Cooper v Queensland Building and Construction Commission [2024] QCAT 450

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cooper v Queensland Building and Construction Commission [2024] QCAT 450 PARTIES: GRAHAM COOPER (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR256-23 MATTER TYPE: General administrative review matters DELIVERED ON: 16 September 2024 HEARING DATE: 20 May 2024 HEARD AT: Brisbane DECISION OF: Member Bertelsen ORDERS: The review application is dismissed. The Queensland Building and Construction Commission decision of 20 March 2023 is affirmed. CATCHWORDS: PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE BUILDING WORK – QBCC policy on rectification referencing National Construction Code, QBCC Standards and Tolerances Guide and manufacturers installation guide – whether decision not to issue a direction to rectify fair and reasonable. Queensland Building and Construction Commission Act 1991 (Qld), s 71, s 71J, s 72, s 86, s 87 Queensland Building and Construction Commission Standards and Tolerances Guide National Construction Code Australian Standard APPEARANCES & REPRESENTATION: Applicant: Graham Cooper Respondent: Mr S Seefeld of Counsel instructed by Holding Redlich -- 1 of 6 -- 2 REASONS FOR DECISION [1] By application filed 31 March 2023 at Brisbane the applicant Graham Cooper seeks review of the Queensland Building and Construction Commission’s (‘QBCC’) decision of 20 March 2023 not to issue a direction to rectify in respect of the installation of an assertedly malfunctioning/incorrectly installed external perimeter termite management system at 10 Hollyhock Crescent Noosa (‘the site’) in 2016. Background and Evidence [2] On 11 April 2016 Graham and Angie Cooper as homeowners entered into a construction contract with Grant McDonald Homes Pty Ltd (‘McDonald’) (‘the builder’) for the construction of a lowset on slab dwelling at 10 Hollyhock Crescent Noosa. The contract provided for “termite pest control Trithor termite to perimeter and penetrations”. Construction reached a stage of practical completion on 28 October 2016. In that month landscaping was performed in and around the dwelling. The Coopers took up residence in November 2016. During construction McDonald’s subcontractor Pest Worx installed an external Termguard termite management system in lieu of the Trithor system originally proposed. [3] A termite protection notice dated 7 July 2016 was attached to the power box although Mr Cooper stated two photos sent to him by Mr McDonald on 11 March 2020 and apparently taken on the 15 July 2016 depicting exposed Termguard reticulation pipes indicated the notice had been issued prior to installation completion. The same day by return email Mr Cooper asked Mr McDonald what material was used to cover the pipes. Mr McDonald replied he was confident work was done to standard as evidenced by an enclosed Form 16 Inspection Certificate signed by Mr Lavelle (of Pest Worx) and dated 7 July 2016. [4] On 13 March 2020 Mr Cooper forwarded the two photos provided by Mr McDonald to Pest Worx enquiring as to what material was used to cover the pipes. The same day Mr Lavelle of Pest Worx replied stating “the builder covered the system”. Mr Cooper contacted Termguard direct. That entity, he said, confirmed that it was mandatory for Termguard reticulation pipes installed in a trench to be covered with sandy loam. On 2 April 2020 Mr Cooper filed a complaint with the QBCC stating his concerns that the termite management system had not been installed with suitable sandy loam cover. [5] On 29 June 2020 the QBCC inspector Mr Smallwood attended the site noting completed landscaping consisting of a concrete paver covering the reticulation line with an artificial grass covering. At his point of measurement, he could not confirm the depth of loam below the reticulation line which was 200 to 250 millimetres below the control joint (the exterior render horizontal joint line designed to relieve stress due to minor shrinkage or expansion in the render sitting proud of the ground level). He further noted the finished ground level was approximately 50 to 75 millimetres below the control joint suggesting the reticulation line had suitable cover (but to be confirmed by way of invasive inspection). He concluded that due to landscaping being undertaken by others there was insufficient evidence of defective building work. The QBCC concluded was that it was unable to provide any further assistance with resolution of the issue. [6] On about 1 July 2020 Mr Smallwood prepared an inspection report (the first inspection report) advising there was insufficient evidence of defective building work which was emailed to Mr Cooper on 8 October 2020. Mr Cooper did not seek a review of that decision. On 22 August 2022 Mr Cooper filed another complaint with the -- 2 of 6 -- 3 QBCC stating that the termite management system did not conform to the National Construction Code (‘NCC’) because the reticulation pipes were not in a trench covered with sandy loam and then covered with a layer of concrete. On 14 February 2023 QBCC inspector Mr Westbrook attended site accompanied by Mr Cooper, the builder, and a representative of Pest Worx. [7] On 4 March 2023 Mr Westbrook prepared his inspection report (the second inspection report). He said for the purpose of issuing a direction to rectify defective building work defective meant that which was faulty or unsatisfactory and that there were two ways of complying with the NCC, a deemed to satisfy solution and a performance solution. A reticulation (pipe) system when issued with a Code Mark Australia – Certificate of Conformity and constructed in accordance with manufacturer’s instructions complies with the NCC by way of a performance solution. While Termguard instructions indicated reticulation pipes ought to be covered with sandy loam soil there was no requirement that they be covered with a concrete layer. However concrete/pavers had been installed over parts of the Termguard management system. [8] At time of inspection Mr Cooper had removed some of the landscaping concrete/pavers over the reticulation pipes to expose the system below. He provided photos of material he said he excavated from an area between the reticulation pipes and the concrete/pavers. This material was non-conforming soil as it appeared to be a mixture of soils including clay soil not fully sandy loam. But the material depicted in the photo was not available for inspection. Mr Westbrook’s own inspection of the soil above the reticulation system on either side of the area exposed by Mr Cooper revealed sandy loam. On the left side there was soil mixed with sandy loam and on the right- side sandy loam around the system. When compared to a sample of sandy loam provided by Mr Cooper from Doonan Sand and Gravel such sandy loam was consistent with the sample provided even though installed in 2016 and was consistent with Termguard’s instructions. Mr Westbrook concluded the inspection did not identify any defective works, that the reticulation system appeared to be covered with sandy loam soil and that construction was otherwise in accordance with manufacturer’s instructions. He added he was unable to assess the content of Mr Cooper’s excavated sample because that sample had since been disposed of by Mr Cooper. Even if the sample was available, he would have been unable to determine if it was part of original installation or subsequent landscaping works. [9] Mr Westbrook considered there was insufficient evidence to determine that the Termguard termite management system installed by Pest Worx amounted to defective building work prior to landscaping over the top of that system. There was sandy loam present beside the area exposed by Mr Cooper such sandy loam being consistent with Mr Cooper’s sandy loam sample. The system was being properly serviced. There was no evidence of termite activity prior or discovered according to the latest professional three yearly inspection by Pest Control Australia (the entity that took over in 2019 from Termguard after the first inspection after installation) carried out on 21 October 2022. On that date Pest Control Australia applied 575 litres of Biflex Aqua to the Termguard system at a rate of 60 pounds per square inch to the full 80 metre perimeter system. Mr Westbrook said in order to have applied that quantity of liquid at that pressure the resistance provided by the reticulation system and by extension the soil around the system would have been within the expected range from Pest Control Australia. For instance, if the system had been compromised and there was insufficient external pressure the liquid flow rate would have been faster than -- 3 of 6 -- 4 anticipated, and, conversely, if the pressure applied to the system by the soil was greater than expected, then the flow rate would have been reduced and it was unlikely the system would have accepted that quantity of Biflex. The certificate of termite inspection dated 21 October 2022 furnished by Pest Control Australia recommended replenishment in three years’ time. In terms of the NCC a performance solution (alternative solution) was in place. [10] On 20 March 2023 Mr Westbrook notified McDonald and Mr Cooper that the QBCC had determined there to be no defective building work. [11] In the grounds of review attached to his review application filed 31 March 2023 Mr Cooper stated that Mr Westbrook failed to consider the change from the contract nominated termite perimeter protection system Trithor (a no ongoing maintenance cost system) to Termguard (a system requiring chemical refill every three years). That was at the time and remains, since Mr Cooper became aware of the installation of the Termguard system, a contractual issue between Mr Cooper and McDonald and is not relevant for the purposes of Mr Westbrook’s inspection. [12] Mr Cooper asserted conflicting statements between McDonald as builder and Pest Worx as Termguard installer with each saying the other covered the reticulation pipes with sandy loam in 2016. He said Mr Westbrook did not pursue these conflicting statements in respect of matters occurring some seven years before. But that was never for Mr Westbrook to pursue. His brief was to examine the existing installation not memory discrepancies between builder and pest system installer. Nor could any such conflict stretch to an assumption that neither covered the reticulation pipes with sandy loam. [13] Mr Cooper quoted the NCC Section 3.1.3.2 which stated that where a chemical is used as an external perimeter termite management system it must be covered by a concrete cover strip not less than 50 millimetres thick and 300 millimetres wide measured from the external wall of the building. In some areas of the perimeter there was no cover strip. He asserted Mr Westbrook did not question the missing cover strip. That being so the 50-year design life as required by the NCC Section 3.1.3.2 was compromised. Nor did Mr Westbrook question this possibility. [14] Additionally, the western wall of the dwelling garage was built on the property boundary resulting in Termguard pipes assertedly being on the neighbour’s land to which there was no access. He said neither Mr Smallwood nor Mr Westbrook addressed this issue. However, that was always a contractual issue between Mr Cooper and McDonald. [15] After Mr Smallwood’s report of 1 July 2020 Mr Cooper conducted more research. On 25 August 2022 he excavated an area of the Termguard reticulation pipes by removing the covering tile and breaking away the concrete below. He then excavated the fill material until a section of the Termguard pipe was exposed. He stored the material and took photographs which he submitted to the QBCC. At the site visit on 14 February 2023 Mr Westbrook was directed to the area where paving, concrete and fill material had been removed. Mr Westbrook recorded his observations/comparisons already referred to here. Mr Cooper took issue with the material dug out by Mr Westbrook and the way it was dug out suggesting that Mr Westbrook was trying to make the samples support his theory. -- 4 of 6 -- 5 [16] On 16 February 2023 Mr Cooper forwarded to Brisbane Garden Soil Testing photos of material he excavated from around the reticulation pipes. He said a person named Graeme at that entity identified the photographed material as primarily clay. [17] Mr Cooper said he could not obtain a sample of material below the Termguard reticulation pipe because it was sitting on the surface of the concrete footing backfilled with surrounding earth and a concrete strip with a tile on top covered by synthetic grass. It was suggested that the reticulation pipes were sitting on poured concrete footings protruding out from under the concrete slab and not cocooned within the material in the reticulation trench. Mr Westbrook stated concrete was resistant to termites. Reticulation pipes installed against concrete or on top of concrete formed a barrier forcing termites out and away. In cross examination of Mr Cooper at hearing it became clear that the level of the land post installation of the reticulation pipes had been raised some 200 millimetres, 100 millimetres by the builder and 100 millimetres by the landscaper “Outside Noosa”. That accorded with Mr Smallwood’s estimate that the finished ground level was 50 to 75 millimetres below the control joint. [18] The QBCC asserted Mr Cooper’s complaint was made out of time pursuant to section 71J of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) which required such a complaint to be submitted to the QBCC within twelve months of the defect becoming apparent. With building work completed in October 2016 and Mr Cooper’s initial complaint regarding the installation of the external perimeter termite management system having been made in April 2020 (and in respect of which a decision declining a direction to rectify was given) the complaint to the QBCC made in August 2022 was over two years after the date of the first complaint. That rendered the current complaint statute barred. [19] Even if it was to be construed that such was not the case the QBCC relied on the NCC’s provisions relating to performance requirements which stated that performance requirements could only be satisfied by a performance solution or a deemed to satisfy solution or both. That approach was confirmed by Mr Westbrook with the reticulation system being issued with a Code Mark Australia Certificate of Conformity which stated that “when the reticulation system is constructed in accordance with manufacturer’s instructions it will comply with the NCC by way of a performance solution” which for the purposes of Mr Cooper’s complaint showed that although the reticulation pipes were required to covered by sandy loam soil there was no requirement that they be covered by a layer of concrete (as opposed to a deemed to satisfy solution which would have required a concrete cover). [20] With Mr Westbrook being satisfied that the reticulation system appeared to be covered with sandy loam soil and otherwise constructed in accordance with manufacturer’s instructions there was no basis for the issue of a direction to rectify. Conclusions [21] Section 71J of the QBCC Act requires a complaint to be submitted to the QBCC within twelve months of the complainant becoming aware of the building work the complainant considers is defective or incomplete. Building work was completed in October 2016. Mr Cooper’s initial complaint regarding the external perimeter termite management system was made in April 2020. On 8 October 2020 Mr Cooper was advised there was insufficient evidence of defective building work. Mr Cooper did not seek a review of that decision. Mr Cooper’s second complaint made in August 2022 was over two years after the date of the first complaint. That rendered the current -- 5 of 6 -- 6 complaint statute barred. For clarity “further research” in the interim does not qualify to give efficacy to a claim or further claim that is otherwise out of time. [22] Even if it was to be construed that such was not the case the QBCC correctly pointed to the two issues to be determined which are “is the building work defective and is it reasonable in all the circumstances to issue a direction to rectify”. Mr Cooper’s complaint, with the Tribunal having dealt with those issues it considered contractual in nature, centred around/came down to two alleged defects. They were the alleged absence of sandy loam in the reticulation trench and the absence of a concrete cover as required by the NCC (Qld). [23] The inspection reports by Mr Smallwood and Mr Westbrook are both detailed with Mr Westbrook’s inspection report being exhaustive on the presence of adequate sandy loam in the reticulation trench at the point of inspection. The Tribunal accepts that Mr Westbrook in his capacity as a QBCC inspector was able to identify the sandy loam in the reticulation trench at the point of inspection. Added to that there is the observation of ongoing functionality of the Termguard system and the absence of any evidence of failure or compromise of the system in the intervening years. On the contrary the successful application of 575 litres of Biflex Aqua by Pest Control Australia on 21 October 2022 is confirmatory of the functioning as intended of the Termguard system. [24] Under the NCC performance requirements can be satisfied by a performance solution or a deemed to satisfy solution or both. With the issue of sandy loam in the reticulation trench resolved it only remains for the necessity of a concrete cover to be resolved. Here the reticulation system was constructed in accord with the manufacturer’s instructions and a Code Mark Australia Certificate of Conformity issued. There was no requirement that the reticulation trench be covered by a concrete cover or layer. Compliance by way of a performance solution was achieved and therefore there was no basis for the issue of a direction to rectify. [25] Nor, given the positive functionality and compliance of the existing Termguard system, is there any basis to conclude it would be fair and reasonable in all the circumstances to issue a direction to rectify. [26] The Tribunal determines that the review application ought to be dismissed and the QBCC decision of 20 March 2023 confirmed. -- 6 of 6 --