the Kordon manufacturer’s information will allow a step of 30mm if the surface below is hard paved and the falls are away from the building. The photo below depicts the driveway slab at the same level as the garage slab step-down with the timber reveal resting directly on the step-down. As such the termite barrier could not be 30 mm above the external slab. The timber reveal at the garage door is sitting out over the Kordon and will give easy access for termites[9]. In his report in regard to unit 4 the external perimeter termite barrier system has been breached in various places around unit including no “V” joint in the render at the termimesh perimeter barrier, conduits, service pipes and fencing in various places breaching the perimeter barrier. The verandah steps are breaching the termite barrier[10].
[8] Exhibit 4-statement of Michael Pehrson annexure MP- 2 (unit 1 report at page 8 ).
[9] Exhibit 4- MP-3 (Unit 2 report a page 7).
[10] Exhibit 4-MP-4 (unit 6 page 7 and 8.
Mr Pehrson stated that each of the directions required the rectification of “the perimeter termite management system installed at this unit”, however, given the nature of termites, where the authority determines that the termite management system requires rectification in relation to one unit, it is necessary to rectify the termite management system to the entire building, and in this case because both buildings in the development were affected, the entire development being units 1 to 6 inclusive[11]. Mr Pehrson relied on the statutory declaration of Mark Porter in relation to the scope of works[12].
[11] Exhibit 4 at page 5.
[12] Exhibit 4 at page 6.
Mr Porter’s reports
[10] Mr Mark Porter a qualified pest inspector who was engaged by the Authority to perform site inspections in relation to termite issues at 50 Waratah Avenue, Carina and provided reports dated 18 September 2009, 14 September 2010 and 14 December 2011[13]. In Mr Porter’s first report he identified that at the time of construction, the termite protection was required to comply with Australian Standard 3660.1-2000 Protection of buildings from subterranean termites Part 1: New Buildings. Compliance is also required with the January, 2001 Queensland only Building Code amendments in the termite issue[14].
[13] Exhibit 3 at page 1 and 2.
[14] Exhibit 3 MP-1 at page 2.
[11] Mr Porter noted that the termite barrier installation has been compromised by the installation of a timber or metal plate against the homes to support the attached fencing[15]; this relates to item 1of the scope of works which has been accepted by Mr Turcinovic. He also observed that the external slab heights have compromised the 75 mm inspection zone below the weep hole/damp proof course/Kordon level at each of the townhouses. That the slab height issue appears to have been addressed by the installation of Kordon installed to the joint between the driveway and garage slabs, and in some areas by the installation of a metal plate, and termicide sealant[16]. It was noted that there were no documentation available for the termicide sealant installation[17]. If appropriate certificates can be provided, detailing the Termicide Sealant and Kordon Installation effectively being able to prevent hidden termite access to the townhouses, the slab height will be considered a “technical” defect, and no further action will be recommended[18]. At the rear of townhouse 4, the 75 mm inspection zone below the weep hole/damp course/ Kordon level has been compromised by the installation of steps, termicide sealant is not visible at the joint between the steps and Kordon. In this instance the top of the step is at or above the height of the weep hole/damp course/Kordon level, allowing potential hidden termite access[19].
[15] Exhibit 3 MP-1 at page 3.
[16] Exhibit 3 MP-1 at page 4 and 5.
[17] Exhibit 3 MP-1 at page 5.
[18] Exhibit 3 MP-1 at page 6.
[19] Exhibit 3 MP-1 at page 5 and 6.
[12] A sentircon termite bait station was said to be visible to the exterior perimeter of unit 1. It was stated by Mr Porter that this offers no residual termite protection and is not recognised in the building Code and cannot be relied upon by the builder as part of the termite protection at this townhouse complex[20].
[20] Exhibit 3 MP-1 at page 7.
[13] Drill holes were noted to the exterior perimeter of townhouse 6, suggesting some retrospective termite treatment had been carried out using chemical termite barriers[21]. Mr Porter states that under the January, 2001 Queensland Building Code amendments, in order to use a chemical termite barrier, a reticulation system must be installed to allow reinstatement of the chemical termite barriers. Reinstatement of the termite barriers using a drilling and injection technique does not comply with the January, 2001 Queensland Building Code amendments. This chemical termite barrier cannot be relied upon by the builder as part of the termite protection at this townhouse complex[22].
[21] Exhibit 3 MP-1 at page 8.
[22] Exhibit 3 MP-1 at page 8.
[14] Mr Porter confirmed in his second report that he had received a certificate of termiticide application detailing the installation and charging of a reticulation system near the electricity meter box and the installation of termicide sealant to townhouses 1, 2 and 3. The certificate did not identify the volume of termiticide used (required)[23]. It is noted in the report that the issue in regard to the fences has not been addressed[24]. The issue in regard to the external slab heights is said to have been partially addressed. Certification is still required for townhouses 4, 5 and 6[25]. It is also noted that the steps at unit 4 have not been addressed[26].
[23] Exhibit 3 MP-2 at page 2.
[24] Exhibit 3 MP-2 at page 4.
[25] Exhibit 3 MP-2 at page 6.
[26] Exhibit 3 MP-2 at page 7.
[15] In his third report following an inspection on 14 December 2011 Mr Porter state its purpose was to assess the additional works undertaken by the builder since the last visit to meet the builder and developer to ascertain the actual construction methods used and to allow a scope of works to be prepared in relation to the termite issue[27]. In regard to the termite barriers compromised by attached fencing Mr Porter recommended the fencing supports be cut to expose an area from some 50 mm above the termite barrier/weep hole/damp course level to at least 75 mm below the termite barrier/ weep hole/ damp course level to prevent termites from gaining hidden access to the townhouses[28].
[27] Exhibit 3 MP-3 at page 2.
[28] Exhibit 3 MP-3 page 4.
[16] It is recommended in regard to the slab height issue that at townhouses 1 and 3 (construction different for townhouses 2, 4, 5 & 6), cut the concrete where the driveway slab joins the garage slab. Install an appropriate termite barrier to the joint between the driveway and garage slabs, and reinstate concrete. At all townhouses, ensure the weep hole/termite barrier level is scribed at the correct height. Where a 75mm inspection zone isn’t available below the weep hole/termite barrier level, we recommend the ableflex be removed, and the area between the termite barrier and the external slab be joined using termicide sealant or a similar termite barrier. In some areas, it will be appropriate to cut or grind the external slabs to allow the effective installation of the termite barrier. If appropriate documentation cannot be provided we recommend the Termicide sealant and metal plates be removed and reinstated (preferably by the original termite barrier installer (Eddy’s Pest & Weed Control), ensuring termites can’t gain hidden access to the townhouses[29].
[29] Exhibit 3 MP-3 page 6.
[17] It is recommended in regard to the external step at townhouse 4 that the joint between the steps and the weep hole/damp course/Kordon level be opened, and termicide sealant (or a similar termite barrier) be installed, ensuring termites can’t gain a hidden access to the building[30].
[30] Exhibit 3 MP-3 page 7.
Mr Turcinovic’s evidence and submissions
[18] Mr Turcinovic did not file a statement of evidence in respect of the application. He provided a report from Mr Edward Lew the pest controller who installed the Kordon Termite barrier. Mr Lew confirmed that his firm had carried out the initial installation of the ‘Kordon’ termite barrier and further work in regard to two areas, adjacent to the garage entry and in front of the units adjacent to the electricity meter cupboard[31]. Mr Lew commented on Mr Porter’s report and agreed with the rectification in regard to the fences. In regard to height of the visual inspection gaps he stated that it is the design of the units that preclude the 75mm minimum gap, and that in the majority of cases the gap is provided, except where the concrete driveways and the garage slabs meet, (where two concrete slabs met) the visual inspection may be carried out at anytime. In addition a termicide sealant has also been installed as a further barrier to infestation. In regard to item 3 that the topstep is 170 mm below the slab and Kordon layer, allowing visual inspection from the top and two sides and is unlikely that infestation would be accessed via this means, however, as a further means of protection the method adopted in this report has been carried out. The bait station identified by Mr Porter in his 2008 report is said to be a cover to the reticulation system identified in the most recent certification. Mr Lew stated that the drill holes were carried out by someone else and not his firm.
[31] Exhibit 1-Report of Edward Lew dated 30 September 2010.
[19] At the hearing Mr Turcinovic stated that the reticulation system is ok and the building had a monolithic slab with the footings together. That to cut the concrete would make more mess and that drilling holes would work and be cost effective. A simple solution would be drilling and injecting a liquid barrier done with monolithic slab. He stated that the step in townhouse 4 had been built out of formwork and solid concrete and that before the mortar was applied the step was already in place.
[20] Mr Christopher Lew gave evidence for Mr Turcinovic. Mr Lew stated that he was the installer of the chemical barrier at the townhouse and that it would be easier to drill and inject into the concrete. That holes would be drilled approximately 100mm from the building and every 200mm apart and the chemical of choice was termidor. Styrofoam or silicone would be used to plug the holes with colour matching to the pathway. He said there was no need to cut the concrete out and the same could be done in respect of the step. When queried as to whether this would comply with AS 3660.1 200 he said that it would if the label was followed.
[21] Mr Turcinovic also provided a report to the tribunal from Lenore Chambers of Mr Extermin8 Pest Control. This report noted that the Kordon barrier had been breached and that it could be rectified by the installation of a reticulation system and a chemical barrier. Again with termidor as the treatment product. This involved digging a trench around the perimeter of the unit's soiled areas requiring a reticulation system. Thereafter a chemical barrier to concreted areas require drilling at 200mm intervals, thereafter termidor is injected into each hole and capped with plastic plug. It is stated that all treatments protect clients in accordance with AS 3660.2-2000.
Mr Pehrson at the hearing
[22] Mr Pehrson in his evidence at the hearing stated that AS 3660.1 applies to new dwellings and AS 3660.2 to treatment of existing dwellings. That as 50 Waratah Avenue was a new dwelling AS 3660.1 applies and that the drill and inject method is not listed in AS 3660.1 as a treatment method which applies to new construction. Mr Pehrson did acknowledge that the townhouses were now 3 years old. While the drill and inject method would be suitable for a termite infestation this work has to be assessed under AS 3660.1, so that method can’t be used. Item 2 of the scope of work is required because the existing termite treatment does not comply with the Australian standards and the method set out is a reasonable method to rectify the defect. While it had been discussed whether to only cut out small sections individually it would be more difficult to do so. This was the most economical and compliant way of doing the work.
[23] Mr Pehrson produced photos[32] of the townhouses at the hearing. These showed that the pathways installed encroached on the weep holes in the walls which could allow termite entry. They also showed the use of aluminium angle and termite treatment at the garage entry of some townhouses where the driveway slab net the garage slab and the timber. The photos clearly show the step in unit 4 is below an adjacent weep hole indicating that the step is below the level of the Kordon termite barrier. Mr Pehrson noted that no proof had been provided by Mr Turcinovic that the patio in townhouse 4 was a monolithic slab.
[32] Exhibit 5.
Mr Porter at the hearing
[24] Mr Porter in his evidence at the hearing stated that the slabs had been poured too high covering the weepholes and it was necessary to install a system under the slab and put in reticulation, that this would be a permanent fix for the defect otherwise would require the 75 mm inspection gap. The solution proposed by Mr Turcinovic of drilling and injecting does not comply with the Building Code of Australia amendments of 2001 and is therefore not acceptable.
[25] The important thing is to ensure that termites can’t gain hidden access to the townhouses and that to do that most of the pathways need to be removed. And that the previous work done at townhouses 1, 2 and 3 house not properly dealt with the issue.
Discussion
[26] Mr Turcinovic’s case is that item 2 of the scope of works is unnecessary and that an appropriate solution to the rectification of the defect in regard to the pathways is the drilling and injecting of termidor along the concrete pathways around the townhouses where the termite barrier have been breached. The tribunal notes that the directions to rectify in respect of this item specify that the termite barriers have not complied with Australian Standard AS 3660.1 which deals with new building work.
[27] The work required here has arisen as a result of defective building work in regard to a new dwelling and not an infestation of termites in an existing dwelling. The standard applicable should be the standard in respect of a new dwelling and this is what is set out in the direction to rectify. It is not the direction to rectify which is being reviewed here it is the scope of work and so the scope of work must be reasonable and necessary to rectify the defect in accordance with the earlier mentioned authority which is accepted by the Tribunal.
[28] The drill and inject method is not one which is available under AS 3660.1 on the evidence of Mr Pehrson which was not disputed by Mr Turcinovic. Mr Turcinovic’s own evidence from Extermin8 clearly showed that the drill and inject method would comply with AS 3660.2 existing dwellings only. Mr Turcinovic has not provided any evidence to the tribunal of a method of rectifying the defect in regard to the pathways which would comply with AS 3660.1. The Tribunal accepts that the scope of work in regard to item 2 is both necessary and reasonable to rectify the defect in regard to the pathways.
[29] Item 4 of the scope of works relate to the topstep on the patio of townhouse 4 being above the line of the weep hole/ Kordon level. While Mr Turcinovic had claimed that this area was a monolithic slab there was no proof provided and the item (item 17 of the BSA report) was made part of direction to rectify. Mr Turcinovic cannot now contend that there is no work necessary in respect of the steps and it is a question of whether the scope of work is reasonable and necessary to rectify the defect. The drill and inject method is again not appropriate as it is new work. The method set out in the scope of work requires that the joint between the step and the main slab be opened up and for a termicide sealant to be installed along the gap. This will comply with AS 3660.1 according to Mr Porter and ensures that there will be no points where termites can gain entry to the townhouse. The tribunal accepts that that this item of the scope of work is reasonable and necessary to rectify the defect.
[30] The Tribunal notes that Mr Turcinovic has agreed to perform items 1 and 5 of the scope of works and the parties have agreed that item 3 has been complied. Therefore there is no part of the scope of works which the tribunal has rejected or changed.
[31] The application for review is dismissed.
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