Abbott Builders (Qld) Pty Ltd v Queensland Building and Construction Commission [2025] QCAT 144

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Abbott Builders (Qld) Pty Ltd v Queensland Building and Construction Commission [2025] QCAT 144 PARTIES: ABBOTT BUILDERS (QLD) PTY LTD (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NOS: GAR367-19; GAR499-19; GAR003-20 MATTER TYPE: General administrative review matters DELIVERED ON: 28 April 2025 HEARING DATE: 20 January 2025 HEARD AT: Brisbane DECISION OF: Member Chapple ORDERS: 1. GAR367-19: The Direction to Rectify decision is amended as follows: a. For the conceded items, to omit direction items, DTR 15 and 52. b. For direction item, DTR 4, to read: The installation of the James Hardie soffit is not consistent with the proper usage of the Inex Maxideck decking and the doorways onto the three decks are void of flashings. 2. GAR499-19: The Unsatisfactory Work decision is amended as follows: a. For the conceded items, to omit the references to unsatisfactory rectification work in respect of direction items, DTR 13, 47 and 49. b. To omit the references to unsatisfactory rectification work in respect of direction items, DTR 1, 2, 9, 10, 14, 22, 26, 27, 30, 35, 39, 43 and 45. -- 1 of 30 -- 2 3. GAR499-19: The Unsatisfactory Work decision in respect of direction item, DTR 23 is set aside, and the matter is returned to the QBCC for reconsideration with the direction that the property’s stormwater drainage system be reinspected to ascertain the existence of a second stormwater line at the time of the decision. 4. GAR003-20: The Scope of Works decision is amended as follows: a. For the conceded items, to omit scope of work items, SOW 8, 22, 23, 24 and 25. b. For SOW 3 in respect of direction item, DTR 4, to read: • Install flashing to the openings around the doorways onto the three decks in accordance with Clauses 2.2.2 and 3.5.3.6 of the National Construction Code. • In relation to the three decks: o Remove the James Hardie soffit. o Install perforated steel sheeting on the underside of the decking in accordance with the construction contract. o Apply rust-resistant paint to the steel joists supporting the decking in accordance with the corrosion protection requirements of the National Construction Code. c. To omit SOW 7 in respect of direction item, DTR 14. d. To omit SOW 12 in respect of direction item, DTR 24. 5. GAR003-20: The Scope of Works decision for SOW 5 in respect of direction item, DTR 10 is confirmed. 6. GAR003-20: The Scope of Works decision for SOW 11 in respect of direction item, DTR 23 is set aside, and the matter is returned to the QBCC for reconsideration with the direction that the property’s stormwater drainage system be reassessed to ascertain the existence of a second stormwater line at the time of the decision. -- 2 of 30 -- 3 7. GAR003-20: The Scope of Works decision for SOW 17 in respect of direction item, DTR 39 is confirmed. 8. GAR003-20: The Scope of Works decision for SOW 19 in respect of direction item, DTR 43 is confirmed. CATCHWORDS: GENERAL ADMINISTRATIVE REVIEW – where Tribunal review of QBCC Direction to Rectify, Unsatisfactory Work, and Scope of Works decisions – where review applications heard concurrently Acts Interpretation Act 1954 (Qld), s 14A Queensland Building and Construction Commission Act 1991 (Qld), s 67X(3), s 71A, s 72, s 86(1), Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24 ACN148 877 525 Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 72 Queensland Building and Construction Commission v Groupline Constructions Pty Ltd [2020] QCA 245 Ramke Constructions Pty Ltd v Queensland Building Services Authority (No 2) [2013] QCAT 575 APPEARANCES & REPRESENTATION: Applicant: Mr Tim Elliss, instructed by Robinson Locke Lawyers Respondent: Ms Melanie Hudson, in-house solicitor for the Queensland Building and Construction Commission REASONS FOR DECISION Background [1] On 5 December 2016, the applicant, Abbott Builders (Qld) Pty Ltd (‘Abbott’) entered into a contract for the construction of a new home at a property owned by Mr and Mrs Forrest (‘the homeowner’) and located at 89 Outlook Terrace, Ferny Grove in the State of Queensland (‘the property’). [2] Abbott reached practical completion of the home on 20 June 2018. On that date, the homeowner notified Abbott of a series of defects, and on 15 July 2018 lodged a formal complaint accompanied by a list of defects with the respondent, the Queensland Building and Construction Commission (‘the QBCC’). [3] The QBCC issued Abbott a direction to rectify (‘the DTR’) defective work. In response, Abbott sought to rectify the defects the subject of the DTR. The QBCC then approved a claim by the homeowner under the statutory insurance scheme for those items of work the QBCC considered had not been satisfactorily rectified (‘the USW’). [4] Abbott applied to the Tribunal for the review of three decisions made by the QBCC under the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’). The review applications are as follows, heard together by the Tribunal on 20 and 21 January 2025: -- 3 of 30 -- 4 (a) GAR367-19 Application for review of a decision to give a direction to rectify (‘the DTR decision’). (b) GAR499-19 Application for review of a decision that building work undertaken at the direction of the QBCC was not of a satisfactory standard (‘the USW decision’). (c) GAR003-20 Application for review of a decision about the scope of works to be undertaken under the statutory insurance scheme (‘the SOW decision’). Legislation and policy [5] Building work includes the erection or construction of a building.1 [6] Where the QBCC is of the opinion that building work is defective or incomplete, it may direct the person who carried out the work to rectify the building work within a specified period.2 Defective, in relation to building work, includes faulty or unsatisfactory work.3 To rectify building work means to remedy defective building work or to complete incomplete building work.4 [7] The QBCC Rectification of Building Work Policy further assists in defining defective building work as work that does not comply with the Building Act 1975 (Qld), Building Code of Australia or an applicable Australian Standard, or involves the use of a manufactured product where that product has been used, constructed or installed in a way that does not comply with the product manufacturer’s instructions. [8] In deciding whether to give a direction to rectify, the QBCC may take into consideration all the circumstances it considers are reasonably relevant and, in particular, is not limited to a consideration of the terms of the contract for carrying out the building work.5 The QBCC is not required to give the direction to rectify if it is satisfied that, in the circumstances, it would be unfair to the person to give the direction.6 [9] There is no process in the QBCC Act for making a decision about whether or not a direction to rectify has been complied with. The only reference to such a decision is among the list of reviewable decisions, being “a decision that building work undertaken at the direction of the commission is or is not of a satisfactory standard”.7 [10] Part 5 of the QBCC Act establishes a statutory insurance scheme to provide assistance to consumers of residential construction work for loss associated with work that is defective or incomplete.8 1 QBBC Act sch 2 (definition of ‘building work’). 2 Ibid s 72(2). 3 Ibid sch 2 (definition of ‘defective’). 4 Ibid (definition of ‘rectify’). 5 Ibid s 72(3). 6 Ibid s 72(5). 7 Ibid s 86(1)(f). 8 Ibid s 67X(3). -- 4 of 30 -- 5 [11] There is no process in the QBCC Act for making a decision about the necessary scope of the rectification works. The only reference to such a decision is among the list of reviewable decisions, being “a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work”.9 [12] The purpose of a scope of works decision is to outline a programme of works which is reasonable and necessary to rectify identified defects. It may also extend to consideration of whether the relevant programme of works is a reasonable cost- effective method of rectifying the identified defects. A review of a scope of works decision is limited to asking what rectification works are reasonable and necessary given the nature of the work to be undertaken.10 [13] The cost of performing the works in accordance with the scope of works may be established by the QBCC seeking tenders for the carrying out of the works.11 Where the QBCC makes a payment on a claim under the statutory insurance scheme, it may recover the amount as a debt from the building contractor whose fault gave rise to the claim. [14] Section 86(1) of the QBCC Act identifies the decisions that are reviewable decisions, including: (e) a decision to give a direction to rectify or remedy or not to give the direction; (f) a decision that building work undertaken at the direction of the commission is or is not of a satisfactory standard; (g) a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work; [15] Section 87 of the QBBC Act provides that a person affected by a reviewable decision of the commission may apply, as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) to the Tribunal for a review of the decision. Tribunal’s jurisdiction [16] I am satisfied that the DTR decision, the USW decision, and the SOW decision are reviewable decisions, and the Tribunal has jurisdiction to review each of the decisions and to make certain orders.12 Issues for determination [17] The parties made a concerted effort to narrow the issues in dispute and for determination by the Tribunal. The table below is a précised overview of these issues as at hearing commencement. The parties also produced a ‘Detailed Itemised Overview’, which is too lengthy to reproduce here, however I reference relevant excerpts throughout these reasons. 9 Ibid s 86(1)(g). 10 ACN148 877 525 Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 72. 11 QBCC Act s 71A. 12 QCAT Act s 24. -- 5 of 30 -- 6 DTR ITEM DESCRIPTION DTR USW SOW 1 Apron flashing – upper-level veranda roof 2 Soffit moulding – upper-level veranda 4 Decking substrate and openings to all three decks 3 9 Painting – external corner stops to the dwelling 10 Butt joints to the decks 5 14 Bracing wall gaps – bedroom 2 7 22 Rainwater tank 23 Stormwater system – lines to kerb 11 24 Window flashing – carport/workshop 12 26 Fascia and gutter – upper-level carport 27 Fascia/barge – above office and laundry 30 Main roof sheeting 35 Laundry door, jambs and mouldings 39 Timber floor levels – throughout dwelling 17 43 Timber walls out of plumb – throughout dwelling 19 45 Cavity sliding doors – ensuite and laundry [18] I note the following items have been conceded by the QBCC: (a) The DTR decision in respect of DTR 15 and 52. (b) The USW decision relating to unsatisfactory work in respect of DTR 13, 47 and 49. (c) The SOW decision relating to SOW 8, 22, 23, 24 and 25. Statements of evidence [19] Mr Wayne Steven Abbott is a director of Abbott, and Mr Ron Paterson is a project manager employed by Abbott. [20] Mr John Reeve is a director of Professional Certification Group and a level 2 building certifier retained by Abbott to assess the certification requirements for the construction of the new home at the property. [21] Mr Andrew Stephen Kirby is a senior building inspector employed by the QBCC who was allocated responsibility for assisting in these applications in December 2024. The original investigation was conducted by another building inspector for the QBCC, Mr Robert Murphy, who left the employ of the QBCC in mid-2023. -- 6 of 30 -- 7 [22] In respect of each of the review applications, Abbott relies on the following statements of evidence: GAR367-19: DTR decision (a) Statement of evidence of Wayne Steven Abbott dated 17 April 2023 (‘SOE: DTR Abbott’). (b) Statement of evidence of Ron Paterson dated 17 April 2023 (‘SOE: DTR Paterson 1’). (c) Statement of evidence of Ron Paterson dated 12 March 2024 (‘SOE: DTR Paterson 2’). (d) Statement of evidence of John Reeve 19 April 2024 (‘SOE: DTR Reeve’). GAR499-19: USW decision (e) Statement of evidence of Wayne Steven Abbott dated 17 April 2023 (‘SOE: USW Abbott’). (f) Statement of evidence of Ron Paterson dated 17 April 2023 (‘SOE: USW Paterson’). GAR003-20: SOW decision (g) Statement of evidence of Wayne Steven Abbott dated 17 April 2023 (‘SOE: SOW Abbott’). (h) Statement of evidence of Ron Paterson dated 17 April 2023 (‘SOE: SOW Paterson’). All applications (i) Statement of evidence of Ron Paterson dated 16 January 2025 (‘SOE: ALL Paterson’). [23] In respect of all of the review applications, the QBCC relies on the statement of evidence of Andrew Stephen Kirby dated 10 January 2025 (‘SOE: QBCC Kirby’). Consideration [24] I am assisted by the parties’ submissions as follows: (a) Written Submissions of the Applicant dated 17 January 2025. (b) Commission’s Outline of Submissions dated17 January 2025. (c) Applicant’s Further Submissions on Bedroom 2 Wall dated 31 January 2025. (d) Commission’s Post-Hearing Submissions dated 31 January 2025. -- 7 of 30 -- 8 DTR 4: DTR + SOW 3 decisions [25] The DTR decision described the item 4 defect as follows: The construction detail of the decks, the installation of the decking material and openings to all 3 external decks are defective and not in compliance with the National Construction Code 2016 Volume 2 – Clauses P2.2.2 & 3.5.3.6, in that the openings onto the decks (doorways) are void of flashings, deck substrate (Inex-Maxideck) is allowing moisture to penetrate the decks which has resulted in the deterioration of the building elements. [26] The SOW decision described the item 3 scope of works as follows: • Allow to disassemble all decks, reuse balustrading, joist where applicable. • Remove sliding doors that open onto decks and supply and install a compliant flashing/sub-sill to openings – reinstall sliding doors. • Reinstate/construct decks as per working drawings ensuring compliant stepdown at openings and adequate fall is achieved. • Supply and install Maxideck as per manufacturers recommendations. • Reinstall balustrading. • Paint and make good all affected surfaces. [27] At the outset, I note the QBCC’s post-hearing submissions in relation to this issue. I consider the issue of whether the decks are Class 1a or Class 10a buildings is a threshold issue of fact I am required to determine by reference to the National Construction Code and other relevant publicly available documents, an analysis of which is set out in these reasons. It was open to the QBCC to include in its post- hearing submissions further submissions supporting their claims regarding the building classification of the decks. I do not consider the issue to be a matter of opinion, for example, of Mr Reeve, and therefore do not accept the QBCC has been disadvantaged in any way by not having the opportunity to cross-examine Mr Reeve. I reject the QBCC’s submission that the Tribunal ought to give no weight to Abbott’s submission about the building class of the decks. [28] I summarise Abbott’s evidence as follows: (a) Prior to entering into the construction contract, the homeowner stipulated to Mr Paterson the installation of Inex Maxideck for the decking on all three decks, a product the homeowner had researched for this purpose.13 (b) Inex Maxideck is made up of 2700 mm x 600 mm sheeting of a composite fibro with a woodgrain stain-like finish depending on the chosen paint colour. The sheeting interlocks and an inex bond sealant is used to seal the joints when used in wet areas.14 13 SOE: ALL Paterson, para 4a. 14 Ibid. -- 8 of 30 -- 9 (c) The Maxideck product is intended to be external and to deal with exposure to weather. The manufacturer’s product and installation guides state that the product is water resistant not waterproof. The product has since been withdrawn from the market.15 (d) Abbott subcontracted a carpenter to install the Maxideck product and provided the relevant installation manual to them. The carpenter had not seen or used the product before.16 (e) While on site during the fixing stage of the contract, Mr Paterson received a verbal request from the homeowner that the underside of the deck be sheeted with a 4.5 mm James Hardie soffit, a fibre-reinforced cement sheet painted on- site, to match the office area adjacent to the large front deck, for a more appealing finish than the perforated steel sheeting specified in the specifications. The soffit material did not change the use of the under-croft area. Mr Paterson had no reason to believe the installation of the soffit material would negatively impact the Inex Maxideck.17 (f) The soffit material and installation were a variation, though there was no additional documentation.18 (g) The provision in the specifications for perforated steel sheeting on the underside of the deck meant that the steel joists supporting the deck would not be enclosed and would require rust-resistant paint to comply with the corrosion protection requirements of the National Construction Code. As a result of the homeowner’s requested variation to the soffit material, the steel joists were enclosed and the National Construction Code 2016 – Building Code of Australia (‘the NCC’) requirements did not apply.19 (h) In relation to the QBCC site report noting a slight step down from the finished floor level to deck level (approx. 10-15 mm) when working drawings specify 40 mm, Mr Abbott and Mr Paterson were present when, during inspection, the QBCC inspector did not measure the step down. In Mr Abbott’s presence, Mr Paterson measured the step down at 40 mm. The homeowner has acknowledged a 30-40 mm step down. There is no Australian Standard requirement for a step down, however Mr Abbott and Mr Paterson acknowledge that it is good building practice.20 15 SOE: DTR Paterson 2, para 14. 16 SOE: ALL Paterson, para 4c. 17 Ibid, para 16; SOE: ALL Paterson, paras 4b, 4e. 18 SOE: ALL Paterson, para 4f. 19 SOE: ALL Paterson, paras 12b, 12c. 20 SOE: DTR Abbott, paras 17-20; SOE: DTR Paterson 1, paras 15-18. -- 9 of 30 -- 10 (i) In relation to the DTR defect that the doorways onto the decks are void of flashings, water ingress into the dwelling is not the issue. There has been no water ingress into the dwelling or any such complaint.21 The dwelling is fully sealed and there is a gap between the dwelling and the decking such that there can be no water ingress caused by the absence of flashing on the door. The water issue relates to the soffit beneath the Inex Maxideck, in that it is the recess between the decking and the soffit that is alleged to be accumulating moisture.22 (j) The water damage only relates to the rear deck evidenced by small amounts of mould on the underside of the soffit.23 (k) The use of Maxideck prevents a waterproof membrane from being installed. In accordance with the Australian Standard for waterproofing of external decks, AS 4654.2-2012, a decking material would need to be installed under the Maxideck and waterproofed, however, the fixing of the Maxideck would penetrate the waterproof membrane, thus allowing water to penetrate the enclosed soffit. As the Maxideck is only moisture resistant, the soffit needs to be removed.24 (l) The soffit should be removed in accordance with Mr Reeve’s advice and the steel members should be treated in accordance with the NCC coating to external steel. This would enable the Inex Maxideck product to remain and would eliminate the water into the patio ceiling. This would have achieved the desired outcome without the enormous expense that would be incurred by removing and reinstalling all of the decking.25 [29] I summarise the QBCC’s evidence26 as follows: (a) There are two aspects to DTR 4: waterproofing the three decks (entry, front and back), and flashing the doorways that open onto the decks. (b) Part 2.2 of Volume 2 of the NCC prescribes the damp and weatherproofing requirements applicable to a dwelling, noting the limitation that the requirements do not apply to a Class 10 building except where its construction contributes to the weatherproofing of the Class 1 building. (c) The decks are part of a Class 1 building (the dwelling), the deck surfaces constituted ‘roofs’ because they were fully lined on top with Inex Maxideck boards and underneath with fibre cement sheeting, and they were therefore required to be weatherproof to prevent the penetration of water. (d) The inspection report shows severe water damage to the Inex Maxideck and surrounding building elements including severe rusting of the deck joists, the results of a water test, and extensive mould to the ceiling linings underneath the decks constituting non-compliance with the NCC. 21 SOE: DTR Abbott, paras 15, 16; SOE: DTR Paterson 1, paras 13, 14. 22 Ibid, paras 7, 8. 23 Ibid, para 10a. 24 SOE: DTR Reeve, paras 9, 10. 25 SOE: ALL Paterson, para 9. 26 SOE: QBCC Kirby. -- 10 of 30 -- 11 (e) Clause 3.5.3.6 of the NCC prescribes that openings around external wall openings must be adequately flashed in accordance with the Australian Standard for damp-proof courses and flashings AS/NZS 2904:1995. Clause 3.6.0 of the NCC prescribes that glazing must be installed in accordance with the Australian Standard for windows and external doors in buildings, AS 2047:2014. (f) The inspection identified no flashing installed to the area and the water test confirmed water penetration of the doorways onto the decks constituting non- compliance with the NCC and relevant standard. (g) The Australian Standard for waterproofing of external decks AS 4654.2-2012 does not apply as there is no waterproof membrane installed to the deck, however under Part 2.2 of the NCC a roof and wall (including around window and door openings) must not allow water penetration that could cause undue dampness or deterioration of the building elements. (h) There is a visible gap under the doors onto the deck that allows water penetration. (i) The soffit forms part of the Class 1 dwelling and has evidence of deterioration and therefore does not comply with the NCC. (j) There is no Australian Standard requirement for a step down, however the building approval approved plans show a 40 mm step down on each of the three decks. (k) The sliding doors need to be removed install suitable flashing that is compliant with AS/NZS 2904:1995. (l) SOW 3 is reasonable and necessary. [30] I summarise Abbott’s submissions dated 17 January 2025 as follows: (a) The decking is a separate structure to the dwelling; it was bolted to the outside of the dwelling during the fixing stage when the dwelling had been sealed and closed. There is a gap between the decking and the door entry, and it is not possible to connect any waterproofing. (b) The decking is better characterised as a Class 10 building, being non-habitable buildings of structure. The enclosed structure created by the addition of the soffit to the decking is uninhabitable; it is not intended to be a roof or to provide cover to the area underneath the decking. (c) The water ingress and damage alleged is not to the dwelling itself, it is to the sealed decking structure. There is no evidence of water ingress or damage to the dwelling. (d) The decking does not contribute to the weatherproofing of the dwelling. (e) Insofar as there has been non-compliance with relevant standards, it arises because of design decisions made by the homeowner for which it would not be fair or reasonable to impose liability for rectification on Abbott. -- 11 of 30 -- 12 (f) The design of the decking and its relationship with the building envelope is such that it is not necessary to install flashing in accordance with the NCC and relevant standard: (i) There is no opening in the doorway or to the dwelling that would permit water ingress. (ii) The water testing showed a gap between the decking and the dwelling that allowed water egress for any accumulated water that doesn’t run off due to the step down. (iii) Flashing is not required for a Class 10 building. If the Tribunal determines that the decking is a Class 1 building, there is no need for flashing if the soffit is removed and replaced with perforated steel sheeting. (g) SOW 3 is disproportionate, unreasonable and unnecessary and unlikely to solve the problems arising from water ingress into the decking substrate. [31] The NCC is published in three volumes: Building Code of Australia (‘BCA’) (Volume One and Volume Two) and the Plumbing Code of Australia (Volume Three). Any provision of the BCA may be overridden by or subject to State or Territory legislation. The following references are to parts and clauses contained in Volume Two of the NCC. [32] Clause 1.3.2 classifies Class 1 and Class 10 buildings. Class 1 includes a Class 1a single dwelling being a detached house. Class 10 includes a Class 10a non-habitable building being a private garage, carport, shed, or the like. [33] Clause 1.3.3 provides that each part of a building must be classified separately; and (inter alia) Classes 1a and 10a are separate classifications; and where parts have different purposes, if not more than 10% of the floor area of a Class 1 building is used for a purpose which is a different classification, the classification of Class 1 may apply to the whole building. [34] Functional Statement 2.2.2 of Part 2.2 relating to weatherproofing and dampness provides that a building is to be constructed to provide resistance to moisture from the outside and moisture rising from the ground. However, this does not apply to a Class 10 building except where its construction contributes to the weatherproofing of the Class 1 building. [35] Clause 2.2.2 provides that a roof and external wall (including openings around windows and doors) must prevent the penetration of water that could cause (a) unhealthy or dangerous conditions, or loss of amenity for occupants; and (b) undue dampness or deterioration of building elements. However, this does not apply to a Class 10 building except where its construction contributes to the weatherproofing of the Class 1 building. [36] Clause 3.5.3.6 provides that openings in external wall cladding exposed to the weather must be flashed using materials that comply with AS/NZS 2904, and flashings must be securely fixed at least 25 mm under the cladding and extend over the ends and edges of the framing of the opening [ref: Figure 3.5.3.5]. -- 12 of 30 -- 13 [37] Clause 1.1.1 provides that “habitable room” means a room used for normal domestic activities, and (a) includes a bedroom, living room, lounge room, music room, television room, kitchen, dining room, study, playroom, family room, home theatre and sunroom; but (b) excludes a bathroom, laundry, water closet, pantry, walk-in wardrobe, corridor, hallway, lobby, photographic darkroom, clothes-drying room, and other spaces of a specialised nature occupied neither frequently nor for extended periods. [38] Clause 1.1.1 provides that “external wall” means an outer wall of a building which is not a separating wall. [39] The publicly available Queensland Government Growth Management Queensland Building newsflash 453 issued 16 November 2010 (‘Newsflash 453’) is expressed to provide clarification of the appropriate classification for domestic patios, verandahs, shade structures, decks and similar structures, noting that since newsflashes issued in 1998 and 2002, there have been changes to the Queensland Development Code and the Building Act 1975 (Qld). Relevant excerpts are as follows: …In determining the appropriate classification for a building or structure under the BCA, building certifiers must consider the purpose for which the building or structure is to be used and must apply the most appropriate classification on the basis of a ‘best fit’ approach... …Class 1a buildings have habitable spaces and ancillary non-habitable rooms to support habitation. Class 10a buildings are non-habitable. The term ‘non-habitable’ is not defined by the BCA, although the term ‘habitable room’ is defined… …Dictionary definitions help to establish that open sided domestic patios, verandahs, shade structures, decks or similar structures should not qualify as ‘rooms’, nor do they generally meet the definition of ‘habitable’. Using domestic patios, verandahs, shade structures, decks or similar structures, whether detached or attached to another structure, intermittently for domestic recreational purposes does not change the classification of the building or part to a class 1a building. Where domestic patios, verandahs, shade structures, decks or similar structures are used on an ongoing basis for a ‘habitable’ purpose, they will have changed classification and they must comply with the relevant BCA performance requirements for the new classification. In practical terms, these structures typically do not meet the BCA requirements for class 1a buildings, such as damp and weatherproofing. Therefore, it is generally not appropriate to classify these structures as class 1a buildings under the BCA ‘10% rule’ as they would not normally meet the BCA requirements for a class 1a building. Domestic patios, verandahs, shade structures, decks or similar structures should therefore be classified as class 10a buildings, provided they are not fully enclosed, or provided with opening partitions or doors or windows or sashes or the like that can enclose the area. -- 13 of 30 -- 14 [40] The publicly available Queensland Government Department of Energy and Public Works Building and Plumbing Newsflash 604 dated June 2022 (‘Newsflash 604’) is expressed to clarify the intent of concessions for light-weight class 10 buildings and structures under the Queensland Development Code. The document is relevant to this case insofar as it further informs the nature of Class 10 buildings. Relevant excerpts are as follows: Examples [of a light-weight class 10] include a …timber patio, deck or gazebo. …Typical light-weight class 10s have the appearance of a building or structure that is ancillary to the main building… …The following should not be classified as light-weight class 10s: • Class 10 buildings or structures with roofing that is integral to or a continuation of the main building’s roof…These structures are under the same roofline of the main building i.e. their roofs are a continuation of the roof trusses of the main building. They are often constructed at the same time as the main building e.g. integrated outdoor entertainment rooms, entranceways and garages/carports. • Class 10 buildings or structures that form an integral part of the design of the main building…such as a porch whose floor is connected to the main structure of the house, rather than being attached to the house. …The following can be classified as light-weight class 10s: • …simple decks and gazebos that are attached to, rather than form part of, the main building… [41] The first issue to consider is whether the three decks are Class 1a or Class 10a buildings. I consider that the definitions in Clauses 1.3.2 and 1.3.3 must be informed by and read subject to the contents of Newsflash 453 and 604 set out in these reasons. [42] I accept Abbott’s evidence that the three decks were attached to or bolted on to the dwelling at the fixing stage of construction, that being the stage when internal components and finishes to the dwelling are installed. I note that in respect of complaint 12, Mr Murphy’s initial inspection report dated 19 February 2019 states that “3 x decks have been attached to the dwelling…”. [43] I am satisfied on the evidence before the Tribunal that the floor of each of the three decks is not connected to the dwelling. [44] I am satisfied on the evidence before the Tribunal that the three decks are not under the same roofline of the dwelling and their roofs are not a continuation of the dwelling’s roof. The large upper front deck (also referred to in the plans as the ‘living deck’) has its own roof separate from the roof of the dwelling, and the lower front deck (also referred to in the plans as the ‘entry deck’) sits below the upper deck, however, is much smaller in area and depth, and as such does not have a roof. The small rear deck also does not have a roof. [45] I am satisfied on the evidence before the Tribunal that the three decks are not fully enclosed nor are they fitted with doors and/or windows or the like capable of fully enclosing the decked areas. Rather, each deck is an open-sided space fitted with rails and balustrading. -- 14 of 30 -- 15 [46] I am satisfied there is no evidence before the Tribunal that the three decks are or were intended to be used other than intermittently for domestic recreational purposes. [47] I find that the three decks are not rooms, are not habitable, and are ancillary to the dwelling and on that basis should properly be classified as Class 10a buildings. Clause 1.3.3 provides that each part of the building must be classified separately, and that Classes 1a and 10a are separate classifications. [48] I note the Development Application Notice dated 27 January 2017 issued by Professional Certification Group (of which Mr Reeve is a director) and the Form 21 Final Inspection Certificate dated 20 June 2016 signed by Mr Reeve describe the works as “new construction of dwelling – 2 storey” with the classification Class 1a, and make no reference to the three decks as being part of the certification. I find that the dwelling itself clearly falls within the Class 1a building classification and these documents evidence that position. I do not consider however that these documents provide any evidence of the building classification of the three decks. I further note that in respect of complaint 1, Mr Murphy’s Initial Inspection Report dated 19 February 2019 confirms no certification for any of the decks. [49] The second issue to consider is whether the construction of the three decks, classified as Class 10a buildings, contributes to the weatherproofing of the Class 1a dwelling and is therefore subject to the Clause 2.2.2 weatherproofing and dampness requirements. [50] I note that Newsflash 453 states that “In practical terms, these structures [referring to Class 10a structures] typically do not meet the BCA requirements for Class 1a buildings, such as damp and weatherproofing. Therefore, it is generally not appropriate to classify these structures as Class 1a buildings under the BCA ‘10% rule’ as they would not normally meet the BCA requirements for a Class 1a building.” [51] In the decision of Ramke Construction Pty Ltd v Queensland Building Services Authority (No 2)27 (‘Ramke’), Member Howard considered the weatherproofing requirements in the case of a garage, a Class 10 building. The homeowners’ complaint to the authority claimed that when it rains against the roller door, water runs off the door, onto the slab, into the garage, and ponds against the study wall. The plans indicated that the garage abutted the house wall, with a step up of 100 mm from the garage to the house. The Member found that whatever the fall from the house to the garage was, it was insufficient to stop water from sitting inside. On that basis, the Member accepted that while the garage is not a habitable area, it contributes to the weatherproofing of the house. [52] Mr Murphy’s Amended Reinspection Report dated 2 October 2019 relevantly addressed DTR item 6, which referred to negative falls in the substrate framing on the upper-level deck that resulted in water ponding near the front entry door creating a hazard for the occupants. The reinspection report found that while the flashing had not been installed beneath the door, as directed, sufficient fall had been achieved to the deck to the front entrance door, and water poured on the deck adjacent to the front entry door penetrated the structure and exited to the concrete paving below. I consider that by correcting the fall, Abbott ensured that water would drain away from the front entry door area. 27 [2013] QCAT 575. -- 15 of 30 -- 16 [53] I note there is no other reference in Mr Murphy’s Initial Inspection Report or Amended Reinspection report to water ponding on the decks such as to create a hazard for the occupants of the dwelling. [54] I note there is no other evidence before the Tribunal of water ponding on the decks such as to create a hazard for the occupants of the dwelling nor is there any evidence of water ingress into the dwelling. [55] I note there is variable evidence before the Tribunal regarding the height of the step down from the dwelling to the decks. I am satisfied however that it is reasonable to find that the height of the step down is somewhere between 30 and 40 mm and as such, in contrast to Ramke, is sufficient to stop water ponding and ingress. [56] I find that the construction of the Class 10a decks does not contribute to the weatherproofing of the dwelling and therefore the decks are not subject to the Clause 2.2.2 weatherproofing and dampness requirements. [57] I note the Product Information Sheet for Inex Maxideck describes the product as “moisture resistant and retains its structural integrity when subjected to multiple soak/dry cycles in accordance with clause 8.2.5 of AS/NZ 2908.2 2000 ‘Cellulose- cement products part 2: Flat sheets’”. [58] I note it is not contested that the Inex Maxideck product is water resistant and not waterproof, and that there is no requirement or recommendation in the manufacturer’s installation guide that a waterproof membrane be installed. [59] I note that in respect of complaint 20, Mr Murphy’s Initial Inspection Report dated 19 February 2019 states that: The Inex Maxideck has not been installed in accordance with the manufacturers Installation Guide because the screw fixings have not been predrilled, consequently decking is damaged/split at screw fixings. Screw fixing is incomplete. Evidence of correct application of sealant to the deck joists and correct sealing of joints is not apparent. Excess sealant has not been removed where installed. Screw fixings have been installed closer than 12 mm from the edge at butt joints. [60] I note that complaint 20 resulted in DTR 5, which is not the subject of this review proceeding. [61] I note the Manufacturers Technical Specification for Inex Maxideck sets out a 4-step guide for the installation and coating system. Referencing the Product Information Sheet, I note the Inex Maxideck can be coated to achieve a timber look. The steps involve coating the edges of the product and applying bond to joists and joints prior to fixing and applying further coats within two weeks after fixing. The only reference to sealing is the caution to ensure that all screw heads are sealed with the subsequent coats as Inex Maxideck may absorb moisture and while this will not affect the structural performance of the board, it may result in a small amount of discolouration. [62] I am satisfied that the Inex Maxideck specification provided for sealing only to the extent of the screw heads, and otherwise provided for coating to achieve a timber look. I am satisfied that coating does not mean sealing. -- 16 of 30 -- 17 [63] I note that the construction contract specifications provided for perforated steel sheeting on the underside of the Inex Maxideck decking. It is not contested that the homeowner verbally required that this material be replaced with the 4.5 mm James Hardie soffit, a product the homeowner had researched and decided would meet their requirements. It is noteworthy too that the Inex Maxideck product was also required by the homeowner. [64] I accept Mr Paterson’s evidence regarding the circumstances surrounding the replacement of the perforated steel sheeting with the James Hardie soffit, that he was not familiar with the Inex Maxideck product, and that he had no reason at the time to believe the James Hardie soffit installation would be a problem. [65] I am satisfied on the evidence before the Tribunal that the James Hardie soffit was not an appropriate product for the underside of the decking and that its installation caused moisture from the decking to be trapped in the cavity enclosed by the soffit leading to rust damage to the steel joists supporting the decking and mould damage to the soffit. [66] I am satisfied that if the homeowner had not required the installation of the James Hardie soffit, Abbott would have installed the perforated steel sheeting on the underside of the decking and applied rust-resistant paint to the exposed steel joists in accordance with the construction contract specifications and the corrosion protection requirements of the National Construction Code. [67] It is arguable that Abbott should bear the responsibility for the consequences of the installation of the James Hardie soffit in circumstances where the homeowner specifically required that the steel perforated sheeting specified in the construction contract be replaced with the James Hardie soffit, and where the homeowner had also specifically required the installation of the Inex Maxideck product, the homeowner telling Mr Paterson they had researched the products and decided both would meet their requirements. [68] I note however that Abbott has maintained in response to SOW 3 that the direction should be limited to installing the Inex Maxideck in a way that is consistent with its proper usage; that is, Abbott should have been directed to remove the soffit, replace it with the perforated steel sheeting specified in the construction contract and apply rust-resistant paint to the steel joists in accordance with the corrosion protection requirements of the National Construction Code. [69] The third issue to consider is whether the dwelling is subject to the Clause 2.2.2 weatherproofing and dampness requirements. I have already found that the dwelling is a Class 1a building. I therefore find that the dwelling is subject to the requirements that a roof and external wall (including openings around windows and doors) must prevent penetration of water that could cause (a) unhealthy or dangerous conditions, or loss of amenity for occupants; and (b) undue dampness or deterioration of building elements. [70] I consider that the doorways onto the decks are part of the external wall of the dwelling and that the openings around the doorways are subject to the Clause 3.5.3.6 flashing requirements for openings in external wall cladding exposed to weather. [71] I order that the DTR decision in respect of DTR 4 is amended to read as follows: The installation of the James Hardie soffit is not consistent with the proper usage of the Inex Maxideck decking and the doorways onto the three decks are void of flashings. -- 17 of 30 -- 18 [72] I order that the SOW decision for SOW 3 in respect of DTR 4 is amended to read as follows: • Install flashing to the openings around the doorways onto the three decks in accordance with Clauses 2.2.2 and 3.5.3.6 of the National Construction Code. • In relation to the three decks: o Remove the James Hardie soffit o Install perforated steel sheeting on the underside of the decking in accordance with the construction contract o Apply rust-resistant paint to the steel joists supporting the decking in accordance with the corrosion protection requirements of the National Construction Code. DTR 1, 2, 9, 10, 22, 26, 27, 30, 35, 39, 43 and 45 – USW decision [73] Abbott submits that these rectification items were not completed because there was not sufficient time and the QBCC denied their request for an extension of time. Consequently, Abbott submits, 28 days (the period allowed by the QBCC for the rectification work) is a very short period to undertake very substantial rectification work, and the QBCC’s approach to considering the request for an extension of time was not fair or reasonable. I note the DTR decision was dated 12 August 2019 and required the rectification work to be completed by 11 September 2019. [74] I will deal with the extension of time issue before considering Abbott’s other submissions. The Tribunal has no jurisdiction in these proceedings to review the QBCC’s decision not to grant Abbott an extension of time to complete the rectification works as such a decision is not a reviewable decision under the QBCC Act. [75] Abbott further submits that rectification items were not completed due to sequencing issues (that is, having insufficient time to program the works/tradespeople in the most efficient sequence), access being denied by the homeowner, and strong winds posing a safety risk to the tradespeople engaged to complete the roofing rectification works. [76] Mr Abbott’s and Mr Paterson’s evidence provides detail in support of these submissions, including the steps taken following the issue of the direction to rectify to arrange the necessary trades to attend the property; Metal Line Roofing’s refusal to do the roofing rectification works because of strong winds causing a workplace health and safety issue, and the painting work on the soffit moulding being held up as a consequence; the painters being denied access by the homeowners on the final date for rectification, and Metal Line Roofing being denied access by the homeowners the following day.28 [77] Mr Abbott’s evidence further states that: (a) in relation to DTR 1, 2, 26, 30 and 45, the homeowner prevented the rectification work from being completed within the time stipulated.29 28 SOE: USW Abbott; SOE: USW Paterson; SOE: ALL Paterson. 29 SOE: USW Abbott, paras 17, 23, 29, 38, 46. -- 18 of 30 -- 19 (b) in relation to DTR 1, 26 and 30, the rectification work was subsequently performed, and there has been no subsequent complaint;30 (c) in relation to DTR 2 and 27, all works were performed within the time stipulated other than the painting;31 (d) in relation to DTR 9, 10, 14, 22, 23, 35 and 43, the rectification was compliant and recertified.32 [78] Mr Kirby’s evidence states that: (a) He is not aware of any evidence that the homeowners prevented reasonable access during the DTR period, and the concern was not raised with the QBCC in correspondence at the end of the DTR period.33 (b) He is not aware of any evidence of rectification work being carried out after the DTR period expired and unsatisfactory work items were dealt with by way of an insurance claim.34 (c) The issue of high winds was not raised by Abbott in its request for an extension to comply with the DTR, and the rectification works performed in relation to DTR 1, 26 and 30 were unsatisfactory.35 (d) He does not consider there is any evidence that the rectification works performed in relation to DTR 9, 10, 14, 22, 23, 35 and 43 was compliant and recertified; the reinspection report provides evidence otherwise.36 [79] I note that the roofing issue and related sequencing issue was identified in Abbott’s request for an extension of time, and Abbott in its letter the QBCC on 12 September 2019 advised that the “Roofing company could not attend last week due to high winds (per one of the reasons for requesting extension of time) completing this week and agreed with owners!”. [80] I am satisfied therefore that the QBCC was aware of the high winds being an impediment to the roof rectification works being completed in the time stipulated. [81] I am not satisfied there is any evidence to support Abbott’s claims that in relation to DTR 1, 26 and 30, the rectification work was subsequently performed, and there has been no subsequent complaint. [82] I am not satisfied there is any evidence to support Abbott’s claims that in relation to DTR 9, 10, 14, 22, 23, 35 and 43, the rectification was compliant and recertified. [83] I accept Abbott’s evidence regarding the reasons the rectification work could not be completed in the time stipulated. 30 Ibid, paras 16, 28, 37. 31 Ibid, paras 21, 31. 32 Ibid, paras 51, 52. 33 SOE: QBCC Kirby, para 60. 34 Ibid, para 59. 35 Ibid, para 58. 36 Ibid, para 61. -- 19 of 30 -- 20 [84] Abbott submits that in the circumstances of this case it is manifestly unfair and unreasonable and not in accordance with natural justice to make findings of non- compliance with a direction to rectify. [85] The threshold issue to determine is whether the QBCC, and therefore the Tribunal in conducting merits review, has the power to make a decision that work undertaken at its direction is not of a satisfactory standard where the builder has been unable to complete the work for reasons beyond its control, for example, as in this case, strong or high winds posing a safety risk, consequential impact on sequencing/timing of other work, and the homeowner denying access. In other words, without reference to considerations of fairness or reasonableness. [86] Section 72 of the QBCC Act sets out the QBCC’s powers in relation to directing the rectification of defective or incomplete building work, including taking into account all reasonably relevant circumstances and not being required to give a direction where it would be unfair to do so. In contrast, the Act is silent on the QBCC’s powers in relation to deciding whether work undertaken at its direction is or is not of a satisfactory standard, other than to identify such a decision as a reviewable decision.37 [87] The objects of the QBCC Act include: to regulate the building industry by ensuring the maintenance of proper standards in the industry and achieving a reasonable balance between the interests of building contractors and consumers, and to provide remedies for defective building work.38 [88] Section 14A(1) of the Acts Interpretation Act 1954 (Qld) provides that, in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.39 [89] I consider that the QBCC’s powers in relation to deciding whether work undertaken at its direction is or is not of a satisfactory standard must be exercised having regard to the object of the QBCC Act to achieve a reasonable balance between the interests of building contractors and consumers. [90] Further, it has been observed that a statutory power conferred for public purposes can validly be used only in the right and proper way which Parliament is presumed to have intended when conferring it and that in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms.40 [91] I consider that Abbott, due to circumstances beyond their control, was unable to comply with the direction to rectify. I consider therefore that a reasonable balance between the interests of Abbott and the interests of the homeowner is not achieved where Abbott has not been allowed the opportunity to comply with the direction to rectify despite its best efforts and willingness to do so. I further consider that the consequent decision made by the QBCC that certain work so directed was not of a satisfactory standard could not be regarded as right and proper use of its statutory power. 37 QBCC Act s 86(1)(f). 38 Ibid ss 3(a), 3(b). 39 Acts Interpretation Act 1954 (Qld) s 14A(3) – applies to an Act passed after 30 June 1991. The QBBC Act assented to 17 December 1991. 40 Queensland Building and Construction Commission v Groupline Constructions Pty Ltd [2020] QCA 245, [95]. -- 20 of 30 -- 21 [92] I order that the USW decision is amended to omit the references to unsatisfactory rectification work in relation to DTR 1, 2, 9, 10, 22, 26, 27, 30, 35, 39, 43 and 45. DTR 10 – SOW 5 decision [93] The DTR decision described the item 10 defect as follows: The construction detail surrounding the external corner butt joints to the decks and soffit junctions to steel columns has not been completed with a reasonable standard of workmanship and finish expected of a competent holder of a Trade Contractor’s Licence, in that the FC sheet is evident of mechanical blade gouges, poor fitting soffits, cladding and soffit moulding has resulted in excessive gaps and presents an unacceptable finish. [94] The QBCC’s Statement of Reasons for the decision states that “although the applicant has rectified one external butt joint to the lower-level front deck, there was no attempt at rectification to the two external butt joints to the upper-level deck.” [95] The SOW decision described the item 5 scope of works as follows: • Allow to supply, fit and finish a metal trim to all external corner FC butt joints to the decks and soffit junctions to steel columns (except LH corner of lower level deck). • Paint and make good all affected surfaces. [96] Mr Abbott’s and Mr Paterson’s evidence states that minor paint touch-ups to the external corner were required and that there was no requirement for a metal angle, which is not standard practice.41 [97] Abbott submits that the QBCC has only required the metal trim to be added to the corner butts that were not rectified; the implication therefore is that a properly rectified corner butt does not require metal trim. [98] There is no evidence before the Tribunal of how Abbott rectified the external butt joint to the lower-level front deck in a manner that was satisfactory to the QBCC. [99] There is no evidence before the Tribunal to support Abbott’s claim that the requirement for a metal angle or trim is not standard practice. [100] I find that SOW 5 is reasonable and necessary to rectify the item 10 defect. [101] I order that the SOW decision for SOW 5 in respect of DTR 10 is confirmed. DTR 14 – USW decision [102] The DTR decision described the item 14 defect as follows: The construction detail of the timber framed bracing wall to the rear left hand elevation of Entry Level Bed 2 wall is defective and not in compliance with the BCA/NCC, AS 1684-Residential Timber Framed Construction, QBCC Standards and Tolerances Guide and acceptable building standards, in that the timber frame overhang to the concrete slab is outside allowable tolerances which has resulted in reducing the effectiveness of the bracing wall due to insufficient slab edge distance to frame anchors and creating gaps greater than 3 mm in a bushfire prone area creating a safety hazard for the occupants. 41 SOE: SOW Abbott, para 23; SOE: SOW Paterson, para 21. -- 21 of 30 -- 22 [103] The USW decision stated that the rectification work was unsatisfactory because: • The Applicant has inserted a piece of external grade treated pre-primed pine timber moulding on top of the right-hand side. • There was no attempt at addressing the concerns relating to the embedment of the bracing wall anchors. • Gaps greater than 3 mm are still presenting. [104] The parties grappled with this issue in oral evidence. I considered that it was appropriate to invite the parties to file further written submissions post hearing. [105] The QBCC’s submission states at paragraph 7 that: The key issue concerning this item is whether the bracing wall fixings (that is, the bracing wall anchors) have been properly embedded. Proper embedment and bracing requires fixings to be placed within a required distance from the slab edge, and any overhang of the frame fall within allowable tolerances. [106] I consider that in making this submission the QBCC has so confined the issue for consideration under review. DTR 14 is not the subject of this review proceeding. [107] The QBCC’s submission sets out at paragraph 11 the QBCC’s determinations: (a) The relevant wall is the rear left hand elevation of Bed 2. (b) It is a 1200 mm bracing wall. Consequently, the wall needed to include tie down rods. (c) The plans require the bracing wall to be typically anchored to the slab with 12 mm fixings (that is, fasteners) at 600 mm centres. (d) It is timber framed; the framing being 90 mm thick. (e) Tolerances allow for a maximum overhang, relevantly, of 15 mm under the AS 1684 Residential Timber Framed Construction and QBCC Standards and Tolerances Guide. [108] The QBCC’s submission sets out at paragraph 12 the QBCC’s observations: (a) The timber framing overhung the slab. (b) There was a substantial gap between the bottom of the cladding and the concrete slab. (c) The overhang at the rear left hand corner measured 50 mm. Given the 90 mm thickness of the timber frame, this left 40 mm of the frame width bearing on the concrete slab. Another part of the bracing wall was measured to have an overhang of 35 mm. (d) The Applicant installed a 50 mm x 25 mm RHS42 in an attempt to support the frame. (e) The RHS had not been affixed to support the frame. (f) There was a gap at the top of the RHS. 42 Rectangular hollow section. -- 22 of 30 -- 23 (g) Gaps of more than 3 mm were present. [109] The QBCC’s submission sets out at paragraph 13 the QBCC’s findings: (a) Fasteners must be fixed a sufficient distance from the concrete slab edge. (b) Given the 40 mm bearing on the slab that was presenting, the fasteners could not achieve the minimum slab edge distance, as: (i) The fasteners are required to be 12 mm thick. The dimensions of the fasteners are relevant as they need to be incorporated in addition to the minimum slab edge distance. (ii) Typically, a chemical injected anchor fastener has an optimum slab edge distance of 50 mm. (iii) Alternatively, a mechanically fixed anchor has around a 70 mm requirement from slab edge. [110] The QBCC submits that Abbott implies it had used 12 mm Chemset rods (that is, fixed chemically), the minimum edge distance for which was 35 mm, however it claims there is no direct evidence that this is the case. QBCC further submits that given an invasive inspection of the location of the fastener within the framing was not undertaken (noting that it is not the Commission’s role to do so), it is unknown how far from the slab edge the wall has been fixed to the slab. [111] In relation to the tie down issue, Abbott submits at the following paragraphs that: 19. The Ramset ChemSet Reo 502 Strength Limit State Design Table 1b requires there to be a 35 mm gap between the tie down (the vertical steel rod attaching the base plate to the slab) and the edge of the slab. 20. The QBCC’s position in relation to this issue appears to be an extension of its misunderstanding of the extent of the overhang. The wall bottom plate is 90 mm. Its position appears to be that if the overhang is in fact 50 mm, then that leaves insufficient timber in the base plate connected to the slab for the insertion of the tie down. 21. However, as evidenced by the photographs, the overhang is in fact 30-35 mm. This means there is 55-60 mm of wall plate inside the wall for the insertion of the tie down. It is Mr Paterson’s evidence that the tie down was 35 mm from the edge of the slab and the QBCC has no basis for stating that is incorrect other than by reference to its misplaced belief about the overhang for which the only evidence that is available is inconsistent with its position. [112] I consider the parties’ positions are entirely at odds as to the size of the overhang and the effect of the installation of the RHS on the size of the overhang. It is not necessary for me to make a finding on this issue. This review proceeding requires me to confine my considerations to whether (per the wording of the USW decision) there was no attempt at addressing the concerns relating to the embedment of the bracing wall anchors such as to render Abbott’s rectification work unsatisfactory. [113] The QBCC acknowledges in its submissions that it has not inspected the location of the fastener within the framing. Regardless of whether the QBCC believes this to be its role, the fact remains that an inspection was not undertaken. The QBCC is therefore unable to produce credible evidence to refute Mr Paterson’s evidence that the tie down was located 35 mm from the edge of the slab. -- 23 of 30 -- 24 [114] An inspection was however undertaken by the building certifier, Mr Reeve. I consider therefore it is reasonable in the circumstances to give considerable weight to the Form 21 Final Inspection Certificate issued by Mr Reeve on 20 June 2018, in which he sets out the inspection and certification dates for each building stage, including the framing stage (30 August 2017), and certifies as follows: I certify that on an inspection carried out in accordance with best industry practice, the building work for the above building or structure was inspected and complies with the building approval or certificates of inspection accepted from competent persons at the following stages of the construction. [115] I am not satisfied on the evidence before the Tribunal that Abbott’s rectification work was unsatisfactory. [116] I order that the USW decision is amended to omit the references to unsatisfactory rectification work in relation to DTR 14. DTR 14 – SOW 7 decision [117] The SOW decision described the item 7 scope of works as follows: • Allow to remove existing 50 mm x 25 mm RHS. • Supply and install 50 mm x 75 mm x 10 mm galvanised angle to support frame overhang. • Remove sufficient plaster board to enable tie-down connection to angle. • Patch/repair and make good all affected surfaces. [118] My reasoning set out under the previous heading applies here. [119] I am not satisfied on the evidence before the Tribunal that SOW 7 is reasonable and necessary. [120] I order that the SOW decision for SOW 7 in respect of DTR 14 is amended to omit SOW 7. DTR 23 – USW decision [121] The DTR decision described the item 23 defect as follows: The installation of the stormwater system to the dwelling is not in compliance with the Building Code of Australia – Volume 2 and the building development application requirements, in that 2 outlets to kerb and channel has not been provided which may lead to water backing up through the stormwater system during heavy period of rainfall affecting building components. [122] The USW decision stated that the rectification work was unsatisfactory because: • The applicant has installed a “Y” junction directly behind the kerb. • No attempt at evenly distributing the stormwater into two lines servicing the dwelling, which may lead to water backing up through the stormwater system during heavy periods of rainfall affecting building components. -- 24 of 30 -- 25 [123] Clause 3.1.2.5 (Stormwater drainage) of the National Construction Code provides that: Where a stormwater drainage system is installed, it must comply with the following: (a) The position and manner of discharge of the stormwater drainage system must be to the satisfaction of the appropriate authority. (b) The stormwater drainage system must be designed so that any overflow during heavy rain periods is prevented from flowing back into the building. [124] Mr Paterson’s evidence states that he engaged a plumber to attend to this defective item and provided him with a copy of the direction to rectify; the plumber installed two outlets to kerb and channel.43 [125] Abbott submits that there is no evidence that the (Y junction) design would result in overflow during heavy rain periods flowing back into the building. Abbott states that the stormwater outlet the subject of the direction to rectify relates only to the garage, and that there is a second discharge point that discharges stormwater from the majority of the house into the nearby bushland. [126] I consider that a Y junction design that splits a line just before it discharges at the kerb and channel cannot sensibly satisfy the requirement for two outlets to the kerb and channel such as to ensure that any overflow during heavy rain periods is prevented from flowing back into the building. I consider therefore it is for the most part a single line with the capacity of a single line, and it is reasonable to conclude that the Y junction at the end of the line would make little or no difference to the capacity of the line to prevent flow back in heavy rain periods. [127] I consider that would be the end of the matter, but for Abbott’s submission that there is a second stormwater line from the property that discharges into the nearby bushland. I note the QBCC’s inspection reports make no reference to the second line, and nor does its evidence and submissions contest the existence of the second line. [128] I consider that if, as claimed by Abbott, there was a second stormwater line in existence at the relevant time, the first stormwater line, with or without the Y junction, is satisfactory, in that (per the wording of the USW decision), there was an attempt at evenly distributing the stormwater into two lines servicing the dwelling. [129] I order that the USW decision in respect of DTR 23 is set aside and the matter is returned to the QBCC for reconsideration with the direction that the property’s stormwater drainage system be reinspected to ascertain the existence of a second stormwater line at the time of the decision. 43 SOE: ALL Paterson, para 33. -- 25 of 30 -- 26 DTR 23 – SOW 11 decision [130] The SOW decision described the item 11 scope of works as follows: • Allow to install an additional stormwater line to kerb ensuring even distribution of stormwater to street in both lines. [131] Mr Abbott’s and Mr Paterson’s evidence states that the plumber installed two roadside stormwater outlets, this dwelling was not subjected to an approved hydraulic drawings/design, and works were completed and approved by Brisbane City Council.44 [132] My reasoning set out under the previous heading applies here. [133] I order that the SOW decision for SOW 11 in respect of DTR 23 is set aside and the matter is returned to the QBCC for reconsideration with the direction that the property’s stormwater drainage system be reinspected to ascertain the existence of a second stormwater line at the time of the decision. DTR 24 – SOW 12 decision [134] The DTR decision described the item 24 defect as follows: The installation of the flashing to the window above the carport/workshop has not been completed in compliance with BCA/NCC 2016 – Volume 2 – Part 3.5.3.6, in that the flashing has been terminated to the underside of the aluminium joinery and does not extend over the ends and edges of the framing of the opening which will inevitably lead to water ingress. [135] The SOW decision described the item 12 scope of works as follows: • Allow to remove window and sufficient cladding to enable flashing installation. • Supply and install compliant flashing to window opening. • Reinstall window, cladding and make good all affected surfaces. [136] Mr Abbott’s and Mr Paterson’s evidence states that the window has been installed in accordance with Trend Windows installation instructions with .250 mm dampcourse flashing installed at Trend Windows factory then fastened to wall frame as per window installation. The factory flashing extends .250 mm past each side of each windows reveal. There is no defect and no work required to fix any problem.45 [137] Mt Paterson’s further evidence46 states that: (a) During the roof completion and window installation stage, the flashing to the window above the carport/workshop was installed as part of the roof apron flashing by Metal Line Roofing. 44 SOE: SOW Abbott, para 33; SOE: SOW Paterson, para 31. 45 SOE: SOW Abbott, para 35; SOE: SOW Paterson, para 33. 46 SOE: ALL Paterson, para 34. -- 26 of 30 -- 27 (b) The site supervisor, Mr Carl Bell (during the construction period), oversaw the building works of this stage and reported to me regularly, with a job report occurring once a week. At this stage of the building works, I was informed of the installation of windows to the carport/workshop area of the property. (c) A flashing goes over the roof and is run inside under the windowsill, behind the cladding, prior to the installation of the window. A flashing is a white metal angle that covers any joints to stop water ingress. The wall cladding, which is coloured white as well, goes over the flashing which means you cannot visually observe the flashing beneath which would extend to the end of the cladding junction. (d) Under the window, I say that the single piece of flashing has been bent under the window and the window has been placed on top. (e) As is standard building practice for both myself and the Applicant, window flashing is installed in accordance with AS 3.5.3.6. From the photographs depicted at pages 116 and 117, with an emphasis on page 117, it is not possible to determine from these photographs that the flashings have not been installed in accordance with AS 3.5.3.6. Additionally, and again as is standard building practice used by myself and the Applicant, I can say that the flashing installed under this window is not a separate window flashing as detailed in AS 3.5.3.6 and this is because it was installed as a continuous piece of flashing that ran from the roof to the vertical part of the wall, and then under the window. The standard does not mention that the flashing must be continuous at a wall roof junction. I dispute the observation made by Mr Murphy during the inspection as there was no physical way to ascertain whether there was one continuous piece of flashing or whether it was not in a continuous piece. (f) I observed Mr Murphy conduct his inspection of the window and I was present with him on the carport roof when he did so. The window faces the right-hand side of the property. To reach this window, I had to climb up 3m to reach the top of the carport, and the second level of the house extends approximately 1m from the roof of the carport. The window is located between the top of the carport and on the 1m of the house which extends beyond the roof. I observed Mr Murphy look at the window but did not observe him taking any measurements or conducting any tests or exploratory work around the situation of the window other than to take some photographs. I recall that the observation lasted no longer 3 to 5 minutes. (g) Accordingly, I dispute the validity of the SOW item 12. [138] I consider Abbott’s evidence credible and persuasive. Mr Murphy was not called to give evidence at hearing, and Mr Kirby’s evidence does not credibly refute Mr Paterson’s account. I accept Abbott’s evidence. [139] I order that the SOW decision for SOW 12 in respect DTR 24 is amended to omit SOW 12. -- 27 of 30 -- 28 DTR 39 – SOW 17 decision [140] The DTR decision described the item 39 defect as follows: The installation of the timber floor framing, bearers and joists, to both levels of the dwelling has not been completed to a reasonable standard expected of a competent holder of a trade contractors licence, in that the framing has not been adequately levelled prior to substrate installation which has resulted in affecting the margins to doors, particularly sliding robe doors and creating a loss of amenity for the occupants. [141] The SOW decision described the item 17 scope of works as follows: • Allow to remove skirting boards and floating floor (store floating floor for reinstallation) to the following areas: - Upper level – bed 1, 2, 3, WIR, Office, Entry, Hall, Kitchen & Lounge - Lower level – Bed 4. • Adjust concrete slab, ply underlay (pack, plane, fill, sand) to achieve an even plane on a room by room basis. • Reinstall floating floor. • Supply and install skirting boards. • Paint and make good all affected surfaces. [142] Mr Abbott’s and Mr Paterson’s evidence states that the homeowner advised not to proceed with the repairs, despite trades ready to complete. As such there is no work to fix any claimed defect.47 [143] Abbott has not produced any evidence that the scope of works is not reasonable and necessary. Indeed, their evidence that they had trades ready to complete the work strongly suggests their concurrence with the scope of works. [144] I am satisfied that SOW 17 is reasonable and necessary to rectify the item 39 defect. [145] I order that the SOW decision for SOW 17 in respect of DTR 39 is confirmed. DTR 43 – SOW 19 decision [146] The DTR decision described the item 43 defect as follows: The installation of the timber wall framing to both levels of the dwelling has not been completed to a reasonable standard of workmanship and finish expected of a competent holder of a trade contractors licence and does not comply with the requirements of the QBCC Standards and Tolerances Guide 2016, in that the timber frame deviates from plane/plumb more than 4 mm which has resulted in presenting inconsistent margins, misalignment of doors and creating an unacceptable finish. In addition, the top and bottom edges of the internal doors have not been sealed as per manufacturers recommendations which has resulted in voiding the warranty of the door and may lead to excessive warp. 47 SOE: SOW Abbott, para 47; SOE: SOW Paterson, para 45. -- 28 of 30 -- 29 [147] The QBCC’s Statement of Reasons for the decision states that although the Applicant has attempted rectification surrounding the Bedroom 1 entry door, the walls remain outside allowable tolerances and are up to 14 mm out of plumb. [148] Mr Murphy’s Amended Reinspection Report dated 2 October 2019 in respect of DTR 43 includes photographs of the 14 mm out of plumb measurements. In the absence of any evidence supporting Abbott’s contrary claims, I accept the QBCC’s evidence. [149] The SOW decision described the item 19 scope of works as follows: • Allow to remove door and door frame from the entrance to Bed 1. • Remove plaster linings sufficient to plumb frame. • Supply and install plaster to affected areas. • Reinstall door jambs and door, architrave. • Adjust cupboard doors (main bedroom) to correct and parallel margins. • Paint and make good all affected surfaces. [150] Clause 4.2 of the QBCC Standards & Tolerances Guide 2016 relevantly provides that: Within 6 years and 3 months from the completion of the work, posts and wall frames are defective if they deviate from vertical by more than 4 mm within any 2 metre height and as a result compromises the structural adequacy of the wall or building, allows water penetration into the building or compromises the health and safety of those who use the building. [151] Mr Abbott’s and Mr Paterson’s evidence states that: This item did not require rectification as it was within tolerances. QBCC Standards & Tolerances Clause 4.2 specifically notes a wall is defective if it deviates over 4 mm in 2 metres and as a result compromises the structural adequacy of the wall and allows water penetration into the building and compromises the health and safety of those who use the dwelling. This is not the situation. Note 14.8 of the QBCC handbook notes defective if floor varies 10 mm in a room, 4 mm in 2 metres and such adversely affects the safe use. Here, the item does not affect use. Accordingly, within QBCC standards and tolerances, there is no work required to fix a perceived defect.48 [152] Mr Paterson’s further evidence49 states that: (a) I recall that the timber frame deviates from plane/plumb approximately 8 mm, however, as is noted in the QBCC Standards and Tolerances Guide clause 4.2, I say that because there is no compromise to structural adequacy of the wall, and that further as there is no evidence suggesting that the wall is subject to being compromised to water ingress, then there is no requirement to fix. 48 SOE: SOW Abbott, paras 51-53; SOE: SOW Paterson, paras 49-51. 49 SOE: ALL Paterson, para 42. -- 29 of 30 -- 30 (b) As to the rectification of the sealing of the doors, I arranged for the subcontracting painting trade to attend the property to perform various painting works, and this would include rectification of the sealing of the door to bring into compliance with the manufacturer’s installation recommendation, noting that it is only recommendation. As to this item, not being completed, I repeat paragraphs 17 to 21 of this statement as to the reason why the painting trade could not attend to the rectification works to seal the edges of the doors. [153] I consider that Abbott is effectively arguing that there is no defect. I note however that DTR 43 is not disputed by Abbott and is not the subject of these review proceedings. Issues such as the extent of deviation, consequent structural adequacy of the wall or building, water penetration in the building, and compromises to health and safety are not for my consideration here. [154] I consider that Abbott’s evidence that they had arranged for the painters to seal the door strongly suggests their concurrence with this aspect of the scope of works. [155] In the absence of any credible evidence to the contrary, I find that SOW 19 is reasonable and necessary to rectify the item 43 defect. [156] I order that the SOW decision for SOW 19 in respect of DTR 43 is confirmed. -- 30 of 30 --