Elliott v Queensland Building Services Authority [2010] QCAT 428

CITATION: Elliott v Queensland Building Services Authority [2010] QCAT 428 PARTIES: Mr Robert Arthur Elliott v Queensland Building Services Authority APPLICATION NUMBER: QR172-08, QR222-08, QR146-09 MATTER TYPE: General administrative review matters HEARING DATE: 10.05.10, 11-05.10 HEARD AT: Brisbane DECISION OF: Mr Paul Favell DELIVERED ON: 31 August 2010 DELIVERED AT: Brisbane ORDERS MADE: The Tribunal orders that the directions to rectify building work at 3 Carabeen Court, 2 and 3 Macaranga Court, Melaleuca Gardens Estate at Laidley by the Queensland Building Services Authority be set aside. CATCHWORDS : Building work – whether defective – decision to issue notice to rectify/complete – sections 72, 86 Queensland Building Services Authority Act 1991. APPEARANCES and REPRESENTATION: APPLICANT : Mr. J.P. O’Regan instructed by Maunsell Pennington Solicitors for the Applicant RESPONDENT: Mr. D.H. Locke of Forbes Dowling Lawyers for the Respondent -- 1 of 5 -- QR172-08, QR222-08, QR146-09 / Page 2 of 5 REASONS FOR DECISION Introduction 1. Melaleuca Gardens Estate at Laidley unfortunately has “class E” reactive soils. Mr Elliot, the applicant, in QR172-08, QR222-08 and QR146-09 in 2005 built 16 or more houses in the estate including three houses in the one street at 3 Carabeen Court, 2 Macaranga Court and 3 Macaranga Court. 2. The houses were built during dry times. Since they have been completed moisture has caused the reactive soils on which the houses were built to expand with the consequence that each house has suffered damage to sub surface drains. The house at 3 Carabeen Court has suffered upward movement in the concrete path attached to the house and surrounding the house. Because the path is attached to the house the upward movement has caused the path to pivot at the point it is connected to the house and thus allowing water falling on the path to be directed toward the point where the path joins the house. 3. Although the problems with the sub surface drains and the path were noticed in 2005 and 2006, complaints were not made to the Queensland Building Services Authority (QBSA) until 2007 and 2008. In 2008 and 2009 the QBSA issued Directions to Rectify/Complete to Mr Elliot. 4. Mr Elliot applies pursuant to section 86(1)(e) Queensland Building Services Authority Act 1991 (“the Act”) to review the decisions to issue the Directions to Rectify/Complete. He does so on the basis that there is no defective building work and alternatively, if there is defective building work, it is not an appropriate exercise of the discretion given by section 72 of the Act to issue a Direction to Rectify/Complete because of the circumstances common to each of the three houses. 5. The applicant argues that those circumstances are novel. In each instance the sub surface drainage was designed by an engineer and plumbing and drainage plans were issued in respect of each house. (For example see Exhibit 4 attached “RE 1(b)”). The plumbing and drainage was the subject of certification by an engineer and the Plumbing and Drainage Inspector of the Laidley Shire Council. The Inspector certified that “the plumbing and drainage work was found to have been substantially completed in accordance with the Plumbing and Drainage Act 2002 and AS3500 – National Plumbing and Drainage Code”. 6. There is no serious factual dispute in these three applications. The applicant does not dispute that the problems described in the Directions to Rectify/Complete have arisen. 7. The applicant contends that the problems are not a result of defective work and if they were it would be unfair within the meaning of section 72(14) of the Act to order the applicant to rectify the problems. 8. It is not disputed that Mr Elliot completed the sub surface drainage and plumbing work in accord with the engineer’s design and plans. All knew the reactive nature of the soils. The first thirteen houses were built upon a suspended slab on screw piers with the soil beneath “ripped” to 600 millimetres deep. 9. At the direction of the engineer the three houses the subject of the directions were built on slabs on screw piers with “void formers” immediately below the slab and above the reactive soil. In all other respects the construction of the first thirteen -- 2 of 5 -- QR172-08, QR222-08, QR146-09 / Page 3 of 5 under slab work was identical to the under slab work in the house the subject of the directions. 10. The purpose of “ripping” the soil and using “void formers” was to allow room for the soil to rise without interfering with the slab or the under slab plumbing work. 11. I accept that Mr Elliot carried out the construction work in accord with the engineering design and directions. 12. In my view the design provided by M3 Consulting Engineers Pty Ltd would not have prevented the problems the subject of the directions when the reactive soil expanded. 13. Mr Eric Fox is an engineer with extensive experience with design and assessment of residential buildings. He is Chair of the Standards Australia Committees for AS 4349 Inspection of buildings and AS 2870 Residential slabs and footings. He was a member of the Australian Building Codes Board Committee responsible for writing Building Code of Australia Volume 2 Housing Provisions. He has provided two reports which became exhibits 6 and 7 concerning the residences at 2 and 3 Macaranga Court Laidley. The evidence given by Mr Fox was not challenged and I accept the evidence given. 14. At the beginning of the hearing of these matters the parties agreed that the determinations with respect to residences at 2 and 3 Macaranga Court should be the determination with respect to the directions concerning the residence at 3 Carabeen Court and accordingly the evidence was only in respect of 2 and 3 Macaranga Court. 15. Mr Fox in Exhibit 6 set out the relevant part of the Building Code of Australia concerned with Sanitary Drainage. That report was concerned with the possible leakage of water into the habitable areas of the house. Functional Statement F 2.4.1 of the Building Code of Australia Volume Two states: “A building is to be constructed to avoid the likelihood of – (a) the creation of any unhealthy or dangerous conditions; or (b) damage to building elements caused by dampness or water overflow from bathrooms, laundries and the like.” 16. AS 2870-1996 Residential slabs and footings provides – Construction in a nominated acceptable construction manual in the BCA and construction in accordance with the standard is deemed to satisfy the BCA. AS 2870 includes drainage and plumbing requirements for extremely reactive sites such as trench backfilling and flexible pipe connections. 17. Alternatively BCA allows the use of alternative solutions certified by a professional engineer (BCA Volume 2, paragraph 1.2.2(a)(iii)) 18. AS / NZS 3500.5-2000 National plumbing and drainage Part 5: Domestic installations sub-clause 4.30 states: “Unless otherwise authorised by a regulatory authority, where soil movement may affect the performance of any drain a plan and specification, together with a soil report and all calculations showing a proposed method to protect the installation from excessive soil movement … shall be determined by an appropriately qualified person.” -- 3 of 5 -- QR172-08, QR222-08, QR146-09 / Page 4 of 5 19. It is not disputed that in respect of each of the three residences M3 Consulting Engineers Pty Ltd provided a drawing “Plumbing and drainage layout” detailing treatment of drainage and plumbing issues on the sites including a specification for a flexible joint in drainage pipes at or near the external wall of the house and an “expansion coupling” where vertical waste pipes passed directly through the slab to the drainage system. 20. The M3 drawing included the following note: “In reactive clay sites and poorly compacted fill sites, expansion couplings and knuckle or swivel joints shall be used to articulate the plumbing. Where expansion couplings cannot be used, stainless steel straps shall be used (e.g. waste gully or Palazzi system)…”. 21. The Palazzi system was used in each residence and was included in the M3 drawing. 22. The applicant gave uncontested evidence which I accept and which seems consistent with the note included in the M3 drawings that expansion couplings could not be used effectively in the Palazzi system because different sized pipes were used in the system and expansion couplings for the smaller pipes did not have sufficient movement capacity as those used for the longer pipes used in the Palazzi system and should there be movement causing the longer pipes to move the smaller pipes connected to the side of the longer “p” trap pipe would be compromised. 23. Mr Fox gave evidence that in his opinion the applicant was requested to follow the M3 documents and details and that they were a complete replacement for the AS2870 requirements. He was of the view that “there was no requirement for the builder to seek advice regarding detailing of underslab drains from AS2870 and it would not have been proper for the builder to do so”. 24. The applicant gave uncontested evidence that the construction of the plumbing and drainage system was carried out in accordance with the M3 design where applicable and otherwise in accordance with normal practice and the directions of the Council plumbing inspector. 25. The plumbing installations were inspected by the Council inspector and approved. 26. An In-drain inspection by Drain Vision was carried out and the results of those inspections were examined by Mr Fox. Based on those observations and the matters referred to above Mr Fox was of the opinion that the under slab plumbing and drainage systems, and specifically the shower waste pipes in the ensuite and bathroom were constructed generally in accordance with the Engineer’s requirement and the Australian Standards. Nevertheless Mr Fox was of the opinion that the leaking of the elbows in the waste pipes beneath the showers as identified by Drain Vision was because there had been movement of the shower waste pipes resulting in damage to the pipe integrity in both showers. He said that “the damage to waste pipes from the showers was as a result of heaving of the ground beneath the house relative to the house slab thereby pushing the shower waste pipes vertically upwards relative to the floor slab. On the evidence I accept that is correct. 27. Mr Fox was of the opinion that the reason for the damage that has been suffered to the waste pipes from the showers was failure of the engineer to provide plumbing or drainage details that were adequate to protect the drains against damage resulting from heaving of the natural ground on the site. In my view that is correct. -- 4 of 5 -- QR172-08, QR222-08, QR146-09 / Page 5 of 5 28. As 2870 in clause 6.6(f) provides: “Joints in plumbing pipes within 3m of the house under construction shall be articulated to accommodate ground movements without leakage…” 29. The direction given on 23 October 2008 relied upon that portion of AS 2870 and contended that “the installation of the sub surface sewer drainage system … was not in accordance with AS 2870-1996 section 6.6 in that pipe work has not been articulated to accommodate ground movement…” 30. AS2870-1996 is a nominated acceptable construction manual in the BCA and construction in accord with that standard is deemed to satisfy the BCA as does the use of alternative solutions certified by a professional engineer (BCA Volume 2, paragraph 1.2.2(a)(iii)). 31. In my view in the circumstances the applicant has satisfied the requirements of the BCA with respect to the drainage issue and in my view there is no defective building work in that regard. 32. What was defective is the engineering design not the building in accord with that design. 33. The other issue identified in these applications was whether the rising of the outer edges relative to the inner edge of pathways around one of the houses was because of defective work by the builder. 34. Mr Fox gave evidence that putting pathways around houses built on extremely reactive soil is good building practice because such pathways assist to prevent moisture from getting to the soil under the slab and thus minimise soil movement under the slab. That is also reflected in a brochure entitled ‘A simple “How To” Guide to preventing structural damage to your home’ (ex 1 page 4) when it states: “A sound plan for a reactive clay site is to provide a consistent moisture regime around the building by installing paths and patios against the house”. 35. The evidence is that the paths were built appropriately with a fall away from the house to ensure appropriate drainage. 36. I accept that the problem is not a consequence of defective building work. In my view building work as defined by schedule 2 of the QBSA Act done by the applicant is not faulty or unsatisfactory and not defective. 37. Section 72 of the QBSA Act allows the Authority to direct the person who carried out the building work to rectify the building work if it is of the opinion that the building work is defective or incomplete. It may take into consideration all the circumstances it considers are reasonably relevant. 38. Both parties have made oral submissions and provided written submissions. I have taken those matters into account. There is nothing controversial in the submissions as to the applicable law. The real difference is whether the building work done by the applicant is defective. In the circumstances which exist here in my view that building work is not defective and in my view the directions to rectify under review should be set aside. 39. If the building work done by the applicant was defective, in my view, in the circumstances I have set out herein it would be unfair to the applicant to give a direction to rectify. -- 5 of 5 --