Body Corporate for Infinity 1 Community Titles Scheme 45404 v Queensland Building and Construction Commission & Anor [2025] QCAT 54

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Body Corporate for Infinity 1 Community Titles Scheme 45404 v Queensland Building and Construction Commission & Anor [2025] QCAT 54 PARTIES: BODY CORPORATE FOR INFINITY 1 COMMUNITY TITLES SCHEME 45404 (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (first respondent) KARIMBLA CONSTRUCTIONS SERVICES (QLD) PTY LTD (second respondent) APPLICATION NO: GAR327-20 MATTER TYPE: General administrative review matters DELIVERED ON: 3 February 2025 HEARING DATES: 19, 20 September 2024 HEARD AT: Brisbane DECISION OF: Member McVeigh ORDERS: The decision of the Queensland Building and Construction Commission not to direct Karimbla Constructions Services Pty Ltd to rectify is confirmed. Any party that considers the interests of justice require another party to pay all or part of its costs must file its submissions in that regard within 28 days of the date of this decision. If any party makes such submissions, the other parties must file submissions in response within 56 days of the date of this decision. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – general administrative review – where applicant made complaint about alleged defective building work – where Queensland Building and Construction Commission decided not to give a direction to rectify to the builder – where applicant sought internal review of decision – where QBCC confirmed decision – where applicant applied to the Tribunal for external review -- 1 of 29 -- 2 of that decision – where application to review filed within six years and six months after completion of the building work – whether tribunal had jurisdiction to review the decision ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether building work was defective – whether building work complied with 2009 Building Code of Australia, Specification C1.1, Requirement 2.4(a)(iii) – whether the use of the aluminium composite panels as sunshades attached to an exterior wall of a very tall building constituted an undue risk of fire spread via the facade of the building Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 72A, s 86 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 24 Agius v Queensland Building and Construction Commission & Anor [2023] QCATA 145 Body Corporate for Parkside Bulimba CTS46539 v Queensland Building and Construction Commission and De Luca Corporation Pty Ltd [2023] QCAT 139 Clark v Queensland Building and Construction Commission [2024] QCAT 329 Jorg & Anor v Queensland Building and Construction Commission [2021] QCATA 134 McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2013] QSC 57 Owners SP 92450 v JKN Para 1 Pty Ltd [2023] NSWCA 114 Strata Plan 92450 v JKN Para 1 Pty Ltd [2022] NSWSC 958 TAJ (costs) [2023] QCAT 133 Tanna v Queensland Building and Construction Commission [2023] QCATA 81 Taylor Construction Group Pty Ltd v Strata Plan 92888 t/as The Owners Strata Plan 92888 [2021] NSWSC 1315 APPEARANCES & REPRESENTATION: Applicant: S S Monks instructed by Hynes Legal First Respondent: K W Wylie instructed by the Queensland Building and Construction Commission Second Respondent G A Sirtes SC instructed by Meriton corporate counsel -- 2 of 29 -- 3 REASONS FOR DECISION What is this claim about? [1] The Meriton tower is a very tall building in the Brisbane CBD. It was completed in April 2014. It features sunscreens attached to floor slabs. The horizontal sunscreens consist of a polyethylene core encapsulated in aluminium, commonly known as aluminium composite panels (ACPs). If the Meriton tower was constructed today it would not have ACPs attached as sunscreens as use of such material as part of, or attached to, the exterior of a building was essentially prohibited following the Lacrosse building fire in Melbourne in 2014 and the Grenfell tragedy in London 2017. [2] When the Meriton tower was constructed and certified the relevant building code permitted the use of sunscreens constructed, in part, of combustible material (polyethylene is combustible) if they did not constitute an undue risk of fire spread via the facade of the building. In these proceedings the applicant argues that the ACPs constitute an undue risk of fire spread via the facade of the building. [3] This is an application to review a decision of the Queensland Building and Construction Commission (Commission) not to direct the second respondent (contractor) to rectify the ACPs. The applicant (Body Corporate) is a volumetric lot Community Titles Scheme body corporate that controls common property that generally falls between levels 25 to 64 of the Meriton tower. [4] There is a threshold issue regarding whether or not this tribunal can conduct the review, despite the fact it was filed within six years and six months of completion of the building work. The Commission submits the application should be dismissed for lack of utility, regardless of its merits on the facts, as it has decided not to seek leave to give the contractor a direction to rectify regardless of the outcome of the review of its decision. Background [5] The background facts are largely uncontroversial. [6] The application relates to building work carried out by the contractor on the Meriton building at 23 Herschel Street, Brisbane (Meriton tower). It is a tall building: 223 metres in height with 70 storeys (not including basement levels). The ACPs are an architectural feature of the building. They are curved and appear as horizontal stripes around parts of the building. They are attached to the floor slabs of the building to function as sunshades. [7] These ACPs comprise a polyethylene core encapsulated by aluminium. Aluminium is generally considered non-combustible and polyethylene is generally considered combustible. Until the contractor made its closing submissions no issue was raised regarding combustibility of the panels. For reasons addressed in detail below1 I am satisfied that the ACPs are combustible. In summary, this is because: (a) by application of the definition of the word combustible in the 2009 Building Code of Australia (2009 BCA) the ACPs are combustible because they are in part constructed of polyethylene which is a combustible material; 1 Paragraphs [116] to [123] below. -- 3 of 29 -- 4 (b) the certifier proceeded on the basis the ACPs were combustible; (c) the fire engineers engaged by Meriton to advise on possible solutions posed by the presence of the ACPs assumed they were combustible and verified that assumption by commissioning laboratory testing of samples of the ACPs from Meriton tower. That testing showed that ‘the curved horizontal sun screens are constructed from aluminium composite panel with a core material with 95% PE’; (d) additional laboratory tests carried out on samples of the ACPs from Meriton tower showed that the material in the core of the samples ranged between 87% to 92% polyethylene + Ethylene Vinyl-acetate co-polymers; (e) the experts who gave evidence said they were combustible; (f) testing performed by Ignis, under instruction of Meriton, which replicated the ACPs in a test assembly, demonstrated the combustibility of the test assembly, if not the actual panels on the Meriton tower. [8] ACPs had been fixed to building exteriors for many years without an appreciation of the fire risk posed by them. Since the Melbourne Lacrosse building fire in November 2014 and the June 2017 Grenfell building fire tragedy in London, fixing them to building walls has essentially been prohibited. [9] The building was constructed and certified when the 2009 BCA was in effect. Under the 2009 BCA, there was no blanket prohibition against fixing combustible materials, such as ACPs, to buildings. However, the Body Corporate argues that fixing combustible materials such as ACPs to buildings could contravene more specific provisions of the 2009 BCA, including Deemed to Satisfy Specification C1.1 Fire- resisting construction, General Requirement 2.4 (General Requirement 2.4). The Body Corporate argues that the heart of this application for review is its contention that the ACPs (variously called sunshades, sunscreens or sunblinds) affixed to the Meriton tower contravened General Requirement 2.4. [10] Relevant to this application, and in particular to s 72A(4) of the Queensland Building and Construction Commission Act 1991 (QBCC Act), the building work associated with the ACPs was completed on 15 April 2014 when Mr Hofstetter, the private building certifier engaged by the contractor, gave a certificate of classification for the building. [11] Section 71J(1) of the QBCC Act permits a consumer to ask the Commission to give a direction to rectify building work the consumer considers is defective or incomplete. [12] On 23 July 2019, the Commission received a complaint by the Body Corporate alleging that 162 building work complaints set out in a Defects Register produced by Paul Marko from Queensland Building and Fire Services Pty Ltd should be the subject of a direction to rectify. In subsequent correspondence, this register was described as the TASQ report. [13] Defect 138 in the TASQ Report describes the alleged defect as follows: External cladding, sun blinds, acrylic signage and ACP (aluminium composite panels.) panels. These panels are fixed above around and on paths of egress and fire doors with glue and plastic packers. … -- 4 of 29 -- 5 Combustible materials cannot be installed under the National Construction Code (NCC) Volume One, Performance Requirement CP2 requires that a building must have elements which will avoid the spread of fire in a building, in a manner appropriate for that building. This requirement is met, in part, under a Deemed to Satisfy Solution for buildings of Type A and Type B construction by noncombustible external walls (Specification C1.1 Clauses 3.1(b) and 4.1(b)). The body corporate has followed the QLD legislative cladding identification process and the fire engineers AE&D have identified the risks, which will need to be addressed through an holistic approach to the fire safety strategy of the building identifying robustness and weakness's (sic) … The installed cladding does not comply with the requirements of the BCA as a DTS solution, in regard to spec C1.1, 2.4, spec C1.10 and clause 7: The recommendations from the independent fire engineer will need to further look at the stair press (sic) system, the passive fire risks, the bending moment of the slab and the interaction of the curtain wall system, early detection, increased fuel loads and the evacuation times. [14] The Complaint referred to 2009 BCA Deemed to Satisfy Specification C1.1 Fireresisting construction, General Requirement 2.4, which provided (emphasis added): 2.4 Attachments not to impair fire-resistance (a) A combustible material may be used as a finish or lining to a wall or roof, or in a sign, sunscreen or blind, awning, or other attachment to a building element which has the required FRL if— (i) the material is exempted under C1.10 or complies with the fire hazard properties prescribed in— (A) Clause 2 of Specification C1.10; or (B) Clause 2 and 3 of Specification C1.10a; and (ii) it is not located near or directly above a required exit so as to make the exit unusable in a fire; and (iii) it does not otherwise constitute an undue risk of fire spread via the facade of the building. (b) The attachment of a facing or finish, or the installation of ducting or any other service, to a part of a building required to have an FRL must not impair the required FRL of that part. [15] After making the complaint, a replacement defects table was produced, and TASQ defect 138 was renumbered to defect 135 (Defect 135), and provided as follows: External cladding, sun blinds, acrylic signage and ACP (aluminium composite panels) panels. These panels are fixed above around and on paths of egress and fire doors with glue and plastic packers … AE&D Fire Engineers have identified risks to be addressed through the fire safety strategy of the building. Refer TASQ report item 138. -- 5 of 29 -- 6 [16] On 17 June 2020, the Commission completed its investigation of the Body Corporate’s complaint. While it decided to issue Directions to Rectify (DTRs) for some defects, it decided not to give a DTR for Defect 135. [17] On 12 July 2020, the Body Corporate applied to the Commission pursuant to s 86A(1) of the QBCC Act seeking internal review of the Commission’s decision not to give DTRs for several defects, including Defect 135. [18] By letter dated 5 August 2020, the Commission gave notice of its internal review decision made pursuant to s 86C of the QBCC Act (Review Decision). The Review Decision decided, inter alia, to issue a DTR with respect to Defect 135, but responding only to part of the complaint. In particular, the Review Decision provided the following DTR responsive to Defect 135: 81 The installation of the cladding to the ground level fire isolated exits do not comply with Spec C1.10-3 of the BCA 2009 Vol 1 in that the composite panels are flammable resulting in unacceptable health and safety risk to the users and occupants of the building in the event of a fire. Pertains to item 135 of the QBCC complaint form. [19] Put simply, what was required by that DTR was the removal of ACPs at the ground level near the building exit, to comply with Requirement 2.4(a)(ii) set out above. [20] These proceedings commenced on 2 September 2020 when the Body Corporate applied to this tribunal pursuant to 87 of the QBCC Act. That application sought review of: (a) the decision to issue a DTR in relation to only part of Defect 135; and (b) the decision not to issue DTRs with respect to defects 1, 10, 115 and 127. [21] By the time the hearing commenced, as a result of compromise agreements between the Body Corporate and the contractor, only Defect 135 needed to be considered. The Body Corporate contends that an amended DTR should be issued with respect to all horizontal sunshades fixed to the Meriton tower. The Commission and the contractor contend that no such DTR should be issued. Relevant legislation [22] Section 72 of the QBCC Act provides: (1) This section applies if the commission is of the opinion that— (a) building work is defective or incomplete; or … (2) The commission may direct the person who carried out the building work to do the following within the period stated in the direction— (a) for building work that is defective or incomplete—rectify the building work; … (5) The commission is not required to give the direction if the commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction. Example for subsection (5)— -- 6 of 29 -- 7 The commission might decide not to give a direction for the rectification of building work because an owner refuses to allow a building contractor to return to the owner’s home or because an owner’s failure to properly maintain a home has exacerbated the extent of defective building work carried out on the home. [23] Section 72A of the QBCC Act provides: Powers and limitations of directions to rectify or remedy … (4) A direction to rectify or remedy cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the commission, that there is in the circumstances of a particular case sufficient reason for extending the time for giving the direction and extends the time accordingly. [24] Section 86(1) of the QBCC Act provides: Each of the following decisions of the commission under this Act is a reviewable decision … (e) a decision to give a direction to rectify or remedy or not to give the direction. [25] Section 87 of the QBCC Act provides: Application for review A person affected by a reviewable decision of the commission may apply, as provided under the QCAT Act, to the tribunal for a review of the decision. [26] Section 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides: The objects of this Act are … (b) to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick; [27] Section 24 of the QCAT Act provides: (1) In a proceeding for a review of a reviewable decision, the tribunal may: (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate. (2) The tribunal’s decision under subsection (1)(a) or (b) for a reviewable decision -- 7 of 29 -- 8 (a) is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal’s review jurisdiction or an appeal under part 8; and (b) subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect. Building Code of Australia 2009 [28] The 2009 BCA has been superseded, but is the code by reference to which the Meriton tower was designed and certified. [29] The BCA performance requirements require that a building have elements which will, to the degree necessary, avoid the spread of fire to sole occupancy units and public corridors. Avoidance of the spread of fire must be appropriate to: (a) the use of the building; (b) the potential fire intensity; (c) the fire hazard; (d) the number of storeys in the building; (e) proximity of the building to other property; (f) any active fire safety systems installed in the building; (g) fire brigade intervention; (h) the evacuation time.2 [30] There were three ways to comply with the performance requirements prescribed by the 2009 BCA: (a) compliance with deemed to satisfy provisions; or (b) formulating an alternative solution which: (i) complied with the performance requirements; or (ii) was shown to be at least equivalent to the deemed to satisfy provisions; or (c) a combination of (a) and (b).3 [31] Typically, the deemed to satisfy provisions prescribe quantitative standards and alternative solutions require assessment by a competent person. [32] Part C1.0 of the 2009 BCA addresses requirements for deemed to satisfy provisions. Specification C1.1 contains requirements for the fire-resisting construction of buildings. Section 2.4 deals with attachments to buildings. It allows use of a combustible material in a sunscreen if: (a) the material is exempted under C1.10 or complies with the fire hazard properties prescribed in— 2 BCA 2009 Volume 1, Part CP2. 3 Ibid, Part A0. -- 8 of 29 -- 9 (i) Clause 2 of Specification C1.10; or (ii) Clause 2 and 3 of Specification C1.10a; and (b) it is not located near or directly above a required exit so as to make the exit unusable in a fire; and (c) it does not otherwise constitute an undue risk of fire spread via the facade of the building. [33] When applied to a material, the meaning of combustible is determined by AS 1530.1. When applied to construction or part of a building, combustible means constructed wholly or in part of combustible materials.4 [34] AS 1530.1 is the Australian Standard for methods of fire tests on building materials, components and structure.5 Threshold issue [35] As a threshold issue, the Commission submitted that, absent any application by the Commission under section 72A(4) (none being made), the tribunal has no power to direct rectification because more than six years and six months have elapsed since the building work the subject of this application was completed. Counsel for the Body Corporate submitted that the outcome contended for by the Commission was absurd. [36] The Commission’s argument is based on a distinction which it says is to be drawn between a decision to give (or not give) a direction to rectify, which is a reviewable decision,6 and the subsequent giving of the direction to rectify,7 which is not a reviewable decision. If the Commission’s argument is correct, it would leave the Body Corporate without a remedy despite the fact that it made its complaint and filed its application within six years and six months of completion of the building work the subject of this application. [37] For the reasons that follow I have decided that I have jurisdiction to consider this review application filed on 2 September 2020, which is within six years and six months of the completion of the building work on 15 April 2014, which enlivens the power to substitute my decision for the Commission’s decision which was made on 5 August 2020. What follows will be a matter for the Commission. Relevant cases [38] The Commission submitted that I should adopt the reasoning of Member Lumb in Clark v QBCC (Clark).8 In Clark Member Lumb addressed two questions: first, when the building work had been completed, and second, whether the operative event for the purpose of s 72A(4) was the making of the decision under review9 or the date of filing the application to review the decision.10 He decided that the decision under review had been made within six years and six months of completion of the building 4 Ibid, Part A1. 5 Exhibit 2. 6 86(1)(e). 7 QBCC Act s 72A(4). 8 [2024] QCAT 329. 9 In which case the decision was made on the last day of the six year six month period. 10 In which case the tribunal lacked jurisdiction to hear the application. -- 9 of 29 -- 10 work.11 In addressing the second question Member Lumb accepted the contractor’s submission that the case was on all fours with the decision of the appeal tribunal in Jorg v QBCC12 (Jorg).13 [39] In Jorg the decisions under review had been made within six years and six months of completion of the building work (on 11 and 14 December 2018) but the consumers had not filed their review application in the tribunal by 14 January 2019 (six years and six months from completion of the building work). The appeal tribunal confirmed that there could be no extension of time in cases in which the period provided by s 72A(4) had elapsed before the review application had been filed unless the Commission applied for, and was granted, an extension of time. The appeal tribunal rejected the argument that section 24(2)(b) might confer jurisdiction, observing that section 24 relates to the powers given to the tribunal, not to its jurisdiction.14 [40] In Clark Member Lumb relied on the judgment of Dalton J (as her Honour then was) in McNab Constructions Australia Pty Ltd v Queensland Building Services Authority (McNab),15 to draw a distinction between the making of a decision to give a direction to rectify, and the actual giving of the direction to rectify. The issue before Dalton J was the validity of directions to rectify sent by the Commission to the contractor. Her Honour found that the Commission had failed to provide the contractor with the minimum time period to rectify as required by section 72(3) of the QBCC Act. Accordingly, she declared the directions to rectify void. [41] After finding the directions to rectify invalid, Dalton J went on to address the arguments advanced by the parties regarding discretionary matters which might be taken into account before making the declarations sought: the Commission arguing that she should refuse to make the declaration as the hearing of the review application was about to begin in the tribunal and the contractor arguing to the contrary. Her Honour observed: [18] From a review of the statutory provisions it should be plain that the question before me is not the same as the question before QCAT. QCAT has jurisdiction to review the decision of the [Commission] to direct rectification. The decision to direct rectification is necessarily anterior to the giving of a direction for rectification. My decision concerns only the directions to rectify actually given, it does not touch upon the validity of the decision of the [Commission] to direct rectification, or of course the merits of that decision. My decision is only concerned with the notice of that decision given to the [contractor], by way of direction pursuant to s 72(1) of the QBSA Act. [19] For these reasons it seems to me that the existence of the impending merits review in QCAT is no reason why I should not make the declaration sought. Further, having regard to the limited statutory powers of QCAT, I am of the view that QCAT does not have jurisdiction to entertain the application for a declaration. As I say, I cannot see that there is any overlap between the proceeding in the Court and the proceedings in QCAT. 11 [2024] QCAT 329 at [28]. 12 [2021] QCATA 134. 13 [2024] QCAT 329 at [32]. 14 Ibid at [43]. 15 [2013] QSC 57. -- 10 of 29 -- 11 [42] The Commission argues that Senior Member Traves in Agius v QBCC (Agius)16 confirmed the distinction between the making of a decision to give a direction to rectify, and the actual giving of the direction to rectify. The issue before Senior Member Traves was not whether the consumer had made his complaint or filed his application within six years and six months of completion of the building work the subject of his application. He had done both. Senior Member Traves’ decision deals with quite a different factual situation which arose due to an error made by the consumer in filing an application that stated that it was to review ‘Direction to Rectify No 0106161 dated 28 May 2020’, whereas the Commission’s internal review decision was a document dated 26 May 2020. [43] Senior Member Traves took a practical and just approach in concluding that as a decision to give a direction to rectify (or not) was a reviewable decision, the application as filed should be treated as an application to review the decision to give a direction, even if the application referred to the direction to rectify. She observed that whilst the distinction between the decision to give a direction to rectify and the actual notice was ‘entirely appropriate in the circumstances of [McNab]’ the judgment of Dalton J did not ‘go so far as to establish that the giving of the direction was a separate decision’. The Senior Member said17 that the decision to give a direction to rectify was a reviewable decision. The actual giving of the direction was not a reviewable decision but rather was ‘a consequential step’ which might be a separate decision, but if it was (which the Senior Member did not decide) it would not be a reviewable decision although possibly it would be reviewable under the Judicial Review Act 1991 (Qld) or subject to declaratory relief in the Supreme Court. [44] Counsel referred to a number of previous decisions of the tribunal: (a) Tanna v QBCC (Tanna),18 where the application was not filed within six years and six months of completion of the building work as the decision under review had not been made within that period; (b) Body Corporate for Parkside Bulimba CTS46539 v QBCC (Parkside)19 where the time bar operated on 23 October 2021 but the application was not filed until 2 November 2021; and (c) Jorg where the time bar operated on 14 January 2019 but the application was not filed until after that date. Consideration [45] The Body Corporate’s right to make this application is created by section 87 of the QBCC Act. It is common ground that the decision which is the subject of this application was made on 5 August 2020. The six year six month period from the completion of the building work expired on 15 October 2020. It is common ground that the Body Corporate filed this application on 2 September 2020. [46] This case is different from cases in which the tribunal had no jurisdiction because more than six years and six months had passed between completion of the building work and filing the relevant application, the Commission having decided not to apply 16 [2023] QCATA 145. 17 Ibid, at [21] and [25]. 18 [2023] QCATA 81. 19 [2023] QCAT 139. -- 11 of 29 -- 12 for an extension of time under section 72A(4) of the QBCC Act, i.e., Jorg, Tanna and Parkside. Each of those cases can be distinguished on the facts. [47] I am not bound to follow Clark for reasons explained in TAJ (costs).20 Even if I were bound to follow Clark, I am not bound to follow obiter dicta in Clark. In any case, as the facts found in Clark are different from the facts in this case, I need not consider it further. [48] In this case the Body Corporate filed its application for a review of the decision of the Commission within six years and six months of the completion of the building work. Accordingly, the tribunal has jurisdiction. It follows that it has power to set aside the decision and substitute its own decision and that decision is taken to be a decision of the decision-maker for the reviewable decision having effect from when the reviewable decision took effect in 2020 (5 August 2020).21 [49] My finding that the tribunal has jurisdiction to review the decision not to give a direction to rectify in this case is in accordance with the statements of Senior Member Traves in Agius. I respectfully agree with her comment that the judgment of Dalton J in McNab did not ‘go so far as to establish that the giving of the direction was a separate decision’. Whether the actual giving (or not giving) the direction following the review, whether described as an anterior or consequential step, is a separate decision, has not been decided. [50] There is no argument in this case about the validity of a direction to rectify, none having been given. Accordingly, the discretionary matters taken into account by Dalton J in McNab before making the declarations sought do not go to the jurisdiction of the tribunal to hear an application for a review of a procedurally valid decision of the Commission filed within six years and six months of the completion of the building work. [51] What follows this review is a matter for the Commission. It is not my role to advise the Commission as to the exercise of its discretion to make an application under s 72A(4) in circumstances in which an application for review has been made within six years and six months of completion of the building work. However, it would seem surprising that a statutory authority would make a pre-emptive decision not to take the appropriate consequential step in circumstances in which, on review, a decision to give a direction to rectify might be substituted for its decision not to give a direction to rectify. The effect of making such a pre-emptive decision would be that a consumer’s statutory right to apply for a review of the original decision within six years and six months of the completion of the building work would be illusory. Did affixing ACPs constitute an undue risk of fire spread via the facade of the building? The issue [52] The overarching question is whether the building work is defective. The answer to that question requires consideration of whether or not the use of the ACPs constituted an undue risk of fire spread via the facade of the building. If the use of the ACPs constituted an undue risk of fire spread via the facade of the building, the building 20 [2023] QCAT 133. 21 QCAT Act s 24. -- 12 of 29 -- 13 work is defective because it did not comply with 2009 BCA Specification C1.1, Requirement 2.4(a)(iii). [53] It is common ground that the question whether the building work is defective is not determined by the opinion of a building certifier (either at the time or now) as to whether it complied with the Building Code or any other relevant standard. Nor is it determined by whether the use of ACPs would have been regarded as reasonable or accepted industry practice at the time the building was designed or certified. Relevant cases [54] The only administrative review judgement directly on point cited is the judgment of Henry J in Taylor Construction Group Pty Ltd v Strata Plan 92888 t/as The Owners Strata Plan 92888 (Taylor).22 Those proceedings related to the use of Biowood, which is a combustible material made of reconstituted timber and PVC, on two multi-storey residential buildings. [55] In considering the nature of Requirement 2.4(a)(iii) of the 2009 BCA, Her Honour reasoned: [140] The Appeal Panel found that the word “undue” in the context of cl 2.4(a)(iii) means, relevantly, “unwarranted or excessive”. Although the Appellants’ submissions suggested that undue risk connoted “deliberate and significant risk”, at the hearing they accepted that the words “unwarranted and excessive” are not inapposite to describe the nature of the risk as “undue” …. Thus, there is no real dispute that undue risk for the purposes of cl 2.4(a)(iii) means risk of fire spread via the façade of the Buildings that is unwarranted or excessive. The meaning given by the Appeal Panel to “undue” accords with the ordinary English meaning of the word and, in my view, correctly reflects that the word has no unusual or technical meaning, unlike some other terms used in the BCA, such as “Spread of Flame Index”. The Appeal Panel did not err by adopting that meaning. [141] The BCA does not specify the particular matters or precise parameters for determining whether the use of combustible material as an attachment constitutes a risk of fire spread via a building façade that is unwarranted or excessive for the purposes of cl 2.4(a)(iii). In my view, the determination as to whether the risk is undue (or unwarranted or excessive) involves an evaluative task that requires consideration of the circumstances and context in which the Biowood combustible cladding is used as an attachment to the external walls of the Buildings. That includes consideration of the objective of Section C of the BCA of ensuring the safety of people from fire, the BCA requirement that external walls in Type A buildings are to be constructed using non- combustible material, the possibility of fire spread eventuating, and the gravity of the risk from such use. Factors such as the ignitability of the combustible material and the likely rate of fire spread, the location of the material, and relevant safety features of the Buildings would also be germane to consider. 22 [2021] NSWSC 1315. -- 13 of 29 -- 14 [142] To that extent, I accept the Appellants’ submission that the “test” or approach to be applied in assessing whether risk is undue could be described as a multifactorial one. … [144] … the Appeal Panel’s approach clarifies that a material’s compliance with Specification C1.10, such as by AS1530.3 and a low Spread of Flame Index, is not determinative of whether use of that material otherwise constitutes a risk of fire spread that is unwarranted or excessive. … [153] The determination of whether a risk of fire spread is undue is not, in my view, limited to a comparator of risk based on a quantitative assessment of whether there is a high likelihood of fire spread or a low one. The determination also takes into account a qualitative assessment of whether the risk is warranted, in the sense of being acceptable or not, in the circumstances. The evaluative exercise in assessing undue risk inevitably requires the balancing of factors and judgment. The likelihood of fire spread might be identified as low or not fully known based on the quality of the material but the risk assessed as undue because of the gravity of the consequences having regard to the location of the material and the nature of the building. [154] …The words undue risk do not only mean that which is an excessive, great or high risk, but includes the concept of unwarranted, in the sense that a risk may be inappropriate or unjustified in the circumstances even if low. [56] Black J considered whether cladding complied with the Building Code in Strata Plan 92450 v JKN Para 1 Pty Ltd (Strata Plan 92450),23 but in the context of civil proceedings in which the claim was for damages for breach of statutory warranties.24 He was asked to determine separate questions based on an agreed statement of facts. The parties agreed that the cladding did not comply with the deemed to satisfy provisions of the BCA as it was combustible. Black J was not prepared to make findings on the basis that the cladding was combustible absent proof of that as a fact because such a finding would have significant implications for the developer, the builder, the certifier, owners who had sold units and purchasers of those units and existing owners, not all of whom were parties to the proceedings. [57] An appeal against his judgement was allowed in Owners SP 92450 v JKN Para 1 Pty Ltd.25 The appeal did not address the approach of Black J to the issue of combustibility because the respondents conceded that there had been a breach of the statutory warranty. The evidence [58] While it is common ground that the question whether the building work is defective is not determined by the opinion of a building certifier as to whether it complied with the Building Code or any other relevant standard, I include reference to the evidence of the building certifier and of other building certifiers as that evidence provides some 23 [2022] NSWSC 958. 24 In the Home Building Act 1989 (NSW). 25 [2023] NSWCA 114. -- 14 of 29 -- 15 assistance in addressing factors to be taken into account when undertaking the qualitative assessment of whether the risk was acceptable or not in the circumstances. Hofstetter [59] Mr Hofstetter provided an affidavit.26 He is a senior building certifier and the person who certified the Meriton tower. He has been a building certifier since 1994. He was not required for cross-examination. [60] He decided that the sunscreens complied with the deemed to satisfy provisions of Specification C1.1, clause 2.4. He listed the steps that he took under clause 2.4 to conclude that the sunscreens did not impair fire resistance: (a) regarding clause 2.4(a)(i), he did not believe that the panels were combustible because they had a spread of flame index of 0; (b) regarding clause 2.4(a)(ii), he was satisfied that the panels did not pose a risk of making the exits unusable in a fire because the panels had a spread of flame index of 0 and he believed that the panels did not burn; (c) regarding clause 2.4(a)(iii), he thought that the use of aluminium composite panels was acceptable because it was believed that they complied with deemed to satisfy provisions as it was the thinking of the day that the panels did not constitute an undue risk of fire spread via the facade of the building because the test certificates showed they had a spread of flame index of 0. Igoe [61] Mr Igoe provided a report.27 He is a level 1 building certifier. He has 20 years of experience as a private certifier of commercial buildings. He was cross-examined. [62] He reviewed all the relevant documents and concluded: There is no evidence to suggest external cladding… formed part of the Fire Engineering analysis conducted at the time of the design and construction. [63] He observed that prior to the advent of heightened awareness of the combustible nature of cladding on high rise buildings, which he said occurred circa 2014 to 2016, the consideration of external cladding products often did not occur until building projects were significantly advanced which in the majority of cases was when the project was well under construction. [64] Mr Igoe observed that the Building Act requires a certifier to clearly and concisely document and record their decision-making process, which can include relying on certificates from appropriately qualified professionals. He endorsed the approach taken by Mr Hofstetter. In Mr Igoe’s opinion Mr Hofstetter was entitled to rely on the Form 15 and 16 certificates of the installation and design of the façade curtain wall system provided by a registered professional engineer. [65] In cross-examination Mr Igoe confirmed that the characteristics of ACPs have not changed since the time Meriton tower was certified; the change is the state of knowledge in the construction industry. 26 Hearing book tab 14. 27 Ibid, tab 10. -- 15 of 29 -- 16 [66] In cross-examination Mr Igoe said that he would not have regarded the sunscreens as part of the building as they were not fixed to the external wall. A factor he would have taken into account had he been undertaking a risk assessment in 2014 was the vertical separation of approximately 2.5 to 3 metres. [67] In re-examination Mr Igoe explained that he would not have taken the height of the building into account if he had been performing a risk assessment focused on the ACPs as the height of the building would already have been taken into account as part of the assessment of the fire safety system for the tower. Report from AED Fire Pty Ltd (signed by Clark and Halstead) [68] Meriton Group commissioned AED Fire Pty Ltd (AED) to carry out a fire safety analysis and assessment of the ACPs on the Meriton tower in 2019.28 The report was not prepared for these proceedings. A purpose of the report was to agree a strategy to reduce the undue spread of fire. The assessment is based on the 2016 amendment to the BCA, not the version of the BCA which was applicable at the time the building was certified. [69] AED commissioned laboratory testing of samples of the ACP from Meriton tower. That testing showed that ‘the curved horizontal sun screens are constructed from Aluminium Composite Panel with a core material with 95% PE’.29 The report stated that the sunscreens were constructed from combustible aluminium composite panels. [70] AED carried out ad hoc drill testing of the vertical panels which showed that they were constructed of solid aluminium and hence deemed to be non-combustible. [71] The report identifies two options to address the risk of spread of fire: (a) retain the sunscreens, leaving a medium risk of undue spread of fire; alternatively (b) install external drenchers to reduce the risk to low. [72] Neither option is relevant to the question before me. [73] The report identifies the following risk factors present in the building: (a) occupants of a residential building of 79 storeys cannot be expected to be awake or familiar with the building and exits; (b) there is horizontal and vertical connectivity between the combustible cladding elements on all elevations; and (c) there are limited ignition sources near the combustible cladding. [74] The report identifies the following items of particular importance in the fire safety of the building: (a) absence of balconies; (b) the cladding does not extend to the ground; 28 Ibid, tab 12. 29 Ibid, tab 12, p 6. -- 16 of 29 -- 17 (c) the internal sprinkler system will limit the potential for fire spread from the façade to the interior of the building and limit the potential of fire originating within the building spreading to the façade through openings; (d) the combustible sunscreens are not vertically continuous but occur at the edge of each slab; (e) the building has a smoke detection system and occupant warning system that will detect a fire within the building and initiate evacuation; (f) there are few ignition sources; (g) there are no BBQ areas, space heaters or retail spaces close to the cladding. [75] The author of the report had regard to a research paper published in April 2000 which was produced to support the ongoing development of the Building Code of Australia. The authors of the research paper noted that there were relatively few documented cases of vertical fire spread involving combustible claddings, but that the sparse historical record did not mean that there is no significant risk in the use of combustible claddings. The authors of the research paper found no record of external vertical fire spread from an external cladding fire in fully sprinklered buildings. [76] Meriton tower is a fully sprinkler protected building. The author of the report opines that sprinklers are a significant part of good fire safety design and their effectiveness is very important. Drawing on a literature review, the author states that the reliability of a sprinkler system is quoted in the range of 98-99%, but in reality, is more likely to be 95-99%. [77] The author of the report considered the four ignition and fire spread scenarios that had been described by the authors of the research paper: (a) flames projecting from broken windows in the room of fire origin, exposing the façade and windows above, the upper windows break allowing fire to enter the floors above; (b) inadequate fire stopping of the gap between the edge of the floor slab and the exterior walls; (c) heat induced distortion causing fire stopping to be ineffective; and (d) ignition of combustible cladding from an external source. [78] They concluded: (a) in the event of the successful operation of the sprinkler system, fire spread from an internal fire to the ACPs is unlikely; (b) the issue of fire stopping is not a concern; (c) the issue of heat induced distortion is not a potential of fire spread vertically; (d) ignition of combustible cladding from an external source is the most likely source of substantial vertical fire spread. -- 17 of 29 -- 18 First Stratton Report [79] Mr Blair Stratton, a fire engineer, who was called by the Body Corporate, provided a number of reports, the first in September 2021.30 [80] Mr Stratton commissioned scientific analysis of 10 samples from the ACPs from Meriton tower. The material in the core of the samples ranged between 87% to 92% polyethylene + Ethylene Viny-acetate (sic) co-polymers.31 [81] In that report Mr Stratton made comments on, and criticisms of, the report from AED with a particular focus on the accuracy of AED’s analysis of risks associated with the combustible façade’. Relevantly, he criticised: (a) failure to consider the possibility of horizontal fire spread between single occupancy units; (b) failure to consider the possibility of burning droplets or whole panels falling from the building impeding safe evacuation and ability of fire fighters to access the building and equipment; (c) failure to consider the possibility of toxic smoke impacting the evacuation route; (d) failure to consider that external fire brigade intervention is not possible for most of the building; and (e) use of the undefined term ‘medium risk’ in the absence of carrying out any risk assessment. [82] He observed that sprinkler systems are not 100% reliable. He also expressed concern about placing reliance on data about the reliability of sprinkler systems collected in the USA and data obtained from office buildings due to the differences in circumstances between the USA and Australia. [83] In cross-examination he acknowledged that he had not undertaken any analysis to show that the design of the sprinkler system was in any way deficient. His point was simply that there was a 5% chance that it would be unreliable which he thinks must be taken into account in the risk assessment. [84] He opines that risk is the product of both the likelihood of an event occurring and consequences of the event. He is critical of AED’s failure to consider scenarios in which fire would spread to the combustible façade and result in fire spread both horizontally and vertically, blocked exits and difficult fire brigade intervention. First Alexander Report [85] Mr James Alexander, who was called by the contractor, is qualified in both fire safety and building certification. He provided a number of reports, the first in March 2022.32 [86] Mr Alexander directed the comments in his report to the decision of the Commission’s internal reviewer. When addressing the comment that testing should have been done in line with AS 150301, 2, 3 and 4 he said: 30 Ibid, tab 4. 31 Ibid, tab 4, p 115. 32 Ibid, tab 13. -- 18 of 29 -- 19 The certifier is required to source test reports or test data to confirm compliance with relevant provisions of the BCA. In this case, this requires that the installed attachments or cladding comply with the fire hazard properties of Spec C1.10. … AS 15030.1-1994 is the test for combustibility. The certifier was aware that the ACP was combustible and hence this is why the product was assessed under Clause A2.4 of the Spec C1.1… [87] Mr Alexander expressed doubt that if a fire managed to spread from within the building, in what he thought to be a highly unlikely scenario of a sprinkler failure, that it would cause an undue spread of fire up the façade of the building as the exposed surface of the ACPs was aluminium with metallic flashings with no exposed PE edges to enable ignition via the sheet edge. He said that in order to expose the combustible core to flaming ignition it would be necessary to have a constant flame on the surface of the aluminium sheet for a duration to cause delamination of the aluminium. [88] He noted that the curved sunblinds on the northern façade are connected to the protruding slab edge perimeter with a steel bracket arrangement. He noted that the panels are 700 wide and that there is 2.4 metres above a panel to the base of the panel on the slab above. He doubted whether, if a panel ignited, the flame height would be sufficient to ignite a strip 2.4 metres above. [89] In cross-examination he expressed the view that there is no undue risk of fire spread due to the presence of the sunshades. He rejected the proposition that the height of Meriton tower made the building sufficiently unusual given the difficulty it would present in fighting a fire to justify taking a different approach to risk analysis. He observed that the height of a building makes no difference to assessing risk because people can die in a fire in a two-storey building. Second Stratton Report [90] Mr Stratton provided his second report in June 2022.33 Its purpose was to respond to the First Alexander Report. His commentary included his opinion that during an apartment fire where sprinklers fail to operate as designed, fire from one apartment can break the glass and ignite the sunshades. Fire can spread horizontally along the sunshades and break into one or more apartments, in a type of fire spread via the façade. His opinion is that there is an undue risk of fire spread via the façade due to the building being very tall and the resultant difficult evacuation and long complex fire brigade intervention. [91] He inspected the building on 6 May 2022 in order to determine the proximity of the cladding to potential sources of ignition. While he criticised Mr Alexander for failing to provide as built evidence to support his statement that ‘the sun blind arrangement with metallic flashing have no exposed PE edges to enable ignition via the sheet’ he did not record any instance in his observations that there were exposed PE edges. [92] Mr Stratton observed that the curved profile of the sunshades means that in some locations the sunshade is less than approximately 300mm from the external glazing of the apartments. 33 Ibid, tab 5. -- 19 of 29 -- 20 The Joint Report [93] Mr Stratton and Mr Alexander conferred on 4 April 2023 and provided a joint report.34 [94] The experts agree: (a) that NCC BCA Volume 1: Class 2 to Class 9 Buildings, 2009 edition applies; (b) that the sunblinds are aluminium panels containing a polyethylene core; (c) that the sunblinds are attached to, but do not form part of the external wall; (d) that BCA 2009 Specification C1.1 Clause 2.4 permitted combustible attachments to external walls only if the requirements of Clause 2.4 were met. [95] Mr Stratton says that the sunblinds constitute an undue risk of fire spread via the facade of the building, due to: (a) the polyethylene core of the ACPs being combustible; (b) the sunblinds being installed near credible ignition sources including apartment fires and air conditioning fires; (c) the sunblinds spanning horizontally between groups of four or more sole- occupancy units; (d) the possibility fire spread between the sole-occupancy units via the sunblinds; (e) fire spread between the sole-occupancy units being a risk to occupant life safety. [96] Mr Alexander disagrees. In his opinion the only way a judgement can be made as to whether or not the risk of fire spread via the facade of the building was undue, is to examine the industry-wide practice at the time the building was approved by the certifier. In his opinion the assessment must be made as at 2009 when the tower was certified, putting aside the benefit of hindsight. With the benefit of hindsight, it is now known: (a) that there was a significant fire in the Lacrosse building in Melbourne in 2014; (b) BCA 2009 Specification C1.1 Clause 2.4 was amended in 2016 by deleting Clause 2.4(a)(iii), thus prohibiting the use of ACPs as attachments to external walls; (c) that there was a fire in the ACP cladding of the Grenfell Tower in London on 14 June 2017 which caused the deaths of 72 people; (d) audits conducted after the Grenfell tragedy identified thousands of buildings throughout Australia that were approved and constructed using ACPs before the 2016 amendment to the BCA. [97] Mr Stratton and Mr Alexander disagree about the way a certifier would have gone about assessing the risk posed by the sunblinds in 2011. Mr Stratton says a certifier would have consulted a fire engineer who would have had to estimate the likelihood of ignition and the consequence of fire spread. Mr Alexander says that there is no point hypothesising as the ACPs were considered to comply with the deemed to satisfy provisions of the BCA. Mr Stratton goes further and gives an opinion of what a 34 Ibid, tab 2. -- 20 of 29 -- 21 certifier might have done to address the risk, such as recommending the use of a non- combustible material or recommending that the fire engineer prepare an alternative solution. Mr Alexander disagrees. Perhaps, as submitted by counsel for the Body Corporate they were at cross purposes due to the wording of the question put to them. In any case, the question of what a certifier might, or might not, have done is not a matter I need address. [98] Mr Stratton set out issues that could have been addressed in assessing the risk posed by the sunblinds: (a) based on the design documents, such as credible sources of ignition near the sunshades (air conditioning units and apartment fires) and the span of cladding between multiple apartments; (b) requests for fire test data from the manufacturer of the ACP system; (c) difficulty of fire fighters accessing and controlling a facade fire anywhere in the building due to the extreme height of the building; (d) difficulty in evacuating occupants. [99] In re-examination Mr Stratton said that when weighing the risk, he would have addressed various scenarios to estimate possible outcomes in the event of a fire and would have considered whether eliminating the hazard would have been a reasonable course to adopt. Testing undertaken by Ignis Labs [100] In April and May 2023, at the request of Meriton, Ignis Labs Pty Ltd carried out large scale tests to evaluate fire spread risk if an external sprinkler system (drenchers) were to be installed on the Meriton tower. A copy of the report setting out the results of the tests was provided to Mr Alexander who prepared a commentary on it.35 On 5 July 2023 the contractor was given leave to file the report. [101] Ignis replicated the installation in a test assembly. Ignis carried out a bespoke test to identify the risk of fire spread from one level to another including lateral spread. After five minutes of testing by application of a 30MW sandbox burner under the ACP material, the panel warped allowing flames to enter the internal part of the test system. After 10 minutes the panel opened and exposed the core material to the fire. After heating of the core material ignition occurred, contributing to the increase in flame height. The increase in flaming did not reach a point to ignite the panel above. The increased flaming lasted approximately three minutes before it decreased as the fuel load was consumed. There was no lateral fire spread through the panel. Ignis summarised the test result as indicating that when an uncontrolled fire event occurred directly on the panel without automatic fire sprinklers, limited fire spread was likely to occur. [102] Mr Alexander considered that the result of the bespoke test simulating an external ignition source debunked the view that an external fire source, such as a mis-fired firework or external mechanical condenser unit, could cause undue fire spread, either vertically or horizontally. Mr Alexander opined that the reasons the testing demonstrated that undue fire spread did not occur included: 35 Ibid, tab 15. -- 21 of 29 -- 22 (a) that the edges of the sunblinds are enclosed by aluminium angles meaning that the panel edge is not exposed to fire; (b) that the arrangement with end caps and edge angles prevents fire from heating both sides of the ACP; (c) the height of the sunblinds restricts the fuel load thereby limiting the time at which the flame projection is able to reach the panel above; (d) that the fuel load was exhausted meaning that the panel effectively became non- combustible, before fire spread occurred; (e) the absence of the chimney effect because the panels are attached without a cavity. [103] Lateral fire spread did not occur as the fuel load was exhausted. He noted that in order to carry out the test Ignis took steps that were unlikely to occur in reality such as removing the bottom enclosing angle to expose the polyethylene core and bending the sheet away from the frame in order to allow the panel to ignite quickly and applying a heat source in excess of 600 degrees C directly below the panel for 10 minutes. [104] In cross-examination Mr Alexander acknowledged that when polyethylene ignites it drips, but opined that heat from below is needed for a fire to propagate on a building facade. In the case of the Meriton tower (unlike Lacrosse and Grenfell) there is no continuous source of heat due to the fact there is a gap of 2 metres to the slab above. He also noted that the test results showed that the test sample passed the spread classification and the debris flaming classification measurement. Consideration Nature of the evidence [105] This is an administrative review of a decision of the Commission. The tribunal is not bound by the rules of evidence but must observe the rules of natural justice. All parties which might be affected by the outcome were joined to the proceedings and had an opportunity to provide evidence and to cross-examine witnesses. If a party chose not to test the evidence of a witness in cross-examination when it had the opportunity to do so that is a matter for it. The weight to be given to unchallenged evidence is a matter for me. [106] It is common ground that the Body Corporate bears a practical burden of adducing sufficient evidence to satisfy the tribunal that the relief sought should be granted. The Commission and the contractor submitted that the Body Corporate failed to meet the practical burden because Mr Stratton approached the matter as if it was for the contractor or the Commission to satisfy him that the use of ACPs was satisfactory, failing to appreciate that the obligation was on the Body Corporate to demonstrate that it was unsatisfactory. The contractor submitted that the forensic approach adopted by the Body Corporate, through Mr Stratton, in seeking to reverse the evidential onus, created a lacuna that its evidence failed to fill. [107] If these submissions were intended to suggest that Mr Stratton is the arbiter of fact, they are obviously incorrect. While a party might have called an expert, every expert’s role is to assist and advise the tribunal on issues in dispute within the expert’s area of expertise. There is no lacuna in the evidence as I was assisted by evidence from each expert called in the proceedings. -- 22 of 29 -- 23 [108] My task is to consider all the evidence to decide whether the decision of the Commission should be confirmed or set aside. In a review application the tribunal stands in the shoes of the Commission, but makes its decision de novo with the benefit of all the evidence before it. I need not adopt one expert’s approach over another’s. I can reach my conclusion on the basis of all the evidence before me. This requires assessment of all the evidence in order to balance the likelihood of fire spread against the gravity of the consequences of fire spread to decide whether the risk of retaining the ACPs is undue. Characteristics of Meriton tower [109] Meriton tower: (a) is a 79 storey (including basements) residential building occupied by people who cannot be expected to be alert or familiar with the building and exits; (b) has a smoke detection system and occupant warning system that will detect a fire within the building and initiate evacuation; (c) has a sprinkler system which will limit the potential for fire spread from the façade to the interior of the building and limit the potential of fire originating within the building spreading to the façade through openings; (d) has no balconies; (e) has no BBQ areas, space heaters or retail spaces close to the cladding; (f) the cladding does not extend to the ground; and (g) is located two blocks from the Roma Street fire station so fire brigade response times will be relatively short. [110] The sunshades on Meriton tower were intended to meet the performance requirements prescribed by the 2009 BCA by complying with deemed to satisfy provisions. Location of the material [111] The sunshades do not form part of the external wall of the Meriton tower. They are not cladding the building. They are attached to, but not part of the external wall. [112] They are connected to each edge slab perimeter with a steel bracket arrangement. There is an air gap between the sunshades and the external walls of the building. At the closest point, the curved profile of the sunshades brings them less than approximately 300mm from the external glazing of the apartments. [113] The sunshades span horizontally between groups of four or more sole-occupancy units. [114] The sunshades are not vertically continuous. There is vertical separation of 2.4 metres above a panel to the underside of the panel on the slab above. [115] They are not located near BBQ areas, space heaters or retail spaces. Are the ACPs combustible? [116] I am satisfied that the ACPs are combustible for the reasons set out below. [117] At the hearing no witness was challenged on their evidence regarding combustibility of the ACPs. If the ACPs are not combustible they could not present any risk of fire -- 23 of 29 -- 24 spread. The ACPs would be no different to the vertical panels which are made of solid aluminium which is not combustible. [118] In its closing submissions on 25 October 2024 the contractor submitted that the Body Corporate failed to adduce evidence that the ACPs satisfied the definition of ‘a combustible material’ and that this was an evidential obstacle that could not be overcome. This was a surprising submission considering the evidence provided by the contractor and the 2009 BCA definition of combustible. Laboratory testing of samples of the ACP from Meriton tower undertaken at the request of AED showed that the core material of the ACPs was 95% polyethylene. Scientific analysis of 10 samples from the ACPs from Meriton tower commissioned by Mr Stratton showed that the material in the core of the samples ranged between 87% to 92% polyethylene + Ethylene Vinyl-acetate co-polymers. [119] When applied to part of a building, the BCA defines combustible to mean constructed wholly, or in part, of combustible materials. The ACPs are part of a building. They are constructed of non-combustible aluminium and combustible polyethylene. [120] It was the evidence of Mr Alexander, the expert relied on by the contractor, that the certifier was aware that the ACPs were combustible and that was the reason he assessed the ACPs under Clause A2.4 of Spec C1 of 2009 BCA. It is also consistent with Mr Stratton’s unchallenged opinion based on his experience as a fire engineer. [121] If there was any doubt about the combustibility of the ACPs, it was dispelled by the testing performed by Ignis, under instruction of Meriton, which replicated the installation in a test assembly, which demonstrated the combustibility of the test assembly, if not the actual panels on the Meriton tower. [122] I note that the contractor did not seek to review the Commission’s direction to rectify the cladding to the ground level fire isolated exits. That direction was given on the basis that ‘the composite panels are flammable’. [123] These proceedings are quite different from Strata Plan 92450. This is an administrative review, not a civil proceeding. In these proceedings all affected parties are represented and had the opportunity to make their case and challenge the witnesses. The core of the ACPs has been tested and is 87% to 92% polyethylene + Ethylene Vinyl-acetate co-polymers whereas the core of the cladding in the civil proceedings was agreed to be between 35% and 40% polyethylene. Fire safety features [124] All the experts agree that the sprinkler system has a significant part to play in ensuring safety of occupants of the building, regardless of the source of the fire. They also agree that sprinkler systems are not 100% reliable. Even if the sprinkler systems were 100% reliable it would not be possible to say that the safety of the occupants would be assured in the event of a fire. The authors of the AED report estimate the reliability of the sprinkler system between 95% and 99%. As Mr Stratton said, the chance that the sprinkler system might not operate is a factor to be taken into account in any risk assessment. [125] I assume that the fact that the sprinkler system cannot ever be considered 100% reliable was taken into account when the fire engineers certified the Meriton tower for occupation. -- 24 of 29 -- 25 [126] The fact that the exposed surfaces of the ACPs are aluminium with metallic flashings and that there is no exposed polyethylene is a feature that is relevant. Possibility of fire spread [127] There are two sources of potential fire spread to be considered: internal and external ignition. I accept AED’s opinion that fire spread from an internal fire to the sunshades is unlikely in the event of the successful operation of the sprinkler system and hence that ignition from an external source is the most likely source of vertical fire spread. However, I also accept Mr Stratton’s opinion that any risk assessment should include the possibility of an internal fire breaking the glass and crossing the balcony to reach the sunshades. [128] I adopt Mr Alexander’s list of characteristics of the building that minimise the risk of fire spread: (a) the height of the ACPs limits the polyethylene fire load; (b) the large open air gap between the ACPs prevents fire spread; (c) the box section arrangement of the ACPs with enclosed edges limits the ability to ignite an ACP; and (d) the fact the ACPs are attachments, not cladding, means that a cavity is not present to enable a chimney effect to occur. [129] I also accept Mr Alexander’s opinion that the Ignis testing demonstrated no lateral fire spread and no ignition of the panel above the test panel because: (a) the edges of the sunblinds are enclosed by aluminium angles meaning that the panel edge is not exposed to fire; (b) the arrangement with end caps and edge angles prevented fire from heating both sides of the ACP; (c) the height of the sun blinds restricted the fuel load thereby limiting the time at which the flame projection was able to reach the panel above; (d) the fuel load was exhausted meaning that the panel effectively became non- combustible, before fire spread occurred; (e) the absence of the chimney effect because the panels are attached without a cavity. [130] I accept Mr Alexander’s opinion that fire is unlikely to spread from drips from above as drips would not generate sufficient heat on the top of the panel below. [131] Doing the best I can on the evidence before me, I have concluded that in order for an internal fire to spread to a sunshade all the following would need to occur: (a) the sprinkler system would have to fail (noting there is only a 5% chance this would happen); and (b) the glass would need to break; and (c) the fire would have to cross the slab to a sunshade, (noting that the closest point is 30cm); and -- 25 of 29 -- 26 (d) the aluminium angle or edge cap of the sunshade would have to have been damaged with the consequence that the polyethylene core was no longer fully encased by the aluminium; and (e) the polyethylene core would need to ignite. [132] In order for an external fire to ignite a sunshade the following would need to occur: (a) there would have to be an external source of ignition; and (b) the aluminium angle or edge cap of the sunshade would have to have been damaged with the consequence that the polyethylene core was no longer fully encased by the aluminium; and (c) the polyethylene core would need to ignite. [133] Whether the source of ignition was internal or external, the possibility of the fire spreading horizontally or from one level to another is unlikely as demonstrated by the Ignis testing which showed that the polyethylene fuel load will be consumed before fire spread occurred. [134] The possibility that a fire would spread is further reduced due to the location of the sunshades at the slab edge, rather than as part of the external wall, which means there will be no chimney effect. An ‘undue risk’? [135] The 2009 BCA does not define ‘undue risk’. There is no unusual or technical meaning of the word ‘undue’. The 2009 BCA does not require that there be no risk. The 2009 BCA performance requirements require that a building have elements which will, to the degree necessary, avoid the spread of fire to sole occupancy units and public corridors. It goes without saying that some measure of risk must be acceptable. [136] There is no evidence that it was common practice in the industry to undertake a qualitative assessment of whether the attachment of ACPs as sunshades posed an undue risk of fire spread via the facade of the building. It appears that the commonly (but not universally) held industry view that ACPs complied with the deemed to satisfy provisions of the BCA resulted in a common practice of not undertaking any qualitative assessment of the risk. [137] Industry-wide practice at the time the building was approved by the certifier has no role to play in assessing the risk of fire spread via the facade of the building. It seems that the certifier in this case adopted a common practice in the industry, certainly a practice endorsed by Mr Igoe and Mr Alexander, of reliance on certificates provided by suitably qualified professionals. It may be that Mr Hofstetter and others in the industry did not consider the likely rate of fire spread, or the relevant safety features of the Meriton tower, or the gravity of the consequences having regard to the nature of the building because they believed that the panels would not burn. [138] I note that Mr Stratton did not follow the practice of others in the industry. In his opinion a qualitative assessment of the risk was required in order to comply with General Requirement 2.4(iii) of the 2009 BCA. He is correct. [139] Risk assessment requires a multifactorial approach. It is not based solely on likelihood of fire spread, although that forms part of the consideration. The consequences of fire -- 26 of 29 -- 27 spread, in particular potential injury or loss of life of the occupants of the tower, must be weighed in coming to a conclusion as to whether the risk is warranted. [140] In considering whether there was an undue risk of fire spread I adopted the multi- factorial test outlined by Henry J. I considered the circumstances and context in which the ACPs were used. Factors considered included: (a) the objective of Section C of the 2009 BCA to ensure safety of people from fire; (b) location of the panels; (c) fire safety features of the building; (d) ignitability of the ACPs; (e) the possibility of fire spread eventuating; and (f) gravity of the risk. [141] I am satisfied on the basis of the scenarios set out above that while it cannot be said that there is no risk of fire spread, it can be said that the risk of fire spread via the façade is not undue. Gravity of the risk [142] In reaching this conclusion I have not disregarded Mr Statton’s concerns about the gravity of a fire in the Meriton tower. If there was a fire in the Meriton tower lives might be lost. The fact that there are 70 storeys above ground occupied by many residents in single occupancy units increases the number of potential casualties. However, those are facts that pertain whether or not there are ACPs attached to the building. I am not satisfied that the presence of the sunshades unduly increases the risk otherwise facing the occupants of a very tall residential tower in the event of a fire. Would it be unfair to give the contractor a direction to rectify? [143] If I am wrong and a direction to rectify should be given, I address the discretionary considerations under section 72(5) of the QBCC Act; i.e. whether it would be unfair, in the circumstances to give the contractor a direction to rectify. Cost [144] The Commission argues that the tribunal should give greater scrutiny than might otherwise be the case to the exercise of the discretion given that the rectification costs are substantial. [145] I accept the contractor’s submission that the replacement of the sunshades over a major proportion of the floors of this building will impose a substantial cost and, undoubtedly, a far greater cost now than at the time the building was built. The only evidence of the cost of rectification came from a cost estimate prepared by Sedgwick Quantity Surveyors dated 17 August 2020 which estimated the cost of replacing the cladding to be $3,787,167 plus GST.36 No doubt the cost would be even greater more than four years after that estimate was given. 36 Ibid, tab 4, p 73. -- 27 of 29 -- 28 [146] While the examples of circumstances in which it would be unfair to give a direction are just that, nonetheless cost of rectification is not one of the examples given in section 72(5). There is no logical reason it would be. None of the parties referred to any cases in which the cost of rectification was considered to be an indicium of unfairness. [147] Had drenchers been installed, as recommended by AED, it might have been unfair to direct rectification. However, that is a moot point. Prejudice to the contractor [148] The contractor submits that it will suffer ‘enormous prejudice’ caused by the Body Corporate’s dilatory conduct of this claim. It submits that it has effectively been prevented from seeking contribution for the substantial costs of rectification from other parties that were inevitably involved in the series of decisions giving rise to the ACP’s being installed as sunshades on this building. [149] The builder has always known that there were ACPs on the building. If it did not know before it received the AED report in May 2019, it certainly knew then, that the ACPs were combustible. The Body Corporate complained to the builder by letter dated 12 June 2019.37 Had the contractor wished to seek contribution from other parties it could have filed proceedings in the Supreme Court making claims against the other parties that it thought shared responsibility for the installation of the ACPs on the building. The forensic choices made by the contractor are not a factor that should be taken into account in considering whether it would be unfair, in the circumstances, to give the contractor a direction to rectify. Fairness generally [150] I cannot accept the Commission’s submission that it would not be fair to give a direction because when the work was carried out construction using ACP cladding was common-place and considered acceptable. No matter how commonplace it might have been, if the work did not comply with all the requirements of General Requirement 2.4 of the 2009 BCA, not just some of them, the building work was defective. [151] As this is an administrative review, not a civil proceeding against the Registered Professional Engineer Queensland who provided a Form 15 Compliance Certificate for building design, or against the certifier, the fact that no allegation of negligence or malfeasance was raised against either of them by the contractor is irrelevant. [152] Changes made to the 2009 BCA in response to knowledge about the risk of ACP fire following fires in Melbourne and London does not tend toward a conclusion that the 2009 BCA was insufficient and inadequate. General Requirement 2.4 was clear. It included both objective and subjective considerations. Failure to consider the risk of fire spread as required by General Requirement 2.4(iii) is not a reason to exercise the discretion under section 72(5) of the QBCC Act. Costs [153] In this tribunal, unlike court proceedings, each party usually bears its own costs.38 Provision will be made in the orders for any party that considers the interests of justice 37 Ibid, tab 3, p 30. 38 QCAT Act s 100. -- 28 of 29 -- 29 require another party to pay all or a stated part of its costs to seek an order in that regard. [154] The recent judgment of the court of appeal in Health Ombudsman v du Toit39 provides some guidance on the proper construction of ss 100 and 102 of the QCAT Act. 39 [2024] QCA 235. -- 29 of 29 --