Demac Homes (Qld) Pty Ltd v Queensland Building Services Authority [2010] QCAT 190

CITATION: Demac Homes (Qld) Pty Ltd v Queensland Building Services Authority [2010] QCAT 190 PARTIES: DEMAC HOMES (QLD) PTY LTD v QUEENSLAND BUILDING SERVICES AUTHORITY CHAMBERS Michael & Michele APPLICATION NUMBER: Q033-05 MATTER TYPE: Building matters HEARING DATE: 19.10.2009, 20.10.2009, 21.10.2009 and 18.2.2010 HEARD AT: Brisbane DECISION OF: Mr Richard Oliver DELIVERED ON: 30 April 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. The Application is allowed 2. The Direction to Rectify dated 1 May 2005 as amended is set aside. CATCHWORDS : Direction to Rectify; whether the footing system complied with AS2870-1996; whether the Caboolture Flood Management Policy applied the subject land; whether cause of flooding to the house was as a result of failure to comply with the Building Code of Australia or other external factors including the failure of the Caboolture Shire Council to maintain open stormwater drains and permitting development resulting in excess stormwater runoff; Direction to Rectify set aside. APPEARANCES and REPRESENTATION (if any): APPLICANT : Mr Ambrose of Counsel instructed by Hopgood and Ganim FIRST RESPONDENT: Ms Hindman of Counsel instructed by Holding Redlich SECOND RESPONDENT: Michael & Michele Chambers -- 1 of 20 -- Q033-05 / Page 2 of 20 REASONS FOR DECISION Introduction 1. In 2003 the applicant, Demac Homes (Qld) Pty Ltd (“Demac”) constructed a house for the second respondents, Michael and Michelle Chambers (“the Chambers”) at 103 Bellay Road, Beachmere. The block of land, consisting of some 5 acres on which the house was constructed, is low lying and approximately 1km from Deception Bay. All of the surrounding land in the locality is low lying as depicted in the Schematic Plan1 . The house slab was constructed to an RL level of 1.9m. 2. The local authority, the then Caboolture Shire Council (“the Council”), undertook all necessary inspections during the construction but has not issued a final plumbing certificate. When the Council’s plumbing inspector did the final plumbing inspection in September 2003, in particular of the home sewerage treatment plant (“HSTP”), questions were raised as to whether or not this land fell within the Council’s “Flood Plan Management Policy”. 3. Despite this, the Chambers moved into the house in October 2003. Subsequently, and in particular in the early part of 2004 during an abnormal rain event, the land flooded but fortunately there was no water ingress into the house. It was immediately apparent the land had drainage problems which resulted in a complaint to the Queensland Building Service Authority (“the Authority”). Since the complaint was lodged there have been further rain events and in particular in May 2009, the house flooded to the extent of 300mm above the slab height. 4. After undertaking an investigation, the Authority issued a Direction to Rectify (“the Direction”) on 1 March 2005. The Direction was in the following terms:- (i) Excavation of site and finished floor levels relative to surrounding ground level are non compliant with Building Code of Australia in section 5.2.1 of Australian Standard 2870 in: (a) Run off from storms and tidal drainage from local property has resulted in flooding to perimeter of the home and household waste water treatment plant. (b) No provision for discharge of service water away from footing system has been incorporated in site levelling and no provision for adequate drainage of surplus water from surrounding ground up hill relative to slab grounding levels. (c) During times of perimeter flooding, the home is unable to be accessed and not fit for habitation 5. The Direction was subsequently amended to include the following: The house as (as constructed) does not comply with the Building Code of Australia and section 5.2.1 of Australian Standard 2870 in that:- 6. The Applicant now seeks a review of that Direction to Rectify. 1 Exhibit 9 -- 2 of 20 -- Q033-05 / Page 3 of 20 Background Facts 7. Mr Chambers purchased the 5 acre block of land in Bellay Rd in 1984. The purchase was for future investment as he was in the Australian Navy at the time. The land was part of a new estate that had been developed in the Beachmere area. He engaged solicitors for the purchase but does not recall if flood searches were undertaken. One can reasonably suppose that searches of the local authority would have been done and if there were issues of flooding, this would have been brought to Mr Chambers attention. It is common practice for local authorities to identify areas that are subject to flooding even now Council records do not record the land as being flood affected. 8. The subdivision, consisting of acreage blocks, is curious in so far as the stormwater runoff is concerned. As is shown in the schematic plan2 there is a main open stormwater drain (the “main drain”) running between Bellay Rd and Bishop Rd with smaller open stormwater drains running into the main drain. 9. One such smaller drain is on the Chambers land along the northern boundary which is the subject of a registered easement in favour of the Council. These drains would have been clearly visible at the time of purchase, which it seems was soon after the completion of the subdivision. In addition the drain is shown on the real property title as an easement. 10. With the passing of time the drains have become overgrown with weeds, grasses and even mangrove seedlings, as well as being clogged with debris and silt. There is also a table drain adjacent to Bellay Road in between the front boundary of the Chambers’ land and the road. 11. In the intervening years, the Chambers visited the land on occasion but, as Mr Chambers position with the Australian Navy caused him to be stationed at various places around the country, these visits were rare. Mr Chambers father would assist in making arrangements for contractors to clean the block up as required. Mr Chambers states that he was not aware of any drainage problems with the block during this period. I accept his evidence on this point but it is of little consequence to the outcome of the application. The Building Contract 12. Demac Homes (QLD) Pty Ltd (“Demac”), in 2003 carried on business as a project home builder. 13. In the early part of 2003, after retiring from the Australian Navy, both Mr and Mrs Chambers went to one of Demac’s display homes at Elimbah in the environs of Caboolture and there spoke to one of Demac’s sales people, Phillip Bullock. They had a general discussion with him about the type of house they wanted, and they made arrangement to meet on the Chambers’ land at Bellay Road in the latter part of March. 14. At the onsite meeting there was general discussion about where the house should be positioned on the block. The Chambers told Mr Bullock that their 2 Exhibit 9 -- 3 of 20 -- Q033-05 / Page 4 of 20 preference was to have the house sited to the lefthand (southern) side of the block and towards the front. Mr Chambers’ evidence with respect to the location of the house is as follows:- “I told Mr Bullock that my wife and I wanted the house constructed 20 metres in from the front lefthand fence of the property and 20 metres in from the front boundary. The theory behind this was that we wanted the house as close to the front of the property as possible to allow people to see it from the road. We had wanted to maintain the back of the property for the kids to ride motorbikes and perhaps to keep some livestock. Mr Bullock responded that he would provide me with a costing/quote for the house at the front lefthand side of the block.” 15. There was no discussion about siting the house on any other part of the land, nor was there any discussion about drainage and like issues. Mr Chambers concedes that at the time of the inspection, the grass on the block, it being uncleared, was quite high and I infer that it would have been difficult to ascertain the topography of the land when one has regard to the contour plan prepared by DTS Group Qld 3 . That plan indicates that the differential in height of the land where the house is currently located, as compared to the land towards the rear of the block (where it is highest) is only about 300mm. In fact when one looks at the frontage of the block the height is RL1.52m compared to a maximum height on the highest part of the land of RL2.16m. For all intents and purposes this can be regarded as a flat block of land. 16. Subsequent to that inspection, Demac Homes provided a quote for the construction of the house at $154,197.00. There were further discussions about costings and ultimately the cost went to $172,000.00. On 14 May 2003 a standard form Master Builder’s Contract was entered into between the Chambers and Demac Homes. 17. Work commenced on the house on 16 June 2003. Essentially, the build was uneventful, however, there were some access problems because of rain in June 2003 with Demac requesting the Chambers provide an all-weather access road from the front gate to the house pad. The construction was completed on or about 9 October 2003. There has been no evidence led of any complaints of any defective or incomplete work. The Complaint to the Building Services Authority 18. In the early part of 2004 the Chambers became aware that the Council had not issued a final plumbing approval. In addition on 5 March during a rain event water lapped the entrance to the house. The home sewerage treatment plant (“HSTP”) was completely submerged in water and inoperable and the overflow relief gulley (“ORG”) was under water.4 19. On 25 July 2004 the Chambers lodged a complaint with the Building Services Authority which contained the following: 3 Exhibit 36 “LRB – 29” 4 Exhibit 30 -- 4 of 20 -- Q033-05 / Page 5 of 20 1. Council(Caboolture) has advised that the HSTP is below the flood level permitted by Council under its policy 803/02 HSTP tank height as constructed is RL 107.01 and should be RL 2.00 2. Council has advised that the dwelling slab height is also below the permitted level. As constructed height is RL 1.905 and should not be below RL 2.3 20. The Building Services Authority investigated and issued the Direction on 1 March 2005 after which Demac attempted to undertake some remedial work to channel water away from the house into the open storm water drain. 21. This remedial work included some fill being placed on a property around the residence and the installation of a “V” drain running from side levee of the bank of the drainage easement near the back of the property to the residence” 5 22. Mr Brain, the building inspector from the Authority, who inspected the site after this remedial work, was not satisfied that the drain functioned properly and Mr Ryan, the director of the applicant, conceded that having regard to the contour plan that the works were not going to alleviate the drainage problems. Subsequently, the Direction to Rectify was amended to read as follows: (a) “The house (as constructed) does not comply with the Building Code of Australia and section 5.2.1 of Australian Standard 2870 in that…” 23. Subsequent to the issue of that amended direction, further negotiations were entered into and with the agreement of the Chambers the bund wall around the perimeter of the house was lifted, and a dam was installed. Mr Brain, of the authority describes this further work as follows: (a) “At the inspection I observed that Demac Homes had undertaken the following works of the property: (b) change the site levels to provide a fall to a catchment area (a dam) to accommodate the discharge of surplus water; (i) lifted the level of the bund wall adjacent to the drainage channels that is influenced by the tides (during high tide water level increases in the drainage channel); (ii) provided an electric pump to pump water from the dam to the drainage channel (a) The design of the Concept Engineering calls for the dam to be six (6) metres wide, thirty (30) metres long and 1.5 metres deep but because of the substrate (it is silty sand) Demac Homes struck surface water when excavating a dam so the dimensions of the dam had to be changed. The dam is now longer and shallower than the original provided for in the original design of Concept Engineering” 24. Mr Brain inspected this further work on 16 May 2007 and then wrote to Demac advising that the rectification work had not been carried out to the 5 Exhibit 36 Paragraph 63 -- 5 of 20 -- Q033-05 / Page 6 of 20 satisfaction of the Authority. Subsequent to this correspondence Mr Brain issued a further direction to rectify to the applicant as follows: (a) “Rectification work carried out to comply with Direction 27516 issued on 1/3/2005 is defective in that excavated vertical wall of over land flow catchment dam unstable and in a number of locations collapsed. Further remedial work is required to ensure long term stability of the excavation” 6 25. No further rectification work has been carried out and, in the severe rain event in May 2009 the water discharge system failed and the house flooded to the point where about 300mm of water went through the house. 26. Had the house slab been constructed to a level of RL 2.3m, water would not have entered the house because it only rose to a level of about RL 2.2m. This is clearly depicted in the photographs. Site Inspection 27. At the commencement of this hearing the Tribunal conducted an onsite inspection of the subject land, the house and the locality. The remedial works undertaken by Demac including the dam and pump were also inspected. 28. The overall impression one gained from that inspection is that in heavy rain events, and with a back up of tidal flow in the storm water drains, drainage of excess storm water would be problematic, thus creating the potential for flooding. It was observed that surrounding houses are built slightly higher than the Chambers residence and one can readily see that drainage of surface water generally would be problematic. 29. The stormwater outlet into Deception Bay under Campbell Rd was also inspected. Again it was evident that these pipes have not been maintained and were clogged with silt and weeds. It is just extraordinary that the Council has not seen fit to maintain these pipes to ensure a free flow of both tidal water and storm water. Similar comments can be made about the main drain. Certis Pty Ltd 30. In order to obtain a development approval, Demac engaged the services of private certifiers, Certis Pty Ltd (“Certis”). 31. On 12 June 2003 Certis gave to Demac a Development Application Decision Notice which stated that the Caboolture Shire Council had approved the construction of the house in accordance with the plans and specifications of the Decision Notice of Caboolture Shire Council of 10 June 2003. 32. The Council records indicated that the land, at the time of the issuing of the development approval, was not subject to flooding. Council advised Certis that the land is in an area where the Council uses high tide levels to determine building levels and as a consequence the reduced levels at high tide is 1.60m 6 Exhibit 36 “LRB‐37” -- 6 of 20 -- Q033-05 / Page 7 of 20 Australian Height Datum (“AHD”). Therefore as a consequence of this advice, the house slab was constructed at a height level of RL 1.905m, 300 above the prescribed AHD. This has been confirmed by a subsequent survey, which also confirmed that the height of the HSTP Tank is RL 1.701M. 33. When attempting to obtain a final approval, Certis wrote to the Council on 19 March 2004 to confirm the information provided to it which records the following: “(a) As part of the Certis’s assessment process, property information including a flood search was requested from Council. The following information was provided from Council: (i) Council has no records indicating flooding of the above property. (ii) Council does not have specific reduced levels on this allotment, but would appear that the minimum R.L. is approximately 1.0m Australian Height Datum. (iii) The allotment is in an area where Council uses high tide levels to determine building levels. Reduced level at high tide levels to determine building levels. Reduced level at high tide is 1.60m Australian Height Datum. (a) Certis then; issued a building approval based on the above information and the dwelling was constructed with a slab height of RL 1.905 (300mm above the 1.6 AHD advised by Council) and HSPT tank height of RL 1.70.1m AHD. (b) The HSPT was approved by Council and fees were paid to enable Council to conduct 4 plumbing inspections. (c) All work has been constructed to council approval. Sub- drain, drain and water rough-in inspections were carried out by Council during construction of the dwelling with no conditions resulting.” 7 34. Although this letter is dated in 2004, it does provide some evidence of Certis’ involvement in ascertaining the appropriate slab height during the development approval stage. Importantly there was no indication that any other criteria, in so far as slab height is concerned, had to be met. Importantly there is no evidence that the Council’s “Flood Plan Management Policy” (“the Policy”) was brought to Certis’ attention during this development approval stage, even though it is said to be on the Council’s website. The construction and inspections 35. During the construction, various inspections were carried out and approvals were granted at various stages, including the inspections by the Council in respect of under slab drainage, sewer and water drainage on 25 June 2003, rough in plumbing on 22 July 2003. Certis inspected and passed the frame of the house on 22 July 2003. 8 36. The first time any issue was raised about the height of the house slab was when the Council officer came to inspect the sewerage system in early 7 Ex. 36 SOR 2 page 19 8 Ex 2 Joint Agreed Statement of Facts -- 7 of 20 -- Q033-05 / Page 8 of 20 September 2003. The inspector would not approve the HSTP as it was too low and the building slab height did not comply with the Councils flood policy. Discussions were then held between the Council and Certis but it seems no resolution of the problem was achieved. The Council wrote to Certis and informed it of the Flood Management Policy 9 which required the house slab to be constructed to an RL of at least 2.3m. 37. It is not contentious that this was the first time that the Council’s Flood Management Policy was brought to the attention of Demac through its certifiers, Certis. However, by this stage the house was very nearly completed and in fact handover was approximately 4 weeks later. The Flood Management Policy 38. The Policy relevantly provides:- “In areas affected by tidal water: (a) The floor of habitable rooms must not be lower than RL 2.3 metres AHD” 39. The parties agree that this policy is not a legally enforceable policy as it had not been formally adopted by the Council. However, the respondent submits Demac, in exercising proper building practices and investigations, ought to have been aware of the policy as it was on the Council’s website, if not Demac then certainly Certis. Had the policy been adopted, the house slab would have been constructed, or ought to have been constructed to an RL level of 2.3m AHD. This would have avoided flooding in the house but would not have had any impact on the drainage issues around the perimeter of the house. 40. An alternate solution would have been to build the house at the rear of the block. Some issue was made as to whether the Chambers would have agreed to moving the house to the higher ground or have paid for imported fill to lift the house. All of this is now speculative and given what the Chambers have experienced it is now reasonable for them to say they would have considered and adopted one of these options. One obviously has to treat this evidence with caution but even so it carries little weight when one has regard to the issues for determination, that is whether the building work “as constructed” was defective. 41. It is submitted by the Authority that the policy ought to apply to the Chambers’ site because:- (i) The Council applied the policy in 1989 to the adjoining block prior to the construction of the Chambers’ home. It is self-evident on the site inspection that the house on the adjoining block is built up on fill; (ii) Tidal water has been seen by the Chambers in the side drain and by others in the back drain; (iii) The existence of tidal water in the drains prevents or impedes surface water from draining away from the subject land; 9 EX 36 LRB 2, letter from Council 13 September 2003. -- 8 of 20 -- Q033-05 / Page 9 of 20 (iv) As the policy is designed to protect homes it should be applied broadly. 42. A pre cursor to the application of the policy is a finding that the subject land is in fact in an area “affected by tidal water”. The land per se is not affected by tidal water, but there is conclusive evidence that tidal water does make its way up the main drain and into the drain on the Chambers land, if only to a minimal depth 43. There was no clear articulation of what is meant by the words “areas affected by tidal water”. Although the word affected is an everyday word used in common parlance however here, it doesn’t provide any assistance as to the degree the area must be “affected” before it falls within the policy. Quite obviously the land itself upon which the house is constructed is not “affected” by tidal water but, the storm water drain is affected by tidal water and in fact there is a video produced by the Chambers showing tidal water coming up the storm water channel. This of course is only at high tide. 44. The contour plan10 shows that adjacent to the house the ground level at the bottom of the storm water drain is RL1.06 (and varying heights in that area). But, “affected” does not only mean that tidal water does flow onto the land but its affect is such that it does prevent or, inhibit, the egress of water from the land in a storm event. Therefore, in this context the land could be said to be “affected” by tidal water and therefore, consistent with the policy, habitable rooms should have been on a level of at least RL 2.3 metres AHD. 45. If this was the case then one could reasonably suppose that not only would the Policy be adopted by the Council the land itself would be shown as being in a ‘flood plain” when Council records are searched. There is no clear identification or evidence that the land in fact is “affected by tidal water” nor is there any indication that the land is in a flood plain. In the absence of some clear notification, neither the owner nor the builder could be made aware of these facts. 46. I have therefore come to the conclusion that the Flood Management Policy is not a relevant policy which ought to have come to the attention of CERTIS. The land is sufficiently distant from Deception Bay to not have put the builder on alert, particularly in the absence of any advice to that effect from the Chambers, that tidal influences should be taken into account. Nor could there have been any reasonable expectation on the part of either the Chambers or Demac that hydraulic issues of the type considerably Mr Winders ought to have been addressed by Demac. Statutory Provisions 47. The Direction was issues pursuant to section 72 of the Queensland Building Services Authority Act (“QBSA Act”). It provides: 10 Exhibit 36 “LRB – 29” -- 9 of 20 -- Q033-05 / Page 10 of 20 “If the authority is of the opinion that building work is defected or incomplete, the authority may direct the person who carried out the building work to rectify the building work within the period stated in the direction” 48. Pursuant to section 86 of the QBSA Act that direction is a reviewable decision being one which is: “a decision to direct or not to direct rectification or completion of Tribunal work” 49. That the work complained of is Tribunal work is not in contention. 50. The review jurisdiction is exercised by the Tribunal 11 and when exercising the review jurisdiction the Tribunal: (i) must decide the review in accordance with this act and the enabling act under which the reviewable decision being reviewed was made; (ii) may perform the functions conferred in the Tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; (iii) has all the functions of the decision maker for the reviewable decision being reviewed. 51. The hearing conducted by the Tribunal must hear and decide a review of a reviewable decision by way of a “fresh hearing on the merits”12 . 52. It is the function of the Tribunal in a proceeding for a review of a reviewable decision to: (i) confirm or amend the decision; or (ii) set aside the decision and substitute it’s own decision; or (iii) set aside the decision and return the matter for reconsideration to the decision maker for the decision, with the directions the Tribunal considers appropriate. Issues 53. The Authority has identified the issues to be considered by the Tribunal in this hearing. They are: (i) was the building work defective (ii) was the applicant responsible for the defective building work (iii) was the decision to issue the direction to rectify reasonable in the circumstances 11 Section 17 QCAT Act 12 Section 20 QCAT Act -- 10 of 20 -- Q033-05 / Page 11 of 20 Defective Building Work 54. The authority relies on part 1.2 of the Building Code of Australia (“BCA”) which adopts Australian Standard 2870-1996 for residential slabs and footings. It is in the following terms: “5.2.1 General requirements: The drainage and height of the floor level above finished ground level may be effected by factors other than structural design requirements. Such factors include the following: (a) the local plumbing requirements, in particular the height of the overflow relief gully relative to drainage fittings and ground level (b) the run off from storms and local topography (c) the effect of excavation or filling (d) the possibility of flooding (e) the effects of existing and post construction landscaping; (f) the level of existing legal point of storm water discharge (G) termite management (CA 3660.1) Drainage shall be designed and construct to avoid water ponding against or near the footing. The ground in the immediate vicinity of the perimeter footing, including the ground uphill from the slab on cut and fill sides, shall be graded to fall 50 mm away from the footing over a distance of 1 metre. Alternative grade systems will be required on lot line construction. Any paving shall also be suitably sloped” Part 2.2 BCA (damp and weatherproofing) provides: The objective is to: (a) safeguard occupants from illness or injury and protect the building from damage caused by: (i) surface water; and (ii) external moisture entering a building; and (iii) the accumulation of internal moisture in a building; and discharge of swimming pool waste water; … “Surface water” is defined as: Surface water means all naturally occurring water, other than sub-surface water, which results from rainfall on or around the site or water flowing onto the site, including that flowing from a drain, stream, river, lake or the sea. Clause P2.2.1 BCA provides: (a) Surface water, resulting from a storm having an average occurrence interval of 20 years and which is collected or concentrated by a building -- 11 of 20 -- Q033-05 / Page 12 of 20 or site work, must be disposed of in a way that avoids the likelihood of damage or nuisance to any other property. (b) Surface water, resulting from a storm having an average recurrence interval of 100 years must not enter the building. (c)A drainage system for the disposal of surface water must – (i) convey surface water to an appropriate outfall; and (ii) avoid the entry of water into a building; and (iii) avoid water damaging the building Average recurrence interval is : Applied to rainfall, means the average or expected interval between events of a given rainfall intensity being exceeded Clause 3.1.2.3 BCA provides: Surface water drainage: Surface water must be diverted away from class 1 building as follows: (a) slab – on – ground – finished ground level adjacent to buildings: (b) the external finished surface surrounding the slab must be drained to move surface water away from the building and graded to give a slope of not less than 50mm over the first 1m from the building (see figure 3.1.2.2); (c)slab – on – ground – finish slab heights; the height of the slab – on – ground (measured at the slab edge) above external finish surfaces must be not less than: … 50mm above paved or concreted areas that slope away from the building in accordance with (a). Explanatory information: The appropriate slab height above finished ground level may vary depending on: (1) The local plumbing requirements; in particular the height of the overflow relief gully relative to drainage fittings and ground level (to work effectively, they must be a minimum of 150mm below the lowest sanitary fixture). (2) The run-off from storms and the local topography. (3) The effect of excavation on a cut and fill site. (4) The possibility of flooding. (5) Termite barrier provisions.13 55. In significant rain events resulting in perimeter flooding the slab design at height RL 1.9 does not permit sufficient drainage for storm water run off and 13 Respondents submissions para 34‐36 -- 12 of 20 -- Q033-05 / Page 13 of 20 avoid flooding of the HSTP and therefore it is argued that there is no provision for discharge of surplus water away from the footing system 14 . 56. It is also argued that the house, as constructed makes no suitable or sufficient provision for drainage of storm water to an appropriate outfall in such rain events. However in these events, where there are restrictions on drainage resulting from external causes, it is doubtful there the slab height would make a significant difference. 57. When the Council first identified the problem with the slab height during the final plumbing inspection of the HSTP, the applicant sought to remedy the problem of the height of the HSTP by adding an extra ring to it, this does seem to work, but, according to Mr Brain, the system still does not comply with Council requirements. As Mr Brain said: “I’m not an expert in the actual workings of an HTP Plant, but from my understanding of it, it would not be compliant. The ring that was placed on top was probably my suggestion to prevent flooding in the short term, stops the electrics being shorted out. The current situation is that they have a ring on the top. That doesn’t alter the fact that the tank is at the wrong level. It’s merely there to prevent surface flooding coming into the top of the tank or hitting the top of the tank”. 58. Not only is there a problem with the level of the HSTP, but also the ORG. The ORG must be below the lowest drainage point in the house, usually the shower recess. This permits water to escape from the house drainage system but if water is not drained away from the house, and the outside area is flooded, potentially water can back up through the drainage system into the house. Therefore it is essential that the ORG is not subjected to flooding of any kind and similar considerations apply to the HSTP. Here, both will flood in a significant rain event that has been proven by past events. Clearly, having regard to what has occurred in the past the house will always be susceptible to flood inundation. 59. It is on this basis that the respondent contends that the house does not comply with the requirements of the BCA. 60. In contrast, the applicant relies on the expert opinion of Mr Griffiths15 he is of the opinion that the house as constructed does comply with the BCA because its objectives and purpose is to ensure structural integrity of the building. He said: (i) “The building code of Australia is, basically, the document by which building work throughout Australia is undertaken. It provides for objectives and basic performance criteria, that sort of thing, that the building must comply with. Basically, the minimum requirements. The Australian Standard, in this case, is 2870, which is the residential footings and slab standard, and that’s basically, a structural document that is deemed a comply document that the BSA, or the Building Code of Australia, recognises, and the actual section – I think it was section 5 that’s been referred to in this matter…. 14 L.R Brain – T172, L10‐14 15 Exhibit 23 -- 13 of 20 -- Q033-05 / Page 14 of 20 (ii) It’s rewrite of part 3 of the Building Code of Australia under the heading of drainage for surface water drainage. So I think, in my view, anyway, the building code of – the Australian Standard, basically defers back to the Building Code of Australia. So the Building Code of Australia is the document, I think, that this case hinges on.”16 61. Essentially what Mr Griffiths is saying is that with respect to footing and slab construction, the BCA sets the criteria in association with the Australian Standard which is a deemed to the comply provision. If the slab and footing system is designed to the Australian Standard then the Building Code of Australia is satisfied. He went on to say: “What I’m saying is the Australian Standard is one document you can rely on. If you decide to satisfy that document, then you satisfy the building code of Australia. In other words, it’s one of the solutions you can use. You can go and design a footing system outside the Australian standard and if you can prove that it’s going to work, then you’ve come up with an alternative solution and that may very well comply with the Building Code of Australia as well.” 62. Mr Griffiths considered, as an expert in the building industry, it reasonable for a builder to rely on the Council records that existed at the time but also conceded that the house was built on the lowest part of the land which should have put the builder on alert. 17 However, if the builder wasn’t familiar with the area it would be reasonable for him, in Mr Griffith’s expert opinion, to rely on council records. 63. Not only does the applicant rely on the compliance with the BCA it submits that the flooding of the land and the house is as a result of external causes such as the Councils failure to properly maintain the stormwater drains in this subdivision and permit development in the area which has exacerbated storm water runoff being channelled into the Bellay Rd area. Expert Evidence and Joint Expert Report 64. The various experts who have provided reports focus on the height differential in the slab as a result of the application of the Flood Management Policy. Its applicability to this site was considered above so the only evidence from the experts relevant to the remaining issue, that is whether the slab, as constructed, complies with the BCA in terms of drainage. 65. Mr Murphy observes that the inclusion of the stipulation of Clause 5.2.1 in AS2870-1996 to prevent water ponding against or near the footing is to prevent differential movements in the footing system. This is of course not in contention and he acknowledges that the flooding that has occurred in each of the rain events would have caused equal distribution of moisture to the footing system. However he does go on to say in the Joint Report 18 : 16 T95, L15‐30 17 T105 L6‐15 18 Exhibit 3 -- 14 of 20 -- Q033-05 / Page 15 of 20 “Depending on the permeability of the clays, the length of the flood exposure and the depth of the footing system there is however some risk of the development of differential movements between the external wall footings and the internal slab areas” 66. Having said that there is not evidence of any footing failure or differential movement. The integrity of the foundation has been maintained. 67. Mr Murphy considers the “causes of water inundation”19 which are unrelated to solely the height of the slab. They include surface drainage, tidal influences, storm water surges, backwater influences and inflows from the main drain. Once again there seems to be no dispute about these causes but what Mr Murphy does not address is why these “causes” have become increasingly worse over the years. 68. This all leads Mr Murphy to conclude that the site drainage around the perimeter of the building is inadequate, and is non-compliant with the provisions of the BCA. 20 69. A similar view is adopted by Mr Hughes21 in fact Mr Hughes challenges quite directly, the opinion of Mr Griffiths and says: “It appears that we are diametrically opposed to Mr Griffiths with regard to compliance with the Building Code of Australia. We say the building does not comply….he has an opposite view. At page 7 of the Griffiths report…..it is stated :…”I believe, providing water collected or concentrated by the building or site work is conveyed to an appropriate outfall, does not present an unhealthy situation, does not enter the dwelling, and avoids that water damaging the building, the work should be deemed to comply” …………… It appears that Mr Griffiths has overlooked the definition of “Surface water” in the BCA. It is not only water concentrated by the building or site work, and includes run-off and tidal water. In this regard his conclusion that the building complies with the BCA is incorrect.” 70. Ordinarily on might could readily agree with these observations, but the difficulty here is that there are many other issues impacting the site, outside the applicant’s control, rather than just the slab height. Neither Mr Murphy nor Mr Hughes seem to acknowledge, that at the time the house was built, not looking back in hindsight, the only information available to the builder (through Certis) was the RL where the Council “uses high tide levels”.22 71. Mr Morgan, Engineer, agrees with Mr Griffiths that the footing system does comply with the BCA and after 5 years there has been no visible signs of movement of the system. This evidence is consistent with the evidence of Mr Murphy save for the drainage issues. 19 Exhibit 38 page 28 20 Ibid. 21 Exhibit 40 page 5 22 Exhibit 40 attachment 3 -- 15 of 20 -- Q033-05 / Page 16 of 20 72. What emerges from the experts is whether the cause of the flooding is as a result of, not the design or method of construction of the footing system, but the failure of water to drain from the house site. I refer later to the evidence of Mr Max Winders who deals in detail with hydraulic issues. Local Residents 73. A number of the local residents have provided statements. They include:- John Alfred Finglas, of 68 Bayside Drive, Beachmere; Harry Luge, of 333 Bishop Road, Beachmere; Kevin McKinlay, of 349 Bishop Road, Beachmere; Ivan Fien, of 30 Murray Court, Beachmere. 74. Each of these witnesses, are long standing residents of the sub-division which is surrounded by the main drain running between Bishop Road and Bellay Road. As indicated, the Schematic Plan23 identifies the main drain as well as other interconnecting open storm water drains running down the side of various lots including 103 Bellay Road. Mr Bishop’s land and Mr McKinlay’s land back on to the main drain whereas Ms Fien’s land is also boarded by the main drain but it is located in a cul-de-sac which is in effect, an extension of Bishop Road. 75. Mr Luge’s evidence was rather impressive in that he stated when he first built his house at 333 Bishop Road, the main open storm water drain at the rear of his property was wide with a cement base and clean. In fact tidal water would back up the main drain and when his family would come and visit they would swim in the drain. He maintains the area at the back of his house but says when the tidal inflow occurs, water has difficulty exiting the drain through the storm water pipes running under Campbell Road which is at the southern end of the main drain. These pipes are depicted in the photographs24 . Similar evidence was given by Mr McKinlay. 76. Mr Fien commented that he has not experienced any serious flooding on this land but is becoming increasingly concerned because with each significant rain event the backup of water, or the failure of water to discharge through the open storm water system into Deception Bay, is worsening. 77. In respect of the 2009 rain event, Mr Finglas could not access his property at Bayside Drive and walked from the intersection of Minock Road and Bellay Road25 into Christian Drive and down Campbell Parade. He observed a significant body of water down Bellay Drive which included water over the road and into the Second Respondent’s property. 78. Importantly, each of the witnesses confirmed that with the development of the area, including, the turf farm and the sand mine, water that would otherwise be diverted, is now flooding into the sub-divisional area between Bishop Road and Campbell Parade. 23 Exhibit 9 24 Exhibit 12 25 Reference Exhibit 9 -- 16 of 20 -- Q033-05 / Page 17 of 20 79. More problematic, is the open stormwater drain itself. The inspection conducted clearly shows that the drains are filled with silt and mangrove seedlings26 . This is also visible in the numerous photographs that have been tendered. Not only is the storm water system choked with silt, vegetation and mangrove seedlings, but also the principal exit point at Campbell Parade, is either not functioning, or not functioning to capacity. Of the six storm water pipes running underneath the road, only three were working on the day of the inspection with the other three half clogged with silt and sediment. This of course causes a back-up of water in the main drain which ultimately then floods over the road and in a heavy rain event, backs all the way up Bishop Road and Bellay Road. Obviously this was a significant factor in the flooding of the Chamber’s property in May 2009. 80. A similar rain event occurred in 2004 but flooding was not nearly as bad as 2009, from the evidence of these four gentlemen, as the 2009 event. It is apparent, from the evidence given at the commencement of the Hearing by reference to various maps, that there has been a significant increase in development resulting in the disruption of the natural flow of water. I accept, without reservation, the evidence of Mr Finglas, Mr Luge, Mr McKinlay and Mr Fien and I might also say that there was really no serious challenge to their evidence in cross-examination. Moreton Bay Regional Council 81. All witnesses were critical of the then Caboolture Shire Council’s failure to make any effort to maintain the drains. The evidence led in the hearing establishes that this must be so. The Council approved the original sub-division with the open stormwater drainage system but, it seems, for many years have done nothing to maintain this system. 82. As a direct consequence of their failure to maintain, particularly in circumstances where there has been commercial developments approved by it surrounding this sub-divisional area which has significantly contributed to the flooding problems, flooding now occurs in a significant rain event and it seems it is becoming more prevalent. 83. It is quite ironic that since the 1974 Brisbane floods, local authorities in around the environs of Brisbane have taken significant steps to implement flood mitigation schemes whereas at Beachmere, the Council have actively promoted, by its failure to maintain the stormwater drains, the potential for flooding of this small community. The Council is cognisant of the flooding problems in the area and in fact, had been involved in litigation with a local resident, Mr Ward and was ordered by the District Court to pay damages as a consequence of flooding. Clearly the Council’s failure to maintain, at the very least the main stormwater drain running between Bishop Road and Bellay Road, and the storm water pipe under Campbell Rd, has exacerbated the potential for flooding and this much is confirmed in the report from Mr Winders, and the evidence of local residents.27 84. These observations are relevant to the Applicant’s case because, at the time of the its construction in 2003, the Council had not formally identified the subject land in Bellay Rd, according to Certis, as either being in the flood plan, 26 View conducted on 19 October 2009 27 Reports of MWA Environmental dated 8 July 2008 and 27 July 2009 -- 17 of 20 -- Q033-05 / Page 18 of 20 being flood effected or subjected to tidal flooding. As a consequence Demac built to the slab height it did, in compliance with the Council’s requirements. In fact, in the significant 2004 rain event, although there was a significant quantity of water over the land it did not enter the house although, there is evidence that it did enter the weepholes just above the slab level. 85. I might also point out that the Council is conscious of the need to improve the area. Bishop Road, at the time of the Tribunal’s inspection of the subject land, was undergoing a major upgrade. In addition, a new road has been constructed connecting this sub-division via Peel Road to the main Caboolture- Bribie Island Road. 86. This evidence of increase flood propensity for reasons other than the land being “affected by tidal water”, is also supported by the expert evidence of Mr Winders, the only hydrological expert to give evidence at the hearing. He has produced two reports which extensive data about concerning rainfall, tidal movements and historical flood levels in the Beachmere area. This information also includes information available to the Council concerning flood levels. As I have indicated it is abundantly clear that the Council was aware of the potential of flooding well before 2003 and more importantly the increasing susceptibility of the flooding subsequent to 2003, yet did nothing to alleviate this potentiality. His evidence is informative in that he says relevantly that: “extensive development beyond the original catchment of the Main Drain has increased run-off into the Main Drain, above and below the site, to the extent that surcharging, due to the increased flow in the channel during major floods, may well be the cause of the Site being flooded more now than had been expected prior to the planning and construction of the subject house” 87. He also concluded, from an inspection of the subject land within days of the May 2009 event that “major floodwaters were coming from outside subcatchment B5, rather than poor local drainage with B5,” by reason of the development in the surrounding area. 88. Although this evidence does not go to whether the building work undertaken by the applicant is defective, what it does do, is show that even if the house slab had been constructed at RL 2.3m, the house would still be susceptible to flooding, because, he concluded that on the basis of the data presented, the slab would have to be built at RL 3m to ensure proper drainage, and inferentially compliance with the BCA. 89. Mr Winders, quite rightly, suggests that the builder or the owners would not have been aware of issues raised in his reports, or the effects of the changes being made to the land “beyond the site which have exacerbated flooding” of the subject land. It is therefore important that if the Council has special knowledge about whether the land is in a flood plain this information should be readily available to a builder, whether the builder is familiar with the region or not. Has there been defective building work 90. The authority has very deliberately made its decision on the basis that the house as constructed, does not comply with the Building Code of Australia. In -- 18 of 20 -- Q033-05 / Page 19 of 20 that the house as constructed does not permit water to drain away from the house and now the house is susceptible to flooding. 91. The applicant on the other hand asserts that there has been compliance with the BCA because it meets the Australia Standard in terms of structural integrity which, is undoubtedly correct because compliance with the Australian Standard is compliance with the BCA. This does not meant to say that the builder can ignore completely, the terrain or the contours of the land, for instance on a large acreage block, and build a house in the lowest point, in fact in a bowl which would cause the house to flood during rain events this could not be, on any view, good building practice. It seems to me, it is for that reason that the BCA, as is submitted by the authority, does refer to a need to ensure that surface water is disbursed from the building site. A builder can not simply ignore the topography of the land when working with the home owners to choose a building site. 92. However, given that the slab was constructed in accordance with the Council requirements (exclusive of the application of the Policy) and the house site then fell slightly to ward the open storm water drain it would have been reasonable for the builder to assume, provided the slab was constructed to the appropriate height, which it was, that surface water would flow to the drain and be dispersed. 93. It is apparent from these reasons that the cause of the flooding is multifactorial and not solely related to the slab height, or defective building work. Such factors include, lack of maintenance of the stormwater system, tidal surge in rain events, development in the area channelling stormwater into the Bellay Rd area and in combination with all of this the slab height. At the time the subdivision was first developed the evidence from Mr Winders and the residents lead to the conclusion that flooding was not an issue. The evidence to support these conclusions is overwhelming. Conclusion 94. The parties filed in the Tribunal a “Joint Statement of Agreed Facts and Outline of Dispute” which in paragraph 25 identify the primary issues in dispute. Having regard to that document the Tribunal now concludes that: (a) The requirements of the Council at the time of approval was to build the house to an RL of 1.9m; (b) The Council requirements with respect to flooding have been complied with because the Flood Management Policy was not an official Policy demanding compliance and also there is not sufficient evidence to find that the subject land fell within the area “affected by tidal water”; (c) The footing system as constructed complies with AS2870-1996 (d) The applicant has complied with the requirements of AS2870-1996 as it was obliged to do so under the contract. (e) The cause of water inundation is contained in the report of MMWA Environmental and the evidence given by Mr Winders which evidence is accepted and relied upon for the reasons stated. (f) The applicant in reliance on the information provided by the Council and the fact that this was an approved subdivision acted reasonably in construction -- 19 of 20 -- Q033-05 / Page 20 of 20 of the house having regard to the topography of the property and absence of advice FPM. (g) No further action was required to be taken by the applicant. 95. Therefore, in the final analysis I find that the applicant has complied with the Building Code of Australia and the Council requirements as to the slab height. In fact the Council raised no issues with the slab height at the first drainage inspection. The matters complained of in the Direction to Rectify are not as a result of defective or incomplete building work on the part of the applicant. The house as constructed does provide for drainage away from the house but it is other external influences that interfere with the drainage and not the manner in which the slab was constructed. 96. The application is allowed and the Direction to Rectify is set aside. -- 20 of 20 --