Jackson v Queensland Building and Construction Commission
[2016] QCAT 434
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- Unreported Judgment
- Jackson v Queensland Building and Construction Commission[2016] QCAT 434
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Jackson v Queensland Building and Construction Commission[2016] QCAT 434
Jackson v Queensland Building and Construction Commission[2016] QCAT 434
CITATION: | Jackson and Evans v Queensland Building and Construction Commission [2016] QCAT 434 |
PARTIES: | Sally Jackson and Glenn Evans (Applicants) |
v | |
Queensland Building and Construction Commission (Respondent) | |
APPLICATION NUMBER: | GAR147-15 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 10 June 2016 |
HEARD AT: | Townsville |
DECISION OF: | Member Pennell |
DELIVERED ON: | 1 November 2016 |
DELIVERED AT: | Townsville |
DECISION MADE: |
|
CATCHWORDS: | ADMINISTRATIVE REVIEW – principles applied administrative reviews – fresh hearing on the merits – building work – decision not to issue a direction to rectify defective building work – rectification of building work policy – unfair to issue direction to rectify – whether decision not to issue a direction was reasonable – evidence – natural justice principles – rules of evidence Queensland Building and Construction Commission Act 1991 (Qld), s 72(1), s 72(2), s 72(3), s 72(5), s 72(8), s 72(14), s 72A(4), s 86(1)(e) and Schedule 2. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18, s 19(c), s 20, s 20(1), s 20(2), s 24(1), s 28(2), s 28(3)(a), s 28(3)(b), s 28(4) and s 95. |
Briginshaw v Briginshaw (1938) 60 CLR 336. Stephen Sadd v Queensland Building Services Authority QR 058-06. Peter and Christine Stephenson v Queensland Building Services Authority QR 056-04. Dixon Projects Pty Ltd v Queensland Building Services Authority [2009] QCCTB 2. Kitchen Plus (Nerang) Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 084. The King v War Pensions Entitlement Appeal Tribunal; ex-parte Bott (1933) 50 CLR 228. Younan v Queensland Building Services Authority [2010] QDC 158. Century Metals and Mining NL v Yeomans (1989) 40 FCR 564. Bushell v Repatriation Commission (1992) 175 CLR 408. |
APPEARANCES and REPRESENTATIONS: | |||
APPLICANTS: | Self Represented by Mr G Evans | ||
RESPONDENT: | Mr S P Formby, Counsel for the Respondent | ||
REASON FOR DECISION
Introduction
- [1]Sally Jackson and Glenn Evans (“the Applicants”) live on Magnetic Island. The Respondent is the Queensland Building and Construction Commission (“the Respondent”).
- [2]In March 2012, the Applicants engaged Robert Selwood Pty Ltd trading as Ferngold Homes (“the Builder”) to construct a dwelling at Magnetic Island (“the dwelling”). The dwelling was completed by 22 October 2012 and a final inspection certificate issued on 5 October 2012.
- [3]The dwelling is a high set home on steel posts with a concrete slab on the ground. The lower story of the dwelling is of full height and the Applicants use the lower story for commercial as well as domestic purposes. The Applicants intend to enclose the lower story at some time in the future. After the dwelling was completed, the Applicants noticed things about the concrete slab that made them suspicious as to its quality and hardness.
- [4]In April 2013, they lodged a complaint with the Respondent about the concrete slab. The Respondent carried out an inspection and informed the Applicants that the slab was performing and was not affecting the structural performance of the dwelling or the health and safety of its occupants. The Applicants initially accepted those findings.
- [5]In September 2014, the Applicants wrote to the Respondent saying that despite initially accepting the Respondent’s earlier findings, there continued to be a deterioration in the slab.[1] The Applicants complained that the core compressive strength of the concrete slab was lower than the contractually specified minimum of 25 MPa.
- [6]On 17 November 2014, the Respondent’s Building Inspector[2] inspected the dwelling. He later completed a report on his findings. It was the Building Inspector’s determination[3] that there was no evidence of a defect. The Respondent also commissioned an independent inspection of the dwelling by LCJ Engineers, who produced a report[4] relating to the concrete slab. The report by LCJ Engineers concluded that the slab was not understrength, it was fit for its purpose, the functional use of the dwelling was not adversely affected and it was not affecting the health and safety of the occupants.
- [7]On 22 December 2014, the Respondent informed the Applicants that there was no defect and that no direction would be issued to the Builder to rectify any defects.[5] The Applicants disagreed with that decision and requested that the Respondent undertake an internal review of the decision. As part of the internal review, the Respondent commissioned Hughes Beal & Wright Pty Ltd Consulting Engineers to investigate the slab, including the sampling and strength testing of core samples from the slab. Mr Wright of that company undertook the investigation. In his report, his conclusion with regard to the strength of the concrete slab was that the slab was fit for its purpose.[6]
- [8]Having regard to the results of the investigation carried out by Hughes Beal & Wright Pty Ltd Consulting Engineers, the Respondent informed the Applicants that the internal review had been undertaken and the decision not issue a notice to rectify remains unchanged.[7]
What the Applicant seeks
- [9]The Applicant sought a review of the Respondent’s decision[8] pursuant to the Queensland Building and Construction Commission Act 1991 (Qld) (“the QBCC Act”) and wants the decision made on 22 December 2014 not to issue a direction to rectify to the Builder set aside.
Review Jurisdiction
- [10]A person affected by a reviewable decision may apply, as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld)[9] (“the QCAT Act”) to the Tribunal for a review of that decision. The Tribunal must hear and decide the review by way of a fresh hearing on the merits of the application.[10]
- [11]The purpose of the review is to produce the correct and preferable decision.[11] In carrying out its functions to produce the correct and preferable decision, the Tribunal may either confirm or amend the decision; or set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision maker, with any directions the Tribunal considers appropriate.[12]
- [12]In exercising its role under the QCAT Act, the Tribunal stands in the position of the Respondent.[13] The Tribunal must also consider the competing interests of the parties involved and factors, for example, the cause of the defective building work, if any.
- [13]In exercising its discretion, the Tribunal must consider all the evidence, including the circumstances raised at the Tribunal hearing.[14] Finally, in determining this matter, for a decision to be made to issue a direction to rectify, the Tribunal must be satisfied that there was defective building work, and in all the circumstances, the question must be asked, is it reasonably necessary for the Tribunal to exercise its discretion to have the notice to rectify issued?[15]
Discussion
- [14]The Applicants relied upon several issues which they said were deciding factors why there should have been a notice issued to the Builder by the Respondent to have the defects in the concrete slab rectified.
Density of the slab
- [15]The Applicants contended that the slab did not comply with the acceptable standard of hardness. To demonstrate their concern, they took core samples from the slab, which they had examined. The Applicants followed instructions given to them with respect to the appropriate handling of the samples.
- [16]The samples were wrapped in wet cloth and placed into a plastic bag then transported to Townsville and delivered to Soil Engineering Services for testing. The Applicants later received a Core Compressive Strength Report for the samples.
- [17]In total, there were three Core Compressive Strength Reports provided to the Tribunal. The first report[16] was provided to the Respondent by the Builder. This report was completed by Soil Engineering Services of Townsville and it related to three core samples taken from the slab on 31 May 2012. One core sample was tested on 7 June 2012 and the other two tested on 28 June 2012. The compressive strengths (MPa) of the samples were 22.0, 29.0 and 30.0. The was no evidence provided to the Tribunal of exactly where on the slab the core samples were taken from, or how the samples were kept before they were tested.
- [18]The Second Core Compressive Strength Report[17] was also provided by Soil Engineering Services of Townsville. This related to three core samples taken from the slab by the Applicants on 30 August 2014. The samples were tested three days later. The compressive strengths (MPa) of the samples was indicated as 9.0, 9.3 and 9.8.
- [19]The third report related to five core samples taken on 21 April 2015 from the slab by a concrete coring contractor engaged by Hughes, Beal and Wright Pty Ltd. Those samples were taken from the slab in areas close to where the Applicants had previously removed their own core samples. Three of those samples were forwarded to the Cement Australia Laboratory in Darra for testing. The compressive strengths of the samples tested indicated the MPa as 14.9, 15.6 and 16.0. The average strength of these core samples was about 65% higher than the average of the result of the core samples carried out on the samples taken by the Applicants.
- [20]The Applicants believed that the slab was deteriorating, it was substandard, it had discoloration and it was under strength. However, they did not have any evidence from an engineer or other suitably qualified person to support their suspicions or observations. The only evidence they possessed was a video recording of a stick being rubbed on the concrete slab showing the concrete being able to be eroded by that motion.
- [21]The evidence presented to the Tribunal by Mr Wright[18] made it clear that the concrete in the slab had not reached the design 25 MPa strength. The decision as to whether it was fit for its purpose can be determined from a position of putting the design requirements to one side, and then considering other factors that are going to influence the performance of the slab. For example, the site conditions, what purpose is the slab going to be used for in the future, and in this case, the possibility of putting walls on top of the slab.
- [22]There was an acknowledgement by the Respondent that the MPa strength of the slab did not conform with the design specification of 25 MPa. Despite this, the first issue to be considered is whether the slab is defective building work, and if so, what category defect is it. If the conclusion is that there is a defect identified, should the Respondent issue the Applicant with a notice to rectify that defect.
Visible cracking of the slab
- [23]The Applicants said that there was noticeable cracking of the slab. They argued that because the slab was designed as part of a termite management system and the cracks were wider than 1mm in places, it was further evidence that the slab was structurally defective and there was now a termite management issue.[19]
- [24]Part 2.11 of the Queensland Building and Construction Commission Standards and Tolerances Guide provides that where a domestic concrete slab forms part of a termite protection system and that domestic concrete slab is designed in accordance with the Building Code of Australia, and it is to act as part of a termite management system, cracks through the slab are not to exceed Category 1 or one millimetre in width as set out in table 2.10.
- [25]When specifically asked as to where was the evidence in their case that the cracking extended the entire depth through the slab, the Applicants conceded that there was no evidence of this. The Tribunal accepts that the Applicants could articulate their observations about the cracks, that is the cracks could be seen, however there was no evidence provided to the Tribunal to confirm whether the cracking went entirely through the depth of the slab.
- [26]The Respondent commissioned LCJ Engineers to carry out an inspection of the concrete slab. In its report, LCJ Engineers found that the cracks in the slab were shrinkage cracks and they were measured to be one millimetre or less in width. Being guided by Table C2 of the standard AS2870-2011, the cracking was determined to be Category 1, very slight. The cracks were not considered to be a structural problem.[20]
- [27]Without the Applicants having the benefit of evidence to refute the findings of LCJ Engineering, the Tribunal rejects their suggestion that cracking of the slab has rendered the slab structurally defective, and it has led to a termite management issue.
Ability of the slab to hold down or support a structure
- [28]The Applicants suggested that there was no real evidence from the Respondent that the concrete slab was strong enough to support and hold down any structure. This concerned the Applicants if they decided to enclose the underneath section of the dwelling. They said that concrete with the MPa strength, similar to what had been determined by the testing of the core samples,[21] would not hold down a structure in a cyclone. Notwithstanding those concerns, there was an admission by the Applicants that they did not have any evidence to support those suggestions.
- [29]The Respondent demonstrated to the Tribunal evidence contrary to the Applicants’ suggestions. That evidence came from Mr Wright, a registered professional engineer with 40 years experience in the field of structural and geotechnical matters. He told the Tribunal that in its current use, the construction of the slab was fit for its purpose, despite it not conforming with the design specifications of 25 MPa.[22]
- [30]Mr Wright went on to tell the Tribunal that any future installation of any structure to enclose the underneath section of the dwelling would not be affected. The slab would be fit for that purpose. His testing of the strength of the slab placed it slightly above 15 MPa. Any concrete Besser block work laid on the slab would have a similar MPa and it was not as though the slab beneath the Besser blocks would be significantly weaker than the blocks themselves.
- [31]Mr Wright added that if the structure was a timber frame wall, this would place less weight on the slab and his opinion so far as the slab being fit for purpose would be the same.[23]
- [32]With respect to the slab not being able to withstand the forces applied to it during a cyclone, Mr Wright said that in a cyclone, it was not so much a strength issue for a slab to hold a structure down, but it was the mass effect when applying any potential uplift from the wind. In his words, he said it was “just straight out gravity”. Even a slab with a density of five MPa would have sufficient tie down capability to stop the steel posts pulling out of the concrete.[24] Even a very weak concrete of which had a low MPa strength of two or five MPa would be sufficient to engage enough of the slab and the footings to keep the building anchored against cyclonic uplift forces.[25]
The ability of the slab to withstand soil movement
- [33]The Applicants were concerned about the ability of the concrete slab to withstand soil movement. They said that they had seen no real evidence from the Respondent that the concrete slab was strong enough to withstand any soil movement that may occur in the future. Seeking certainty on this issue, they quoted the comments of Mr Wright in his second report where he said –
"….the concrete slab will generally not be exposed to any forces from differential ground movement that will cause it to bend. Hence strength is not as significant an issue as it would be in the case of the slab on an H or E site where the slab might be subjected to significant bending from differential ground movement".[26]
- [34]The Applicants were unable to provide evidence to the Tribunal contrary to the evidence given by Mr Wright. The Tribunal accepts Mr Wright’s evidence that the ground upon which the slab sits is very stable, it has a deep deco granite base, the dwelling was constructed in a stable place and the concrete slab is not deforming. The alternative hypothesis put forward by the Applicants is rejected.
The durability of the slab
- [35]Concrete is not a short-term building product. A concrete slab is designed to be built strong enough to withstand the elements and therefore should be a long-term product. The Applicants suggested that the slab was softer below the soil line; it has become stained and has suffered differential colouring near its surface.
- [36]The Applicants also suggest that the slab is defective because there is an existing durability issue with the concrete slab. They said that the Respondent gave this subject very little acknowledgment.
- [37]The Applicants told the Tribunal that they accepted that there was no official standard with regards to staining and nor did they obtain an engineer’s report or other evidence such as a chemical assessment to qualify what was the cause of the staining. They accepted that although there was staining, the slab was performing adequately.[27]
Issues considered
- [38]In reviewing the Respondent’s decision, the issues for the Tribunal to determine were:–
- (a)Was the work building work?
- (b)If so, was the work defective?
- (c)Was the Respondent’s decision not to direct the Builder to rectify the building work reasonable in the circumstances?
- (d)Would it be unfair for the Respondent to give the Builder a direction to rectify?
Was the work building work?
- [39]The Tribunal was required to examine whether the work carried out by the Builder was building work. Building work is defined in the QBCC Act.[28] There is no dispute between the parties that the work complained about was the erection or construction of a building as defined in the QBCC Act.
Was the work defective work?
- [40]The definitions for defective building Category 1 and defective building work Category 2 are defined in the Respondent’s Guideline Policy.[29]
- [41]Category 1 is defective building work (other than residential construction work according subsidence) that is faulty or unsatisfactory because it – :
- (a)adversely affects the structural performance of the building;
- (b)adversely affects the health or safety of persons residing in or occupying the building;
- (c)adversely affects the functional use of a building; and
- (d)allows water penetration into the building.
- [42]Category 2 defective building work means defective building work (other than Category 1 defective building work or residential construction work causing subsidence) that is faulty or unsatisfactory because it –
- (a)does not meet a reasonable standard of construction or finish expected of a competent holder of a contractor’s licence of a relevant class; or
- (b)it has caused a settling in period defect in a new building.
- [43]The Tribunal heard competing arguments from the parties and has been provided with evidence from two separate engineering companies who undertook separate investigations into the Applicants’ concerns. The Tribunal accepts the evidence of those engineers that the slab was not defective.
Was the Respondent’s decision not to issue a direction to the Builder to rectify the defect reasonable?
- [44]Before determining if it was a reasonable decision not to give the Builder a direction, the Tribunal must first consider whether the defects complained of are defects, and if so, whether they are a Category 1 or Category 2 defects.
- [45]Section 72(1) of the QBCC Act provides a discretionary power for the Respondent to give a direction to rectify defective or incomplete work. For a Category 1 defect, a direction cannot be given more than 6 years and 3 months after the building work to which the direction relates was completed, unless the tribunal is satisfied on application by the Commission,[30] that there is in the circumstances sufficient reason for extending the time for giving a direction.[31]
- [46]For a Category 2 defect, the Applicant bears the onus notifying the Respondent of that defect no later than six months after the building work was completed, or within seven months if the owner notified the builder of the defect within six months after the building was completed.
- [47]Having regard to the evidence, the Tribunal is not satisfied that there is sufficient evidence to show that any of the issues complained of by the Applicants qualifies a defect in the building work so as to warrant the issuing of a rectification notice to the Builder.
Unfair to give direction
- [48]When contemplating the giving of a direction to rectify, the Respondent is required to have regard to the Rectification of Building Work Policy.[32] When relating that policy to this matter, it is expressed to be a guideline policy for the Builder who carried out either category 1, or category 2 defective building work, and the Builder should be required to rectify that defective building work, except in circumstances where a direction for that rectification would be unfair.
- [49]The unfairness discretion is one that must be considered in all the circumstances that are known to the decision maker at the time the decision is being made.[33] The need for proper deliberation regarding the potential for unfairness in any proposed direction to rectify must not be overshadowed by mere incantations about the need to safeguard industry standards. If that were permissible, then the discretion as provided within the QBCC Act[34] would never have been included by the legislature.[35]
- [50]The Applicants argument is that it would not be unfair to issue the direction to rectify. The slab was not constructed to the required MPa specifications. The Respondent accepts that argument. Notwithstanding that, the legislation provides[36] that if the Respondent believes the building work was defective, the Respondent may direct the Builder rectify the building work. In deciding whether to give the direction, the Respondent may take into consideration all the circumstances it considers are reasonably relevant.
- [51]To validate their decision not to issue a direction to rectify to the Builder, the Respondent relies upon the evidence gathered by LCJ Engineers and Hughes Beal & Wright Pty Ltd Consulting Engineers during the investigation into the complaint. Their findings suggest that the slab is fit for its purpose and has no defects, and which findings have not been rebutted by the Applicants.
Findings
- [52]Notwithstanding the variances in the results of the MPa tests undertaken on the core samples, the Tribunal is satisfied that there is no justification for the Respondent to issue the Builder with a notice to rectify the concrete slab, which has been determined on the evidence to be fit for its purpose.
DECISION
- [98]Considering all the circumstances of this matter, the Tribunal is satisfied that it would be unfair and unreasonable for a direction to rectify be issued to the Builder. The Tribunal is further satisfied that the correct and preferable decision is to confirm the Respondent’s decision dated 24 December 2014 to refuse to issue a direction to rectify to the Builder in respect of the items that are the subject of this review.
- The decision of the Queensland Building and Construction Commission dated 24 December 2014 not to issue a Direction to Rectify within the meaning of section 72(1) of the Queensland Building and Construction Commission Act 1991 to Robert Selwood Pty Ltd trading as Ferngold Homes is confirmed.
- The Applicants’ application is dismissed.
Footnotes
[1] Exhibit 7. Respondent’s Statement of Reasons at “SOR-3”.
[2] Mr Kevin Cameron.
[3] Exhibit 7. Respondent’s State of Reasons at “SOR-7”.
[4] Ibid at “SOR-6”.
[5] Ibid at “SOR-8”.
[6] Ibid at “SOR-9”.
[7] Ibid at “SOR-10”.
[8] Queensland Building and Construction Commission Act 1991 (Qld) s 86(1)(e).
[9] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 18.
[10] Ibid s 20(2).
[11] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(1).
[12] Ibid s 24(1).
[13] Ibid s 19(c).
[14] Stephen Sadd v QBSA QR 058-06; Peter and Christine Stephenson v QBSA Q056-04 and Dixon Projects Pty Ltd v QBSA [2009] QCCTB 2 (8 January) at [26].
[15] Dixon Projects Pty Ltd v QBSA [2009] QCCTB 2 (8 January) at [27].
[16] Exhibit 7. Statement of Reasons at Annexure “SOR-4”, pages 10 and 11.
[17] Exhibit 7. Statement of Reasons at Annexure “SOR-4”, page 12.
[18] Transcript of Proceedings at page 77, lines 22 to 30.
[19] Applicant’s Statement of Evidence filed 29 October 2015 at page 4.
[20] Exhibit 7. Statement of Reasons at Annexure “SOR-6”, Structural Report by LCJ Engineers.
[21] Separate tests undertaken by Soil Engineering Services, Townsville and Cement Australia Laboratory, Darra.
[22] Transcript of Proceedings at page 72, lines 8 – 13.
[23] Transcript of Proceedings at page 70, lines 4 – 30.
[24] Ibid at page 77, lines 41 – 47.
[25] Ibid at page 78, lines 31 to 38.
[26] Exhibit 8. Respondent’s Statement of Evidence, attached and marked “SOR-12” at paragraph 14.
[27] Transcript of Proceedings at page 29, lines 17 – 24.
[28] Queensland Building and Construction Commission Act 1991 (Qld), Schedule 2 – Dictionary.
[29] Exhibit 7. Statement of Reasons at “SOR-1”.
[30] Queensland Building and Construction Commission Act 1991 (Qld), Schedule 2 – Dictionary defines Commission as being the Queensland Building and Construction Commission.
[31] At the time of the making of the decision subject to these proceedings, that discretion was provided in the Queensland Building and Construction Commission Act 1991 (Qld) at s 72(8). Subsequent amendments to the Queensland Building and Construction Commission Act 1991 (Qld) now place to provision at s 72A(4) of that Act.
[32] Rectification Policy.
[33] Queensland Building and Construction Commission Act 1991 (Qld) s 72(1).
[34] At the time of the making of the decision subject to these proceedings, that discretion was provided in the Queensland Building and Construction Commission Act 1991 (Qld) at s. 72(14). Subsequent amendments to the Queensland Building and Construction Commission Act 1991 (Qld) now place to provision at s. 72(5) of that Act.
[35] Kitchen Plus (Nerang) Pty Ltd c QBCC [2014] QCAT 084.
[36] Queensland Building and Construction Commission Act 1991 (Qld) s 72(1), (2) and (3).