Young v Queensland Building Services Authority
[2014] QCAT 75
•24 February 2014
| CITATION: | Young v Queensland Building Services Authority [2014] QCAT 75 |
| PARTIES: | Deborah Young (Applicant) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | GAR060-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 1 November and 29 November 2013 |
| HEARD AT: | Townsville |
| DECISION OF: | Member Browne |
| DELIVERED ON: | 24 February 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Queensland Building Services Authority dated 28 November 2012 to not issue a direction to rectify is confirmed. |
| CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW –RECTIFICATION OF BUILDING WORK – decision to not direct builder to rectify – alleged defective work – complaint lodged by home owner – whether explanation for delay in making complaint provided – whether discretion to issue a direction to rectify should be made Queensland Building Services Authority Act 1991 (Qld) s 72 Queensland Building Services Authority v O’Brien & Ors [2002] QDC 329, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Deborah Young, self represented |
| RESPONDENT: | Queensland Building Services Authority represented by Shane Budden, Manager, Legal Services for the QBSA |
REASONS FOR DECISION
Ms Young purchased a fully constructed residential ground floor unit to live in at 41 Oonoonba Street, Idalia on 28 November 2007. The unit contained 2 bathrooms with a shower in both the ensuite and main bathroom.
The unit was one of many other units housed within a complex constructed by the builder Glenwood Homes Pty Ltd. Construction of the complex was completed no later than 24 July 2008.[1] Glenwood Homes went into liquidation on 15 April 2011 and no longer holds a builder’s licence.[2]
[1]The date of Certificate of Classification, see Statement of Reasons, p 6.
[2]The builder’s licence was cancelled effective 7 June 2011.
Ms Young made a complaint on 4 October 2012 to the Queensland Building Services Authority (QBSA) about issues she had with some of the building work inside her unit. The complaint made to the QBSA referred to 3 items: discolouration in the floor and wall tiles and water flowing out of the shower door, in both the ensuite and main bathrooms; plaster strip peeling in the ensuite bathroom; and 2 cracked tiles in the dining room.
The outcome that Ms Young was effectively seeking to achieve by lodging the complaint with the QBSA was to have the alleged defective works, in particular the shower and tiles in her ensuite and bathroom, rectified.
After receiving the complaint, Kevin Cameron, building inspector for the QBSA inspected Ms Young’s unit and a report was prepared by the QBSA dated 6 November 2012. The QBSA later determined on 28 November 2012 that it would not issue a direction to rectify to the builder, Glenwood Homes Pty Ltd.
Ms Young exercised her rights under the Queensland Civil and Administrative Tribunal 2009 to review the decision made by the QBSA before the Queensland Civil and Administrative Tribunal. The Tribunal, on review, has the same powers as the QBSA decision maker under the Queensland Building Services Authority Act 1991[3] in determining whether the discretion to issue a direction to rectify under s 72 should be exercised. The Tribunal on review effectively stands in the shoes of the QBSA decision maker and must make the correct and preferable decision following a fresh hearing on the merits.
[3]The relevant legislation at the time the decision was made. Effective from 1 December 2013 the Queensland Building and Construction Commission Act 1991 applies. Any references to the Queensland Building Services Authority is taken to be a reference to the Queensland Building and Construction Commission as per QCAT Practice Direction No 10 of 2013.
Ms Young seeks an order from the Tribunal that the decision made by the QBSA to not issue a direction to rectify to the builder be set aside and that a direction to rectify be issued to the builder.
The matter proceeded to a hearing in Townsville over 2 days. There was a site inspection of Ms Young’s bathrooms in her unit on the second day of the hearing.[4]
[4]The respondent, QBSA, made an application for a site inspection. The applicant, Ms Young, did not object to an inspection and a viewing of the showers. Directions were made by the Tribunal (by consent) on 1 November 2013 in relation to an inspection.
Ms Young relies on video footage of her shower in operation and expert evidence given at the hearing by Greg Dempster, surveyor, and Michael Surman, plumber and drainer. The QBSA relies on the evidence of Kevin Cameron, building inspector.
The QBSA’s Power to Issue a Direction to Rectify
There is discretionary power under s 72 of the Queensland Building Services Authority Act 1991 (Qld) (QBSA Act) that enables the QBSA and the Tribunal on review to issue a direction to the person who carried out defective or incomplete building work to rectify the building work. The term “defective” building work is defined in Schedule 2 of the QBSA Act to mean “faulty or unsatisfactory”.
The QBSA decision maker can take into consideration all the circumstances it considers are “reasonably relevant” in determining whether to issue a direction to rectify.[5] Section 72(14) of the QBSA Act provides that the QBSA is not required to give a direction if it is satisfied that, in the circumstances, “it would be unfair to the person to give the direction”.[6]
[5]Queensland Building Services Authority Act 1991 (Qld) s 72(2).
[6]Ibid.
In an earlier decision of the Tribunal, Taouk v Queensland Building Services Authority,[7] the role of the QBSA was considered in the context of exercising the discretion under s 72 of the QBSA Act upon receiving a complaint about alleged defective work. In Taouk’s case the Tribunal determined that the QBSA does not represent “aggrieved homeowners”;[8] and in considering a decision of the former Queensland Building Tribunal, stated:
…the Direction is not given solely for the benefit of the individual owner, but rather to discharge the [QBSA’s] responsibilities under the [QBSA Act], to ensure proper standards in the industry and rectification of building work. Nevertheless, in practice, the homeowner and the [QBSA] are often aligned in proceedings before the Tribunal.[9]
[7][2013] QCAT 508.
[8]Taouk v Queensland Building Services Authority [2013] QCAT 508 at [38].
[9]Ibid at [39]. See Garbutt-Cuttiford v QBSA [1999] QBT 80.
At the time the QBSA made its decision there was in place a policy applicable to rectification of building work.[10] The QBSA policy refers to category 1 and category 2 defects and circumstances where it may be unfair or unreasonable to issue a direction. In relation to a delay in making an “application” to the QBSA, the policy states:
the consumer should not delay making their application for a direction if the delay would result in the issue of the direction being unfair or unreasonable in the circumstances.[11]
[10]Effective from 19 November 2009, see respondent’s statement of reasons, “SOR-1”.
[11]Ibid.
The QBSA policy further provides that where there is category 1 or category 2 defective building work, the builder should be required to rectify the work unless in the circumstances “rectification is unfair or unreasonable”. A category 1 defect is a more serious defect because it, for example, “adversely affects the structural performance of a building”. A category 2 defect is defined, amongst others, as not meeting a “reasonable standard of construction or finish expected” of the builder.
The QBSA policy also provides that it may be unfair or unreasonable to issue a direction where the delay, in relation to category 1 defects, exceeds 3 months after the “defective work became apparent”. In cases of category 2 defects, the QBSA policy provides that where the delay exceeds 6 months after the building work was completed or left incomplete, it may be unfair or unreasonable to issue a direction.
Are the works category 1 defects?
Ms Young contends that the falls in the shower cubicle and bathroom are category 1 defects because they allow water penetration and do not comply with the Building Code of Australia. As a result of the alleged defective work, Ms Young contends that both showers in the ensuite and main bathroom, when in operation, do not drain adequately resulting in water to pond and overflow. This, Ms Young argues, results in damage to carpets and timber trimmings inside the unit.
Ms Young also contends that the tiles in both bathrooms are category 1 defects because they are not fit for purpose in that the tiles have not been end glazed, allowing water penetration.
Ms Young did not present any evidence at the hearing in relation to the other items identified in her complaint to the QBSA relating to the cracked tiles in the dining room and the plaster peeling in the ensuite except where the issue of the plaster peeling is otherwise relevant to the issue of water penetration.
It is submitted on behalf of the QBSA that notwithstanding the issue of whether the work is defective, the work, in particular the shower cubicles and tiles, is performing adequately and this is a relevant consideration in exercising the discretion under s 72 of the QBSA Act.
The Tribunal was shown a video at the hearing taken by Ms Young of her shower in operation. Ms Young contends that the video footage shows the water pooling at the floor and flowing under the shower screen; and that the water will flow more readily outside the shower cubicle when there is a person standing inside the shower.
I do not accept that the video footage taken by Ms Young is an accurate depiction of the shower in operation. Ms Young conceded during cross-examination on the first day of the hearing that she had directed the shower head towards the shower screen (during operation of the shower) and had kicked the water flowing out of the shower head. Ms Young stated that she did this to show where the water runs out of the shower cubicle while the video footage was being taken.
Ms Young also relies on a photograph tendered at the hearing as being evidence of water overflowing out of the bathrooms resulting in damage to her carpet in the hallway. The quality of the photograph tendered at the hearing is not clear and it is difficult to see any alleged water damage to the carpet in the photograph.
On the morning of the second day of the hearing there was a site inspection at Ms Young’s unit to enable the Tribunal and the respondent to view the showers in operation in both the ensuite and main bathroom. Ms Young operated both showers at full water release for several minutes during which time the Tribunal and respondent could observe its operation.
In relation to the main bathroom, the shower clearly functioned as a shower. I did not observe any water to immediately flow outside the shower cubicle. Some water did escape from the cubicle after a few minutes but the water was not excessive and did not flow outside the bathroom into the hallway onto the carpet.
In relation to the ensuite, the shower clearly functioned as a shower. I did not observe any water to escape the bathroom and flow outside the bathroom onto the outside carpet areas. I did observe some ponding of water after several minutes inside the shower but the water was not excessive.
The evidence of Mr Dempster
Mr Dempster prepared a report tendered at the hearing and gave evidence about the falls in floor finishes in the showers. Mr Dempster did not inspect the showers in Ms Young’s unit. He relied on video footage of Ms Young’s showers in operation taken by a member of his staff. He also relied on measurements taken by a member of his staff in relation to the floor levels in the bathrooms. Mr Dempster did not have with him at the hearing the video footage of the showers that he relied upon in preparing his report.
Mr Dempster refers to the Australian Standards that provide for certain floor levels for unenclosed showers to allow for waterproofing and drain to floor waste. Mr Dempster did not agree during cross-examination by the respondent that the showers in the ensuite and main bathroom are enclosed showers. Mr Dempster argues that there is a gap under the screen and this therefore makes the shower unenclosed.
Mr Dempster gave evidence that the bathrooms are not compliant with the Australian Standards because the levels are effectively inadequate such that there would be ponding of water to the floor because the water had “nowhere to go”. Mr Dempster, when questioned at the hearing, stated that it was possible to have a shower that functions as a shower notwithstanding the “falls” being not compliant.
Mr Dempster was not able to comment on whether there was evidence of water penetration in the showers. He stated that if there was evidence of water penetration it would be visible after 2 years in the outside bathroom areas. He also stated that after 2 years there would be wear and tear in that you would see a change in the grouting around the tiles. He did not provide an opinion in relation to the tiles in Ms Young’s showers stating that it is not within his area of expertise. He did, however, state that tiles in the shower must be water resistant to protect the sub-strait.
The evidence of Mr Surman
Mr Surman prepared reports and gave evidence at the hearing by telephone about the fall to floor waste in the showers. He stated that in both showers the falls are inadequate resulting in water to exit the bathrooms, enter the corridor and wet the carpet.[12]
[12]Exhibit marked “6”, report of Michael Surman, TAP 50, dated 19 July 2013, p 4.
In relation to the tiles in Ms Young’s bathroom, Mr Surman stated that the tiles have some discolouration. He also stated that tiling and wet sealing is outside his area of expertise.
I have some difficulty with Mr Surman’s evidence in relation to the operation of the showers in the ensuite and bathroom. Mr Surman inspected the showers in Ms Young’s unit and stated that he observed the water to flow over the sills out of the room and into the doorway.
During the inspection of Ms Young’s unit, the Tribunal did not observe water to flow over the sills and out of the bathroom. I did observe water to pond in certain areas in the ensuite bathroom after several minutes. The water was not, however, excessive and did not flow over the sills and into the doorway as stated by Mr Surman.
The evidence of Mr Cameron, QBSA
Mr Cameron has approximately 41 years in the building industry as well as being a building inspector for the QBSA. Mr Cameron gave evidence at the hearing about the showers and tiles in both the ensuite and bathroom. Mr Cameron refers the Tribunal to the Building Codes of Australia in relation to the definition of an “enclosed” shower area.[13] Mr Cameron states that the showers in Ms Young’s bathroom and ensuite are “enclosed” because they are sealed at the doorway and intersection of wall tiles and on the inside of the step-down. Mr Cameron stated that because the showers are enclosed showers there are only requirements for the fall to floor levels within the shower cubicle.
[13]Exhibit marked “13”, Building Codes of Australia 2006 Volume Two, page 372.
During cross-examination by Ms Young, Mr Cameron disagreed that he only took 2 levels from each corners of the floor waste in the bathroom. Mr Cameron states that in his opinion the fall to floor levels in the shower recess in both bathrooms are compliant. He relies on his report in relation to the “fall to drain” measurements taken by him. The report contains photographs that show the measuring instrument used by Mr Cameron, commonly referred to as a “bubble level”.[14]
[14]Exhibit marked “12”, SOR filed by the respondent, p 27.
Mr Cameron refers the Tribunal to the Building Code of Australia that requires drainage to a floor waste for a bathroom “located at any level above a sole-occupancy unit” where Ms Young’s unit is a class 2 building for the purposes of the relevant clause.[15] Mr Cameron states that Ms Young’s unit is a ground floor unit so there is effectively no requirement for a floor waste to enable water to drain – this is a requirement for occupiers of units above other occupancies.
[15]Exhibit marked “14”, Building Code of Australia 2005 Volume One, F1.11.
Mr Cameron gave evidence about the ponding of water seen in Ms Young’s ensuite. He stated that the flow rate from the shower head in the shower is possibly greater than the rate at which the water will drain away into floor waste. He stated that changing the shower head or rose inside the shower may result in an improvement in the performance of the shower.
Mr Cameron also gave evidence at the hearing about the tiles in Ms Young’s bathroom. He stated that the discolouration of the tiles is caused by water “getting in” behind the glazing via the biscuit and that this is not causing any failure of the tiles to perform. Mr Cameron stated that he did not think further investigation of the tiles was warranted.
Are the “falls” in the showers and bathrooms category 1 defects?
I prefer the evidence of Mr Cameron in relation to the operation of the showers and in determining whether the bathroom works are category 1 defects. Mr Dempster did not inspect the bathrooms and relied on measurements and video footage taken by a member of his staff. Mr Surman did inspect the showers in Ms Young’s unit but the Tribunal has previously identified an issue in relation to his evidence about his observations during the operation of the showers.
Mr Cameron also inspected the showers and took measurements within the shower cubicle. The Tribunal found Mr Cameron to be honest in giving his evidence. For example, he conceded at the hearing that he did observe some water to escape the shower enclosure in Ms Young’s ensuite during the inspection.
I accept the evidence of Mr Cameron that the showers in both the ensuite and bathroom are “enclosed” for the purposes of the Australian Building Codes of Australia and that the falls inside the shower are compliant. I am not satisfied that the falls in the showers in the ensuite and bathroom are category 1 defects. I accept that ponding of water in the ensuite and bathroom after several minutes of operation of the showers may be unsatisfactory but I am not satisfied based on the evidence of Mr Cameron that the showers and bathrooms are category 1 defects.
Notwithstanding the evidence before me that indicates the falls in the showers and bathrooms are compliant, I accept the evidence of Mr Cameron that the showers are otherwise functioning as showers. This is consistent with the evidence of Mr Dempster who stated that notwithstanding any non-compliance with the Australian Standard it was possible to have a shower (not compliant) that stills functions as a shower.
Are the tiles in the bathrooms category 1 defects?
Ms Young relies on a report prepared by “TRIM” dated 6 December 2010[16] in relation to an inspection of wall tiling in the bathrooms for another unit housed in the same complex as Ms Young’s unit. Ms Young also relies on a report prepared by “ABSCAN” dated 19 October 2012[17] in relation to an inspection of tiles used in other bathrooms within the complex. Ms Young argues that the same issues relevant to the bathrooms in the other units within her complex relate to her bathrooms.
[16]Exhibit marked “10”.
[17]Exhibit marked “9”.
There is no independent expert evidence before me in relation to the performance of the tiles in Ms Young’s bathrooms to support her contention that the tiles are not fit for purpose and that there is water penetration. I am not satisfied that the tiling in the ensuite and main bathroom is a category 1 defect for the purposes of the QBSA policy. I accept the evidence of Mr Cameron that the tiles in Ms Young’s bathrooms are performing adequately in that they direct water to the bottom of the shower.
I cannot be satisfied based on the photograph alone tendered by Ms Young of the carpet showing alleged water damage that this is evidence of water penetration resulting from the alleged failure of the tiles to provide a water proofing system in the bathroom. I find that any deterioration to the grouting around the tiles would be wear and tear consistent with the evidence given by Mr Dempster that wear and tear would be visible after 2 years.
Is the Explanation for the Delay Satisfactory?
Ms Young contends that the delay in lodging a complaint with the QBSA is attributable in part to the fact that she did not understand that she could get the issue “sorted out”. The other explanation provided by Ms Young at the hearing was that she is a female living alone and therefore did not understand that there was a “problem”. Ms Young became aware that there was a problem with her showers in about July 2009 but stated during cross-examination that she did not “understand the extent of it”.[18] She gave evidence about the operation of her showers after she moved into the unit, stating that she used towels and tried on many occasions to clean the tiles in her bathrooms.
[18]See Exhibit marked “12”, SOR filed by the respondent and attachment marked “SOR-2” complaint.
Ms Young also gave evidence that she became aware of her potential rights to make a complaint with the QBSA after speaking to the caretaker or manager of the unit complex. Ms Young states that she was informed by the caretaker that the tiles used in her bathroom and ensuite had not been glazed. It was around this time that Ms Young was then informed by another unit owner in the same complex about the QBSA complaint procedure.
I am not satisfied that Ms Young has provided a satisfactory explanation for the delay in making a complaint with the QBSA. I accept that Ms Young may have been informed by another unit owner at the complex about the avenue for making a complaint with the QBSA. This does not, however, adequately explain why it took Ms Young approximately 2 years to make her complaint, particularly in circumstances where she has been aware of the issues since July 2009 as stated (by Ms Young) on the QBSA complaint form. I am satisfied that Ms Young has been able to use the showers in the ensuite and bathroom and continues to use the showers. It is therefore reasonable to draw the inference that the showers are functioning adequately as a shower and save for some ponding of water in the ensuite, Ms Young has been able to use the showers in both bathrooms since she purchased the unit in 2007.
Should a Direction to Rectify be Issued to the Builder?
I am not satisfied that a direction to rectify should be issued to the builder. Notwithstanding the findings made by the Tribunal about whether the works are Category 1 defects for the purposes of the QBSA policy there has been a considerable delay by Ms Young in making her complaint to the QBSA. I am not satisfied that a satisfactory explanation for the delay has been provided.
The Tribunal has also considered the fact that there is an issue about who is responsible for the defective work because the builder, since completing the building work, has gone into liquidation. In certain circumstances, such as considerations of public safety, it may be appropriate to direct another person to rectify the defective work. It was determined in Queensland Building Services Authority v O’Brien & Ors in deciding whether defective work should be rectified that consideration should be given to by whom it should be rectified. His Honour Judge McGill stated:
...If for example it was particularly important that a defect be rectified, for reasons which went beyond the interest of the building owner and involved considerations of public safety, and the person responsible for the dangerous state of the works was for some reason not available as a recipient of a direction, it might be a case of finding somebody who would be able to rectify the work and who had some personal responsibility for it. Perhaps in an extreme case a direction could be issued to someone who had no personal responsibility for the defect, but was within the reach of the section.[19]
[19]Queensland Building Services Authority v O’Brien & Ors [2002] QDC 329 at [49].
In the absence of a compelling reason, such as public safety considerations, it is not appropriate to direct another person who is not the builder to rectify the alleged defective work. Glenwood Homes Pty Ltd has gone into liquidation and there is no other person to whom a direction to rectify can be issued. This is also a relevant consideration for the Tribunal on review for the purposes of exercising its discretion under s 72 of the QBSA Act.
Ms Young raises several other issues in support of her application including her entitlement to access the home owners warranty scheme; and her dissatisfaction with the way in which her complaint was managed by the QBSA.
Ms Young contends that in the event that the builder fails to comply with a direction to rectify she would be entitled to access the home owners warranty scheme. Ms Young also contends that she has spent time and money in preparing for the hearing and that she has experienced stress and anxiety. The issues of any stress and inconvenience in relation to the manner in which the complaint was managed by the QBSA and in relation to the preparation of reports relevant to the hearing are not, with respect, relevant considerations that the Tribunal can consider.
The decision before the Tribunal on review is whether a direction to rectify should be issued under s 72 of the QBSA Act. The Tribunal does not have the power (on review) to direct the QBSA to give Ms Young an entitlement to benefit the home owners warranty scheme.
The Tribunal does have the power, standing in the shoes of the QBSA decision maker, to determine whether the discretion under s 72 should be exercised. I am not satisfied based on all of the considerations before me including whether the works are category 1 defects, the fact that the builder has gone into liquidation and there has been a delay in making the complaint, that a direction should be issued. The appropriate order is that the decision of the Queensland Building Services Authority dated 28 November 2012 to not issue a direction to rectify is confirmed.
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