Jespersen v Queensland Building and Construction Commission
[2017] QCAT 459
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- Unreported Judgment
- Jespersen v Queensland Building and Construction Commission[2017] QCAT 459
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Jespersen v Queensland Building and Construction Commission[2017] QCAT 459
Jespersen v Queensland Building and Construction Commission[2017] QCAT 459
CITATION: | Jespersen v Queensland Building and Construction Commission [2017] QCAT 459 |
PARTIES: | Jan Jespersen (Applicant) |
v | |
Queensland Building and Construction Commission (Respondent) | |
APPLICATION NUMBER: | GAR284-16 |
HEARD AT: | Brisbane |
DECISION OF: | Member Howe |
DELIVERED ON: | 19 December 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where owner claims defective building work – where Queensland Building and Construction Commission makes decision not to issue direction to rectify to contractor – guidelines under AS3727 – where finding of structural and non-structural defective building work – whether claim by owner to replace entire works unreasonable Queensland Building and Construction Commission Act 1991 (Qld), s 72(5) Queensland Civil and Administrative Tribunal Act (2009) Qld, s 20, s 21(1) Burnett v Fergbilt Pty Ltd [2015] QCAT 328 |
APPEARANCES: | |
APPLICANT: | Self-represented |
RESPONDENT: | Ms E Ward, Inhouse Counsel |
REASONS FOR DECISION
- [1]Mr Jespersen lives in Shailer Park in the Logan City Council catchment area. In October 2015, he engaged Mr Kennedy, a concreter, to lay a concrete driveway.
- [2]Mr Kennedy did the work on 14 December 2015 and Mr Jespersen paid him for the job. Over the period from 30 January 2016 to 15 February 2016, Mr Jespersen wrote to the contractor complaining about cracks in the concrete. Mr Kennedy attempted to rectify some of the problems but not to Mr Jespersen’s satisfaction.
- [3]On 20 February 2016, Mr Jespersen complained to the Queensland Building and Construction Commission (the Commission). There were initially four matters of complaint, which increased to nine on 23 February 2016. The complaints generally concerned cracks in the concrete, spalling, concrete thickness, general finish and a poorly formed post construction control joint.
- [4]On 14 March 2016, Mr Nicolson, a building inspector in the employ of the Commission, carried out a site inspection. Though he observed that there were cracks between 1mm and 2mm wide, there was some spalling and the depth of the concrete was in places less then the requisite 100mm, he determined it was not reasonable that a direction to rectify defective building work be issued to the contractor.
- [5]On 23 May 2016, Mr Jespersen sought internal review of that decision.
- [6]On 15 September 2016, Mr Matthews, another building inspector in the employ of the Commission, carried out another inspection of the property for the purpose of the internal review. Both Mr Jespersen and Mr Kennedy were in attendance.
- [7]Mr Matthews found one crack at the bottom right corner of the driveway near the kerb measured between 1.25mm and 2mm. He noted under Australian Standard AS3727 Guide to Residential Pavements that was outside the permitted tolerance of 1.5mm. He also found the slab, in the area of the crack, was under the recommended thickness of 100mm for light traffic in AS3727. He also found there was spalling and some small loss of aggregate from the surface of the concrete; the distance between control joints was outside the 6m limit at 6.44m; there was some cracking adjacent to or diagonally across the location of the control joints, which meant they were not effectively controlling the cracking; and a control joint cut in by the contractor was not straight.
- [8]Despite that, Mr Matthews concluded that most of the defects were non-structural. In respect of the 1.25mm to 2mm crack near the kerb, though the thickness of concrete was less than recommended and the location and nature of the crack indicated that the corner of the slab was breaking off as a result of pressure, he considered the poor site drainage and saturation of the soil in that area beneath the corner and the likelihood of a truck rolling over the corner early in the drying stage of the slab were all factors that contributed to the excessive crack width.
- [9]The internal review concluded that there were non-structural defects in the work in so far as it did not meet a reasonable standard of construction or finish. The most significant issue was the cracking at the bottom right-hand corner of the driveway. In respect of that issue, the three factors referred to by Mr Matthews were adopted by the reviewing officer who concluded they were outside the control of the licensee. The reviewing officer said that meant the licensee was not entirely responsible for the cracking in the location of the bottom right-hand corner of the driveway. The three factors were the poor site drainage and saturation of the driveway; the likelihood of excessive or early loading on the corner of the driveway; and the reduced thickness of the slab in the location of the crack.
- [10]Given the contractor could not be held entirely responsible for the crack in the corner of the driveway, the decision on the internal review was that it would not be reasonable to issue a direction to rectify defective building work to the contractor.
- [11]An amended review decision was given on 13 July 2017.[1] That concerned the crack at the bottom right corner of the driveway. The decision was amended to note that site drainage appears to have contributed to the cracking and the site drainage was a responsibility of the owner. Given that the owner was therefore partially responsible for the cracking it was unfair to direct the contractor to rectify the defective building work identified in the complaint. This altered finding was most probably based on a realisation that the thickness of the slab in the location of the crack was defective building work and not a factor within the control of the homeowner.
- [12]Mr Jespersen has brought this application in the tribunal to review the internal review decision not to issue a direction to rectify defective building work to the contractor.
- [13]By s 20 of the Queensland Civil and Administrative Tribunal Act (2009) (Qld), the tribunal hears and decides the review by way of a fresh hearing on the merits so as to produce the correct and preferable decision. In the review the decision-maker for the reviewable decision must use their best endeavours to help the tribunal make its decision on the review.[2]
The Complaints
- [14]The first matter for consideration is whether all or any of the complaints about defective building work are made out.
- [15]There are three inspection reports made by officers of the Commission available for the consideration of the tribunal.
- [16]The first by Mr Nicolson dated 23 March 2016 referred to cracks of 1mm to 2mm maximum in the driveway concrete, which is unhelpful given that the performance criteria outlined in AS3727 specifies that within a period of one year after construction of the driveway there should not be any cracks greater than 1.5mm in width. He identified at least two cracks of 2mm width, one near the right corner of the garage and the other at the bottom right corner near the kerb. He also saw some spalls in the concrete.
- [17]He noted Mr Jespersen wanted an entire section 7 metres by 2 metres near the garage taken out and re-laid. He considered that unreasonable.
- [18]The second report by Mr Matthews was dated 29 September 2016. In that report he says he saw a number of cracks but only one crack with a gap varying from 1.25mm to 2mm and that was the one at the bottom right corner of the driveway. The bigger crack near the garage appeared to have closed and at the time of his inspection only measured 0.75mm.
- [19]He said the concrete was only 80mm thick at the site of the big crack and also at some other places at the driveway but generally the slab was performing as expected. The reduced thickness was therefore technically a defect but not affecting the structural integrity of the driveway. He also observed some spalling but did not refer to it as significant. He measured the distance between control joints as 6.44m, which was outside the AS3727 requirements. He considered the concrete strength of the slab, which was 25Mpa, to be appropriate for a driveway. He noted that the soil was highly reactive to moisture and a sub-base might have been appropriate but the driveway was performing as expected without a sub-base. A crooked cut control joint was a visual defect but not structural.
- [20]Generally, he thought the defects were minor only and did not warrant the rectification insisted on by Mr Jespersen of replacement of an entire section of the driveway.
- [21]The final inspection report was that by Mr Ferguson, yet another inspector, dated 25 June 2017. He measured the crack near the garage at 1.7mm 60mm in from the edge of the slab falling to 1.25mm 200mm from the edge. He measured the crack at the bottom of the corner of the driveway at 2.5mm.
- [22]Given the concrete was laid on 14 December 2015, applying AS3727 the width of the cracks in the driveway should, strictly speaking, be assessed as at 14 December 2016, which means Mr Ferguson’s observations are outside the one-year mark. However, Mr Nicolson observed the one near the garage in excess of 1.5mm during the period of one year. I conclude the cracking near the top of the garage and the bottom of the driveway amount to defective building work on the basis that their presence during the period of one year indicates unacceptable performance of the concrete based on AS3727 criteria.
- [23]The inspectors all saw other cracks less than 1.5mm width. Mr Jespersen maintains cracks exceeding .3mm represent defective building work, not the 1.5mm figure referred to in AS3727. He refers to a decision in this tribunal[3] where expert engineering witnesses said AS3727 was “deficient with respect to criteria appropriate for the design and assessment of decorative concrete pavements”.[4]
- [24]That matter involved a dispute between owner and builder and turned on contractual and statutory warranties and the concrete laid there was described as “decorative concrete pavement.”[5] Just what that means is not explained in the decision. The concrete is described as having “excessive cracking across 22 separate locations, and in several locations concrete is breaking up with looser pieces of concrete coming away.”[6] The experts there agreed the pavement was deficient pursuant to AS3727 in relation to the control joint spacing for highly reactive soils Class H, the control joint saw cut depths which exceeded the maximum and the absence of isolation joints.
- [25]The decision goes on to say the experts agreed the pavement “jointing” should have been designed and constructed along the lines of a certain plan referred to but which is not disclosed in the decision. The experts also apparently agreed that Australian concrete standards are based on limiting cracks to 0.3mm or less “in order to achieve a consistent alkaline passivation layer to afford protection of steel reinforcement from corrosion.”[7] It is not clear what the experts there were referring to, given the issue was predominantly about control joints. But given AS3727 is an Australian Standard prepared by committee and amongst the other groups and organisations that contributed to the standard was the Association of Consulting Engineers, I am not prepared to exclude the Standard as published as the appropriate criteria in the matter at hand.
- [26]I conclude the expert evidence in that case most probably turned on the case’s particular circumstances and facts. The Commission’s three building inspectors considered AS3727 the relevant standard and they accepted that crack widths greater than 1.5mm were unacceptable performance criteria for the assessment of the slab, not 0.3mm.
- [27]There is no issue between the parties that there is defective work associated with the concrete driveway.[8] There is some spalling around minor shrinkage cracks and saw cuts, and there is at least one crack over 1.5mm in width[9] and the control joints are too far apart, all such factors being outside the performance criteria for pavements set by AS3727. Overall however, the inspectors considered the finish acceptable.
- [28]There are some matters of complaint raised by Mr Jespersen however, which he maintains amount to defective building work but the Commission says does not. One is the strength of concrete used. Another is the contractor’s failure to compact the soil and add a sub-base before pouring the slab. Finally, there is a claim that the contractor failed to construct the driveway to council requirements and he should have done.
Strength of Concrete Used
- [29]Mr Jespersen says Australian Standard AS3600 Australian Standard Concrete Structures should apply rather than AS3727 and the former specifies higher strength concrete than that used by the contractor.
- [30]Mr Matthews pointed out AS3600 states at clause 1.1.3 that the Standard does not take precedence over design requirements and material specifications set out in other Australian Standards that deal with specific types of structures. An example given is residential slabs and footings and swimming pools. Mr Matthews says AS3727 Guide to Residential Pavements is such a standard that should take precedence where residential driveways are concerned.
- [31]In AS3727 at clause 8.1(a), it is stated that the construction requirements of AS3600 should apply except where indicated otherwise. Then there appears Table 2 which specifies typical concrete pavement specifications for residential applications. There are different specifications that follow for foot and bicycle traffic and light and medium traffic. Light traffic is defined in clause 3.14 to be unrestricted operation of vehicles with a gross mass not exceeding 3 ton. Medium traffic covers vehicular use with vehicles up to 10 ton.
- [32]I conclude AS3727 is the appropriate standard for use in connection with residential concrete driveways such as the one here and AS3600 gives way to it as the more appropriate particular standard that should apply. I find the concrete strength was appropriate here.
Failure to Compact the Soil and Add a Sub-Base
- [33]Mr Jespersen says the soil at the property is highly reactive, clause 4.2 of AS3727 says pavement design in the standard are based on good sub-grades, clause 8.2 of AS3727 states a sub-base may be necessary for reactive soils, and therefore Mr Kennedy was obliged to put that in before pouring the slab.
- [34]It appears Mr Jespersen knew the soil classification was highly reactive, but it is far from clear that he told Mr Kennedy that. Indeed Mr Jespersen asserts Mr Kennedy’s knowledge in that regard is to be presumed because Mr Kennedy lives in the Logan City Council area.
- [35]There is no evidence before me that Logan City Council is an area entirely comprised of highly reactive soils. I would be most surprised if such a large local government area was not comprised of many different soil types, including reactive soils. Nor do I have any evidence about the soil type at Mr Kennedy’s home, if that was conceivably relevant, which it is not, nor whether he knew about particular Logan City Council reactive soil areas. I have no evidence that Mr Kennedy does most of his concreting in the Logan City Council area, which Mr Jespersen’s assertion assumes.
- [36]I assume in turn that Mr Jespersen had his home built rather than purchased it as an existing constructed dwelling, based on the photographic material he supplied the tribunal. As such, he should have had the relevant soil test information to hand for his property. He did not supply that information to Mr Kennedy. There is no evidence that the contractor knew the soils were highly reactive other than a somewhat vague recollection of Mr Jespersen that the word “reactive” was mentioned some time prior to the job being done.[10] He could put it no higher than that however.
- [37]I conclude the contractor was not aware the soil was highly reactive and he therefore cannot in hindsight be held responsible for not putting in and compacting a sub-base.
Council Requirements
- [38]Mr Jespersen also says the local government regulations concerning crossovers applied and the performance requirements set by council were not met by the builder. But whether or not those performance standards were met is irrelevant because the council will not give approval to such construction where no approval for the work was sought and obtained beforehand.
- [39]The responsibility for obtaining prior approval for such work rested with Mr Jespersen as property owner.
- [40]The proposal must be that the crossover part of the driveway from kerb to property line should be demolished to allow Mr Jespersen to now, in hindsight, apply for and obtain the council approval he should have sought before entering into the contract with the contractor.
- [41]The only information about council requirements is a generic copy of a drawing described as RS-050 which Mr Jespersen says shows the required design. No other information about council requirements was tendered. There is no evidence from the council itself about either the adequacy of the construction of the crossover nor the council attitude to the final product.
- [42]Note 1 to RS-050 states “All appropriate permits must be obtained from relevant council, specifying crossover type, construction materials, location, levels, surface finishes and dimensions, prior to any excavation.”
- [43]I am hesitant, on the very limited information presented, to find the contractor failed to adhere to the necessary design requirements in respect of the crossover part of the driveway. I conclude it is unnecessary to finally determine the issue however given my conclusions about the reasonableness of the claim for rectification that now address.
Unfair to the Contractor
- [44]By s 72(5) of the Queensland Building and Construction Commission Act 1991 (Qld), the Commission is not required to give a direction to a contractor if the Commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction.
- [45]
- [46]Council performance requirements for crossovers formed no part of the work Mr Jespersen asked Mr Kennedy to perform at the property. Even if he had, and even if the contractor had built the crossover area in accordance with the claimed council requirements, there is no evidence that the approval Mr Jespersen says he cannot obtain because of the contractor’s failure to adhere to council construction standards would have been forthcoming. It seems clear that without prior approval the council would not approve it anyway. That prior approval was the responsibility of Mr Jespersen.
- [47]If the construction at the crossover was done again it would undoubtedly cost significantly more than Mr Jespersen paid in respect of the crossover area. That is unfair on the contractor and such direction would represent an unwarranted and I suspect significant cost benefit unreasonably accorded to Mr Jespersen.
- [48]There is no evidence to suggest the council will require Mr Jespersen to demolish or alter the existing crossover.
- [49]There is no issue between the parties that there is some defective work.[13] There is some spalling around minor shrinkage cracks and saw cuts, the control joints are too far apart, and the thickness of the concrete appears to be undersized in places. All of those things are outside the acceptable performance criteria and specifications for pavements set by AS3727 as measured within 12 months of construction, but from the observations of the Commission inspectors they have not affected the structural integrity of the driveway. I accept that is the case.
- [50]A sub-base would have been better however again generally the driveway is performing as expected without. The crooked cut control joint is a visual defect only, not structural. Again I accept that evidence from the inspectors.
- [51]There is one crack that exceeds 1.5mm in width[14] at the bottom of the driveway and another at the top of the drive near the garage. The latter appears to expand to a width greater than 1.5mm at times and retract to under that width at other times. Mr Matthews said at hearing that the crack at the top of the drive could increase and decrease depending on the moisture content of the soil under the slab. He says there is no stepping of the slab however which would be the case if the crack was all the way through which would make it a structural issue. He only saw the crack when it was under 1.5mm. He accepted at under 1.5mm it was an aesthetic problem only. I accept his evidence and conclusions about that.
- [52]The situation is different with respect to the crack at the bottom of the driveway. Here, the crack is accepted by all observers to be in excess of 1.5mm. The concrete is under thickness at this point based on AS3727. However there is, according to the inspectors, also a significant drainage issue which contributes to the problem and the possibility of mechanical damage caused by a vehicle driving over the corner of the slab before the concrete had fully set.
- [53]When Mr Nicolson inspected the works in March 2016, he observed poor drainage at the junction of the driveway edge and the kerb, softened soil because of water penetration there and excessive flexibility of the concrete at the site of the crack. He noted cracking and excessive movement at the corner of the slab when pressure was applied.
- [54]There is a suggestion by the inspectors that a truck could have driven over the corner of the slab before final setting but Mr Jespersen says he had roped off the end of the driveway and the area was still roped off to prevent access on 30 December 2015, more than 2 weeks after the job was done. I accept Mr Jespersen’s evidence that the area was roped off for that period and therefore the truck contributory factor is unlikely. I also accept the evidence of Mr Nicolson however that the area of the junction of the driveway with the kerb allowed water penetration to the soil near and under the slab causing softening of the soil under the slab. I conclude the slab has cracked at the bottom of the driveway because the slab is under thickness at that site and because of water penetration to the soil beneath, causing swelling, upheaval and cracking to the slab at this location.
- [55]The contractor offered to cut the concrete at some places near the garage to alleviate tension and to repair spalls and fill some of the minor cracks. Mr Jespersen refused that offer. He now requires nothing less than full slab replacement.
- [56]That is unreasonable. I find that despite some non-compliance with AS37727, overall the slab is structurally sound save for the bottom corner near the kerb. It would be appropriate for the contractor to be required to rectify that defect, however Mr Jespersen does not accept that remedy. His demand for full replacement is unreasonable in the circumstances and accordingly it is unfair to direct the contractor to rectify defective building work with that remedy in mind. His application must therefore be dismissed.
Footnotes
[1] Following a compulsory conference between the parties and a direction by the tribunal that the Commission reinspect the relevant work.
[2] S 21(1) QCAT Act.
[3] Burnett v Fergbilt Pty Ltd [2015] QCAT 328.
[4] Ibid, [54].
[5] Ibid, [46].
[6] Ibid, [2a].
[7] Ibid, [52].
[8] Transcript, 1-18 Line 8.
[9] Ibid, 1-68 L20.
[10] Ibid, 1-95 L43.
[11] T1-91 L33.
[12] T1-91 L9.
[13] Transcript, 1-18 Line 8.
[14] Ibid, 1-68 L20.