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Studio 1 Build Pty Ltd v Queensland Building and Construction Commission QCAT 441
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Studio 1 Build Pty Ltd v Queensland Building and Construction Commission  QCAT 441
STUDIO 1 BUILD PTY LTD
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
General administrative review matters
19 December 2018
14 September 2018
The Direction to Rectify dated 18 May 2017 is confirmed.
PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where application made to review a decision under the Queensland Building and Construction Commission Act 1991 (Qld) to review Direction to Rectify – whether building work defective
Queensland Building and Construction Commission Act 1991 (Qld), s 72(3), s 72(5), s 86(1)(e), s 87
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24
APPEARANCES & REPRESENTATION:
P Baggalay, Manager Studio 1 Build Pty Ltd
E Ward, legal counsel of the Queensland Building and Construction Commission
REASONS FOR DECISION
- In 2015, the Applicant, Studio 1 Build Pty Ltd (‘Studio 1’), constructed a three level townhouse development at 34 Taunton Street Annerley. It comprised 5 units and the renovation of an existing timber weatherboard dwelling at the front of the site.
- Taunton Street is very steep, running from Ipswich Road down into a gully. Number 34 falls sharply from left to right (east to west) as viewed from Taunton Street. The units at number 34 comprise 3 levels, and construction required the ground level of the units, being the garages, to be cut into the slope some 3 meters. That meant the garages were effectively below the natural ground level. Next door, at 30 Taunton Street, which is to the west, is another unit block constructed some 12 years earlier. A concrete driveway for 30 Taunton Street runs the length of its western boundary adjacent to number 34.
- A retaining wall was constructed along the boundary and involved a cantilever structure with a concrete slab footing and a reinforced concrete wall using a proprietary product of AFS Systems Pty Ltd known as AFS Rediwall (‘Rediwall’). It was a polymer-based permanent form work system made up of interlocking extruded casings. It is sold in Australia by CSR Limited. Concrete panel walls were constructed by pouring concrete into external PVC linings acting as the formwork, which remained permanently in place.
- Following completion of the townhouses the Respondent, the Queensland Building Construction Commission (‘QBCC’) received complaints of water ingress into the garage areas particularly at the rear where the retaining wall formed part of the rear of the garage.
- A building inspector employed by the QBCC carried out inspections during March and April 2017. An inspection report dated 10 May 2017 followed. On 18 May 2017 a direction to rectify was issued to Studio 1 to rectify the following defects:
The Queensland Building Construction Commission finds the Licensee responsible in that water ingress is occurring to the ground floor garage/laundry area which is not in accordance with the BCA Volume 2, 2014, P2.2.2 Weatherproofing and P2.2.3 Dampness, resulting in water penetrating the eastern retaining wall area/junctions of units 2,3,4,5,6 causing undue dampness, water ingress to internal building elements (wall lining, skirting), which is unable to be maintained by the Occupants.
Scope of works
- Subsequently, on 15 August 2017, the QBCC issued a scope of works which it amended on 28 September 2017. The scope of works was based on drawings and information provided by NJA Consulting Pty Ltd, Structural, Civil and Forensic Engineers. It required the provision of new storm water pipe/field gully and spoon drain. Further it required rectification of the retaining wall.
- In relation to the retaining wall the following was required:
- (a)Carefully saw, cut and remove section of internal wall at wall intersection of units 2 to 6 to allow continuous waterproofing membrane to be applied to inside face of external wall (rear wall only);
- (b)Existing Rediwall consists of a PVC external lining the rectification works contractor shall provide a waterproofing membrane that is compatible with PVC ready while facing;
- (c)At the interface between Rediwall modules the contractor shall provide a suitable bond breaker to ensure that the installed membrane does not fail at module joint locations; and
- (d)After completion of the waterproofing membrane system and access void should be infilled with suitable framing system that achieves a fire rating and insulation from impact and airborne sound (specifications provided).
- In the meantime, attempts had been made to waterproof some areas but they had been unsuccessful. It also appeared that some rectification work, in accordance with a scope of works issued by the Commission, has been carried out, however, I am unaware of the extent of those rectifications other than for some comments that appear in the joint expert report.
Application to review
- On 4 July 2017, Studio 1 filed an application for a domestic building dispute. At the first directions hearing it was treated as a review of the Direction to Rectify. Studio 1 claimed in the application that the cause of the alleged defect was storm water flowing from the neighboring, uphill property which it alleged prevented it from fixing the alleged defects.
- The application is brought under s 86(1)(e) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) which provides that a direction to rectify is a reviewable decision. The Applicant is entitled to apply to the Tribunal for a review of that decision under s 87 of the QBCC Act.
- The functions of the Tribunal in a proceeding to review a reviewable decision are set out in s 24 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). The Tribunal can:
- (a)Confirm or amend the decision; or
- (b)Set aside the decision and substitute the Tribunal's own decision; or
- (c)Set aside the decision and return the matter to the Commission to reconsider the Decision with directions that the Tribunal considers appropriate.
- Both parties retained experts to advise them on the cause of the problem. The experts met for a conclave conducted on 29 March 2018. A joint report dated 3 April 2018 was produced. Before considering the joint expert report it would be helpful to set out the opinions of the parties’ respective experts.
- Mr Stephane Rebibou, a Consulting Engineer of Booth Engineers & Associates Pty Ltd provided a report dated 1 December 2017.
- He formed the opinion following site inspections that water was generally entering the garages via the construction joint between the concrete slab/footing in the base of the wall. He was also of the opinion that the site drainage of the uphill property was inadequate and required improvement. He thought it was severely affecting the performance of the installed drainage provisions behind the existing retaining walls. He thought the Rediwall building system was well suited to the conditions and that there was no evidence of actual ‘defective building work’ by the builder. He commented further:
Whilst it is obvious that water is indeed penetrating along the base construction joints of the Rediwall to slab interface at least, this is most likely the direct result of excessive overland flow conditions building up behind the wall to result in hydrostatic pressures and subsequent water ingress - the noted QBCC rectifications appear to largely cater for the diversion of the excessive "uphill" overland flow from the neighboring property via the use of an extensive and very likely costly "concrete spoon drain" within the property of 34 Taunton Street (to be taken along to boundaries of the property) in combination with the application of negative waterproofing to already water resistant PVC linings. Although the situation clearly requires some rectification, what are the obligations of the neighboring property and is it reasonable for the builder to have to bear all costs pertaining to such rectifications? It is also questionable as to what is anticipated from the application of the waterproofing membrane to an already water resistant PVC lining over such an extensive surface area?
- He concluded with some observations that required further consideration, namely:
- (a)The construction of a bund wall along the driveway of the uphill neighboring property;
- (b)the hydraulics and civil design plans and approvals obtained by Studio 1 did not require overland flow to field gully pots as identified by the QBCC in its scope of works and therefore was not ‘defective building work’;
- (c)Negative waterproofing membranes above all PVC linings would be costly and laborious for no apparent benefit unless the QBCC did not believe the CSR Rediwall PVC linings were not already water resistant;
- (d)The removal and total disconnection of the dividing walls from the main rear retaining wall as required by the scope of works was not warranted and may present considerable structural integrity issues;
- (e)In most moisture ingress problems it is the actual wall to floor interface which remains the source of ingress and although negative waterproofing systems exist and can sometimes be successful it is not possible to accurately predict such outcomes;
- (f)It is the actual concept design of the development where a room within a dwelling/unit is constructed directly against a cut embankment/retaining wall-which is inherently prone to water ingress problems throughout their life.
- Finally, Mr Rebibou believed that if the overland flow from the adjoining ‘uphill’ property was effectively managed and averted that would allow existing drainage provisions to cope without the need for costly negative waterproofing.
The Commission’s expert
- The QBCC retained Mr John Van de Hoef, a Structural Engineer of NJA Consulting Pty Ltd, to investigate and provide a report. He provided two reports, the first dated 13 December 2017, and the second following some water tests on 19 January 2018.
- Mr Van de Hoef extensively reviewed all the expert reports. He reported that he was not permitted to carry out invasive tests that may have conclusively identified the cause of the water inundation. However, he was satisfied that there was no evidence of water penetration through the face of the Rediwall retaining wall. All of the evidence he suggested was that water penetration occurred at the base of the wall.
- Mr Van de Hoef proposed two scenarios whereby water could have penetrated through the base of the wall. They were:
- (a)Water penetration through the construction joint between the base slab and the vertical concrete wall could be occurring. It is relevant to note that for this to occur, water penetration through the construction joint would occur and a buildup of water pressure of just over 100 mm would be necessary for water penetration onto the surface of the garage slab to occur; and
- (b)The second possible method of water penetration was that as described by the building contractor which effectively involved water penetrating under the slab footing, along the base of the retaining wall footing, up the vertical toe of the retaining wall footing and then back along the interface between the garage slab and the retaining wall base footing. A similar buildup of water pressure of at least 100 mm behind the base of the retaining wall would be required before water penetration onto the surface of the garage floor would occur. It was also relevant to note that a deepened edge to the base slab for the retaining wall for 500 mm minimum death was specified by Booth Engineers & Associates. For water penetration to occur, water would need to track below the thickened edge and then along the route detailed above.
- Mr Van de Hoef preferred the first scenario.
- The CSR Rediwall manual approved by the CSIRO recommended a base water stop be employed. Mr Van de Hoef’s enquiries of the project manager revealed that no water stop was fitted. Instead a flexible sealant was used. An email from AFS indicated that though a water stop was not mandatory it was highly recommended.
- Mr Van de Hoef, in his evidence in chief, developed further the theory raised in the joint report of why water was penetrating at the base of the wall. The product was originally used in Canada and the Canadian manual is not identical to the Australian Guide. In Canada a base track was not used. Instead the join was concrete to concrete on footings and on both slabs. Use of a base track provided a basis for water to permeate through. This occurred because the base track center webbing did not bond to the top of the footing. This created a potential regular conduit for water to penetrate through the base of the wall. According to the Australian Guide, the webbing is required to be removed when installing a water stop. If no water stop was used, as appears to be the case here, the webs were not removed.
- Nevertheless, Studio 1 did not install the Rediwall in accordance with the Guide which strongly recommended the use of a water stop. No explanation was provided as to why that course was taken and the use of a flexible sealant was preferred.
- Mr Van de Hoef commented on the inadequate aboveground drainage:
While there is a small section of ground between the Units and the adjoining property boundary approximately 650 mm wide, the predominant storm water that is likely discharging into the area above the retaining walls is effectively from the catchment on the driveway of the adjoining property. During periods of severe rainfall water is likely to be running across the driveway of the adjoining property, penetrating through the boundary fence and becoming trapped in the undrained area between the retaining walls and the property boundaries. The storm water is then penetrating through the clay soil surface present, into the backfill soils and is not able to be sufficiently discharged by the sub-soil drainage system present. Subsequent water penetration into the garages of the Units is occurring during the severe rainfall events. The combination water discharge from the adjoining property combined with the inadequate above ground drainage provisions provided behind the retaining walls is contributing to the eventual water penetration problem that is occurring into the garages of the Units.
- The conclave involving Mr Van de Hoef and Mr Rebibou reached the following agreement:
- (a)There existed a problem of water penetration into the back fill behind the retaining wall which included sheet flow from the driveway of No 30 and the small localised catchment between each unit balcony and the property boundary;
- (b)AS 4678 (earth retaining structures code) requires that above ground storm water and subsoil water for retaining walls be collected via two independent systems;
- (c)The location of the water penetration appears to be at the interface between the footing and the wall;
- (d)There is no evidence that water is coming through the wall;
- (e)If no action is taken further water penetration will occur;
- (f)Without the contribution of the overland flow from number 30 Taunton Street the problem would still exist but would not be as severe;
- (g)The table drain was not provided as required by Booth Engineers;
- (h)The site drainage requirements above the retaining wall specified in the Soil Surveys test report have not been complied with; and
- (i)The required subsoil drainage was installed adequately.
- In reviewing the QBCC’s decision, the issues for the Tribunal to determine are:
- (a)Was the work ‘building work’?
- (b)If so, was the work ‘defective’?
- (c)Was the Builder responsible for the defective building work?
- (d)Was the Respondent’s decision to direct the Builder to rectify the building work reasonable in the circumstances?
- The work carried out by Studio 1, clearly is building work within the meaning of the definitions in Schedule 2 of the QBCC Act. The term ‘defective’ in relation to building work, includes faulty or unsatisfactory.
- Under s 72 of the QBCC Act, the QBCC has a discretion whether to require rectification of building work. Under subsection 72(3) it may take into account all the circumstances it considers reasonably relevant and is not limited to a consideration of the terms of the contract for carrying out the building work. Under subsection 72(5) the QBCC is not required to give a direction if it is satisfied that, in the circumstances, it would be unfair to the person do so.
- The topography of number 34 Taunton Street was such that it would have had to been anticipated by those designing the construction that storm water runoff, drainage and seepage would be potential problems. More of a problem than would normally be encountered. The circumstances required Studio 1 to be particularly mindful of the drainage problems.
- It is tolerably clear from all the evidence that the source of water permeating the garages is through the base of the retaining wall and footings. On balance I accept that the reason that this has occurred is that the AFS Rediwall was not constructed in accordance with the AFS construction guide in that, the webbing was not removed and a water stop was not installed at the base as recommended. The instructions in the guide are clear. Consequently, I am of the opinion that Studio 1 has carried out defective work. It was an unfortunate and, in the end, expensive error.
- The drainage plans required the installation of a table drain, which was not complied with. The drainage was inadequate but if installed would not necessarily have prevented the sheet flow of water from the neighbouring property during a severe storm, however, it would have reduced the effects. Again Studio 1 has carried out defective work.
- I note that a spoon drain has been recommended but that would be non-compliant with the original development conditions which required landscaping along the eastern boundary of the property. A relaxation of the landscaping requirements would be required.
- The experts in the joint report refer to rectification work being carried out on 27 March 2018 in accordance with the scope of works. As predicted, the application of negative water proofing membranes to the Rediwall linings did not prevent the water inundation. The cutting of sections of the wall has produced some additional leaks, but not the deflection or deformation of the wall that Mr Rebibou feared might occur. It is unlikely that such work would have been undertaken had the parties had the benefit of the expert opinion as existed at the time of hearing. However, this is not a review of the Scope of Works but a review of the Direction to Rectify.
- I affirm the decision of the QBCC.
 Amended Scope of Works, dated 28 September 2017.
 Booth Engineers & Associates 1 December 2017, 5.
 Report of NJA Consulting Pty Ltd, dated 13 December 2017, 16.
 Report of NJA Consulting Pty Ltd, dated 13 December 2017, page 19.
 Report, dated 29 March 2018.
 Rediwall guide, page 25.
- Published Case Name:
Studio 1 Build Pty Ltd v Queensland Building and Construction Commission
- Shortened Case Name:
Studio 1 Build Pty Ltd v Queensland Building and Construction Commission
 QCAT 441
19 Dec 2018