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Affordable Housing Company Pty Ltd v Queensland Building and Construction Commission[2022] QCAT 128

Affordable Housing Company Pty Ltd v Queensland Building and Construction Commission[2022] QCAT 128

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Affordable Housing Company Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 128

PARTIES:

Affordable Housing Company Pty Ltd

(applicant)

v

Queensland Building and Construction Commission

(respondent)

APPLICATION NO/S:

GAR383-19

GAR384-19

GAR385-19

GAR432-19

GAR436-19

GAR033-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

12 April 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Bertelsen

ORDERS:

  • The decisions of the QBCC to issue directions to rectify at the 6 construction sites/addresses
    1. (a)
      18 Buderim Street, Manly
    2. (b)
      22 Feltwell Street, Sunnybank
    3. (c)
      24 Feltwell Street, Sunnybank
    4. (d)
      87 Mountain Street, Mount Gravatt
    5. (e)
      38 Queensport Road, Murrarie
    6. (f)
      63 Langton Street, Banyo

the subject of these six review applications are all confirmed except for one direction to rectify, that is, to ensure a downpipe discharges directly to the ground at 38 Queensport Road Murrarie, which is set aside.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – whether directions unfair – consideration of relevant Australian Standards – applicability of alternate solutions – provision of alternate solutions – whether in fact rectification by the builder had occurred

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21, s 22, s 23, s 24

National Construction Code Vol 2

Queensland Building and Construction Commission Act 1991 (Qld), s 72

Queensland Building and Construction Commission rectification of building work policy

Building Code of Australia

Building Act 1975 (Qld)

Australian Standard 4654.2, 1684, 3958.1

Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480, 48

APPEARANCES &

REPRESENTATION:

Applicant:

Brennan Brook builders nominee

Respondent:

Malcolm Robinson Solicitor of Robinson Locke Lawyers

REASONS FOR DECISION

  1. [1]
    The Applicant Affordable Housing Company Pty Ltd (Affordable) has filed six review applications seeking a Tribunal review of six internally reviewed Queensland Building and Construction Commission (QBCC) decisions confirming directions to rectify at six property addresses where Affordable has completed housing construction. Affordable seeks cancellation in each instance. The six directions to rectify relate to the following addresses

QCAT case

Site A, ddress

Decision Maker

Date of QBCC IRU Decision

GAR383-19

18 Buderim Street, Manly

Debbie White

19 August 2019

GAR384-19

22 Feltwell Street, Sunnybank

Debbie White

19 August 2019

GAR385-19

24 Feltwell Street, Sunnybank

Debbie White

19 August 2019

GAR432-19

87 Mountain Street, Mount Gravatt

June Blaney

8 October 2019

GAR436-19

38 Queensport Road, Murrarie

June Blaney

8 October 2019

GAR033-20

63 Langton Street, Banyo

Paul Nash

24 July 2019

  1. [2]
    The directions to rectify relate to six house construction sites where construction has been completed as follows

18 Buderim Street, Manly

  1. (a)
    Issue #1 – waterstops to external doors to deck areas - the 4 external doors to the upper floor balconies did not have waterstops installed to the aluminium joinery, per either Option 1 of 2 of Fig 2.8 AS4654.2 (waterproofing issue).
  2. (b)
    Issue #2 – garage ceiling - the garage ceiling installation was non-complaint on the basis that the garage ceiling gyprock sheets had not been affixed at 300mm centres to the perimeter of the garage, contrary to the Boral instruction Manual.
  3. (c)
    Issue #3 – Framing to cavity sliding doors - wet area sheeting and cavity sliding door framing to the sliding doors in ensuite 4 was not compliant as it was not fixed to the wall framing at 200mm centres in accordance with manufacturer’s specifications.

22 Feltwell Street, Sunnybank

  1. (d)
    Issue #1 – waterstops to external doors to deck areas (waterproofing issue)

24 Feltwell Street, Sunnybank

  1. (e)
    Issue #1 – waterstops to external doors to deck areas were not installed; (waterproofing issue)

87 Mountain Street, Mount Gravatt

  1. (f)
    Issue #1 – waterstops to external doors to deck areas not being installed; (waterproofing issue)
  2. (g)
    Issue #4 – rear laundry door had no flashing or waterproofing installed to the underside of the door.

38 Queensport Road, Murrarie

  1. (h)
    Issue #1 – waterstops to external doors to deck areas not being installed (waterproofing issue)
  2. (i)
    Issue #3 - The wet area sheeting and cavity sliding door framing to the four ensuites are noncompliant in that the wet area sheeting has not been affixed to the manufacturers specifications to the cavity sliding door. The timber framing layout to the cavity sliding doors does not meet the fixing requirements for the wet area sheeting
  3. (j)
    Issue #5 – not ensuring downpipe is connected to the stormwater riser. That downpipe discharges directly to the ground adjacent to the footing system.

63 Langton Street, Banyo

  1. (k)
    Issue #1 - 4 external doors to upper floor balconies do not have waterstops installed behind the aluminium joinery, in accordance with Fig 2.8 option 2 of AS 4654.2 (waterproofing issue)
  2. (l)
    Issue #3 - Wet area sheeting and cavity sliding door framing to the cavity sliding doors of the 4 ensuites are non-compliant. The wet area sheeting has not been affixed per manufacturer’s specifications to the wall framing. The timber framing layout to the cavity sliding doors does not meet the fixing requirements for the wet area sheeting.

Evidence of Thomas Petzel Licenced building certifier level 2

  1. [3]
    Mr Petzel’s expert report of 17 August 2020 was produced to the tribunal. Mr Petzel stated any Australian Standard (AS) referenced by the National Construction Code (NCC) must be adhered to. It is mandatory, even Standards referenced by the code which referenced other Standards. He considered his primary role and focus was always to work from the code.
  2. [4]
    His brief and issues to be addressed were summarised in his report as follows:

QBCC's direction to rectify is based upon concern that the external sliding door assembly is defective because it does not comply with either the Australian Standard, or demonstrate a performance solution

  1. 1.The approach of QBCC to building works is:
  1. (a)
    Assessment of building work is governed by the NCC;
  2. (b)
    The NCC is performance driven, rather than prescriptive as to specific method;
  3. (c)
    The NCC references Australian Standards. The Standards provide, amongst other things, guidance as to acceptable method;
  4. (d)
    If a person adopts a method provided in an Australian Standard, then that is deemed to satisfy the NCC; and
  5. (e)
    It is possible to undertake acceptable building work by using an alternative building solution. If that is a satisfactory performance solution, then that will comply with the NCC.
  1. 2.Contrary to this, Brennan Brook took the position that his work performs. However, the certification forms refer to the Australian Standard and not a performance solution. He claims that his work performs, which he bases upon the words in the Australian Standard. He therefore says that it complies with the Standard and therefore, complies with the NCC.
  2. 3.QBCC's response to Brooks position is that he is not complying with the specific method in the Standard, and by using an alternative method, needs to demonstrate performance solution. Hence, it is not deemed to satisfy and no performance solution is identified in the Form 16 (inspection certificate Building Act 1975 and Building Regulation 2006).
  3. 4.The relevant form 16 references the Australian Standard, with no reference to any performance solution.
  1. [5]
    Mr Petzel was presented with a list of what were perceived to be non-compliance issues, photos and detailed drawings of the “as constructed by the builder”. He researched those applying the code and the relevant Standard.

Waterproofing issues – Issue 1

  1. [6]
    Affordable’s Mr Brook questioned Mr Petzel regarding a prior Development Tribunal decision about similar non-compliant waterproofing at a different site where it was determined that Australian Standard 4654 applicable to water proofing systems membranes in particular waterproofing diagrams within AS4654 were not mandatory but typical installation examples only. Mr Petzel answered that he did not let other decisions cloud his mind. The same approach applied to a builder’s verification report apropos the same site which, although available, he did not see as having any bearing on his own report.
  2. [7]
    In evidence Mr Petzel said he steered away from approving alternate solutions now called performance solutions for building work for the reason that if complying within Standard it’s given to be tested and working. Rather preferably waterproofing membranes should be diagram compliant here AS4654.2 figures 1, 2 and 3.
  3. [8]
    Section 2.8.3 of AS4654.2 calls up 2 options for subsill flashing for external opening doors. Mr Petzel considered that the various waterproofing issues #1 did not comply with section 2.8.3 diagrammatic figures options 1 or 2 “typical details of membrane termination at external door openings”. He explained that the Standard stated that subsill flashing shall be included as part of the membrane system. A subsill flashing being a separate element that is put under a doorframe to stop moisture from getting into the dwelling usually but not necessarily made of aluminium.
  4. [9]
    It was put to Mr Petzel that the Standard called up a third option diagrammatic figure being a ‘sill-no subsill’ which contradicted his position that a subsill was mandatory. But Mr Petzel stated that when he looked at the photos and detailed drawings from the builder none complied with any of the three options as a complete system. Nor did it matter whether the house frame was steel, concrete or timber the purpose of the diagrammatic figures/details being to protect all elements and prevent moisture from getting inside a dwelling.
  5. [10]
    With respect to the conduct of a site inspection Mr Petzel confirmed his “brief was to look at the documentation that I was provided with and give an opinion as to whether or not it complied with the Standard and whether or not an alternate solution should have been sought. That’s the crux of it”
  6. [11]
    Again when questioned about construction and floor materials Mr Petzel emphasized the Standard was not about building materials but was about weatherproofing the dwelling and protecting materials, so that moisture did not deteriorate the elements and that moisture did not get into the dwelling. He indicated that the as constructed waterproofing did not comply with figures 1, 2 or 3 and that there was no alternate or performance solution to prove otherwise.
  7. [12]
    Mr Petzel referred to the Building Code of Australia (BCA) referencing external waterproofing in particular an alternate system for external waterproofing. He said any alternate system must comply with performance requirements set out in the BCA. He said a performance solution may well be acceptable but it needs to be proven by someone such as a water proofing expert.
  8. [13]
    He said an alternate solution involved a process that could have been followed here but was not. The form 21 (final inspection certificate) was issued without any alternate solution; that it was the builder who was required to ensure that all works were carried out as per an approved alternate solution after the alternate solution had been approved or endorsed. Mr Petzel said as a certifier he would call in an expert to do an alternative solution because he could not formulate one himself.
  9. [14]
    In re-examination Mr Petzel explained the BCA firstly talks about performance requirements, those that must be achieved to gain compliance. There are two methods. The first is deemed to satisfy method which is prescriptive. The second is a performance solution. If the methodology adopted is that stated in the Standard then the building work is deemed to satisfy that is to say following the diagrams and words in the Standard which at 2.8.1 state subsill flashing shall be included as part of the membrane system. But there is provision for the use of other methods i.e. possible alternate performance solutions as stated in the Standard clause 2.1. While Mr Petzel did not consider the methodology adopted and depicted conformed with the Standards options such as to place them within the deemed to satisfy bracket rather then it was the absence of any alternate performance solution report the reason he considered the Standard had not been complied with.
  10. [15]
    Mr Petzel said he considered if there was compliance with diagrams and words in the Standard then the methodology was deemed to satisfy. He said option 1 involved the subsill flashing going:
  11. [16]
    “up and then across underneath the door … and then turns up. A waterstop angle is included as extra protection to enable water proofing to be applied. Option 2 involved the waterproofing membrane continuing underneath the door and going back up behind the door with a waterstop angle for water proofing membrane to form up with. Option 3 involved a waterproofing membrane that went across and up and underneath the door then turned up behind the door. Here the membrane is the sill working in conjunction with the waterstop angle which serves as a forming point for the waterproof membrane to be applied to.”
  12. [17]
    Mr Petzel confirmed that for all 3 diagrams there was a turn up of the sill for water proofing membrane behind the door. With respect to Affordable’s installation, photos of which were taken during the course of construction, he said the “waterproofing has just come along the horizontal floor path and that it hasn’t been upturned back with a waterstop angle”.
  13. [18]
    By reference to the builders as built drawings he considered there was noncompliance for the reason “the waterstop angle at the back and then the waterproofing membrane and backing rod and the silicone, that part of the diagram not continuing up on the vertical at the back of the door.” Then because there was no report for alternate solution there was an absence of compliance.
  14. [19]
    Following Mr Petzel was handed a photo of the wet area cavity door frame as sheeted. He stated to his knowledge there should not be a cavity sliding door directly in a shower enclosure, that is, adjacent to it or within it. He considered another wall, a dummy wall, ought to be constructed for the purpose of affixing waterproofing particularly so if tiles were applied. The sliding door frame would not be capable of taking the weight of the extra elements (tiles) but an additional Standard frame would ensure structural integrity. In the absence of an additional frame there would be a structural integrity issue requiring analysis.

Evidence of Brennan Brook

  1. [20]
    Mr Brook stated that he had previously appealed a QBCC decision regarding similar waterproofing and that the Development Tribunal had found his method of installation to be correct. That being so he proceeded to use his method of installation but as a precaution undertook additional work than was necessary at the houses the subject of these applications. The waterproofing membrane now travels under the door. He confirmed overlapping of waterproofing, one bonded to the other. With respect to turning up the waterproofing membrane against a waterstop Mr Brook said that could be added later with minimal disruption to the homeowner. It was put to Mr Brook that the only finding made by the Development Tribunal was at paragraph 7, which read:

in light of conflicting opinions, it is the Tribunal’s view that the building certifier needs to revisit site and inspect work to determine how it is being undertaken.

  1. [21]
    That being the case there was no positive statement that Mr Brooks methodology was acceptable but Mr Brook disagreed. It was put to Mr Brook that the Development Tribunal decision neither addressed nor confirmed Mr Brooks waterproofing method but Mr Brook disagreed.

Affordable’s Compliance Report

  1. [22]
    Produced to the tribunal was a compliance report for which Mr Brook took responsibility and which assertedly demonstrated that the provisions of the NCC P2.2.2 external waterproofing had been met. Mr Brook did not agree that the drawings/diagrams in the Standard 2.8.3 were examples of methods that if used would be deemed to satisfy for the reason that such took no account of building materials nor the kind of waterproofing used. He said:

each product has a manufacturer’s requirements on how it’s to be installed, the Standard doesn’t address that … so that’s why I state that the typical details fall short of being a how to build guide. It’s not clear whether they conform … a person who installs as per the diagram may not actually be installing work that is defect free.

  1. [23]
    Mr Brook considered his compliance report demonstrated conformity with the Standard. But Mr Brook agreed the diagrams did not discuss the product to be used. He confirmed option 3 diagram as the starting point for his installation method for the reason the waterproofing membrane goes underneath the door. The compliance report stated:

As determination height of the membrane per table A 1 is less than provided by the set down deck of the deck shown in detail in annexure A the membrane is not required to continue vertically behind the doorsill or jamb.

  1. [24]
    It was put to Mr Brook that all versions of diagram in the Standard had the sill or membrane going up behind the door. But Mr Brook said no diagram showed a timber frame with light frame cladding. Then he went on to say the Standards diagram at option 3 clearly depicted a monolithic concrete slab in a highrise. He said there was a fundamental error in option 3 in that it did not suit timber frame construction. Mr Brook agreed all 3 options included a waterstop angle on the inside of the door. He confirmed that he did not use any of the 3 Standards options. He said:

You don’t have to comply with a picture in order to deem to comply, you have to comply with the performance requirements.

  1. [25]
    Mr Brook went on to say:

Waterproofing is already there we just say put it all everywhere. We don’t want to be pulling doors out where people live if we ever have to make a change, which is why there’s more waterproofing there than we actually need … we actually have it under the door sill anyway.

The Garage Ceiling – Issue 2

  1. [26]
    With respect to the garage ceiling Mr Brook stated:

The QBCC officer had mistakenly thought we use Boral plaster board. It has particular fixing requirements that are different to CSR which is the actual product we used.

  1. [27]
    He described correct fixing spacing for CSR is 300mm centres to sheet ends whereas Boral is 300mm centres to the perimeter.
  2. [28]
    A CSR lightweight system letter directed to the QBCC and dated 8 July 2021 was produced. CSR identified with AS/NZS2589:2017 clauses 4.4.3.1.3 that wall ceiling junctions with cornices are to be fastened to a maximum of 300mm centres and that square set wall ceiling junctions are to be fastened at 150mm maximum centres. Mr Brook said the Standard was not mandatory. The manufacturers installation manual was the primary document to be followed.
  3. [29]
    When asked about installation of fastenings at sheet ends only Mr Brook said there were fastenings all the way around the perimeter and were at 300mm centres.

The Cavity Sliding Door – Issue 3

  1. [30]
    Mr Brook agreed a cavity sliding door means there is a sliding door that slides into a recessed cavity such that where the door is open it disappears into the recess. The frame comes prefabricated and sheeting usually plasterboard is attached according to the relevant Standard not manufacturers guidelines.
  2. [31]
    Mr Brook agreed plasterboard sheeting would be attached to the vertical stud frame with the normal studs being 70mm thick. He also agreed framing to the cavity sliding doors was 19mm thick.
  3. [32]
    Asked whether the load capacity for tiles could be achieved by the timber framing or by plasterboard thickness Mr Brook said that depended on the weight of the tiles per square meter which is called up in the Standard – the applicable Standard being AS3958.1 2007 Ceramic Tiles for the reason that the load on the wall is affected by the weight attached to it that is the tiles.
  4. [33]
    Mr Brook stated a box of the tiles used weighed about 4 kilograms and that there was 2 square meters to a box but Mr Brook also stated that villaboard/plasterboard/sheeting on a cavity slider required screws and glue for adhesion; that the glue holds the sheets on and the screws to hold them on until the glue dries.
  5. [34]
    Finally Mr Brook asserted that QBCC never referred to a page number or section in the Standard; that it was only after internal review that QBCC provided any information.

The Laundry Door – Issue 4

  1. [35]
    The laundry door leads to the outside of the house. It is an external door. Mr Brook was asked did the door mid-project have flashing. His answer was no. Did the finished house laundry door have flashing. His answer was yes. It was affixed during the cladding stage.

Downpipes – Issue 5

  1. [36]
    Mr Robinson on behalf of QBCC conceded that this issue, direction to rectify, be set aside.

Evidence of Paul Nash QBCC Building inspector

  1. [37]
    Mr Nash’s statement of evidence dated 20 January 2021 was produced to the Tribunal.

The Garage Ceiling

  1. [38]
    Mr Nash stated the perimeter of the garage was not fixed at 300mm centres when he was on site and a photograph taken. With respect to the 18 Buderim Street premises he said there were two houses. Looking from the front elevation at the time there was a completed dwelling on the right and an incomplete dwelling on the left. He investigated the incomplete dwelling on the left the subject of the direction to rectify.

Waterproofing of decks

  1. [39]
    Mr Nash explained that the

Australian Standard is called up under the NCC Volume 2 housing provisions … so that means the builder is compelled to comply with those Standards in what they call and we’ve discussed it here at length, deemed to satisfy provisions. So in that deemed to satisfy provisions under the general-subject-part 2.1 it says in part;

Section are typical acceptable methods … There are at least three … figure 2.1 options 1, 2 and 3

  1. [40]
    Mr Nash confirmed that typical acceptable methods were mandatory. He stated the builder had a legislative and contractual requirement to comply with the relevant Australian Standards. He said:

If you believe you have other criteria that you can meet such as performance criteria that you mentioned previously you’re more than welcome to use that … but you have not facilitated that with any certifier to the best of my knowledge.

  1. [41]
    Mr Nash went on to say:

You need to adopt one of those three methods or get an alternative solution. And you’re more than welcome to do that but that has not happened.

  1. [42]
    That “if you did provide an alternative solution it’s up to the certifier to assess that … that has not occurred”.
  2. [43]
    Mr Nash went on to say the Development Tribunal decision did not alter his view but rather reinforced it. Nor did construction type, manufacturer’s instructions or building materials associations affect the validity of the detail in the Standard. In particular what he termed manufacturer’s documents or an associations document could only ever be interpreted as an addition to the minimum in AS2.8. He found it (the Standard) very simple and easy to understand what was required. So should the builder.
  3. [44]
    He confirmed waterproofing beyond underneath the door did not satisfy the Standards requirements. Whilst waterproofing under the door was a step in the right direction the waterstop was required to run across from the right side timber frame to the left side timber frame returned as the Standard requires. Only then does the door fit into the frame. Nor here was there any waterstop the element that forces the water one way. Both the membrane and waterstop together achieve a water barrier.

Conclusions

  1. [45]
    This review hearing is a fresh hearing on the merits. The role of the QBCC as respondent to the review application is to assist the tribunal make a decision on review, that is, produce the correct and preferable decision. There is nothing adversarial about that rather the tribunal being charged with, in short, confirming the QBCCs decisions, setting them aside or returning them for reconsideration.
  2. [46]
    A large volume of material and evidence is before the tribunal some of it repetitive due to the same direction to rectify being common to more than one address/site.
  3. [47]
    There are essentially 4 directions to rectify.

Waterproofing to external door areas – Issue 1

  1. [48]
    The tribunal accepts and agrees with the interpretation of Australian Standard 4654.2 that if any of the methodology depicted in figure 2.8 options 1, 2 and 3 is followed faithfully then the external waterproofing is a deemed to satisfy solution. That is deemed to have been correctly installed. To that extent options 1, 2 and 3 could be construed as mandatory. If that methodology or manner of installation is not followed there may be an acceptable alternate solution afforded by AS4654.2.1 which states

Note: the details illustrated in the figures of this section are typical acceptable methods and are not to be interpreted as precluding the use of other methods.

This latter solution must be assessed by a building certifier to ensure it meets or exceeds the requirements of a deemed to satisfy solution.

  1. [49]
    The material filed and evidence given by Mr Petzel and Mr Nash make it clear that Affordable’s alternate solution as diagrammatically presented by Affordable does not comply with options 1, 2 or 3. There is no waterproofing membrane under the door nor any waterstop angle against which there is a turn up of the waterproofing membrane. That being so Affordable must rely on its own alternate solution. It’s alternate or performance solution has not been assessed by a building certifier who is obliged to also produce evidence of compliance with performance requirements which are absent here. Rather certification refers to the Australian Standard and not a performance solution.
  2. [50]
    To be clear it is not good enough where a deemed to satisfy methodology is not utilized to proffer an alternate method that does not identify a performance solution based on performance requirements. Here, as correctly pointed out by Mr Petzel, the form 16 inspection certificate references the Australian Standard with no reference to any performance solution. That being so all the directions to rectify apropos waterproofing ought be confirmed.

The Garage Ceiling – Issue 2

  1. [51]
    The noncompliance here is that garage ceiling sheets had not been affixed at 300mm centres to the perimeter of the garage contrary to Boral construction manual. But the ceiling sheets used were in fact a competitively similar CSR Gyprock.
  2. [52]
    A CSR lightweight systems letter addressed to the QBCC and dated 8 July 2021 together with a manufacturers guide was produced to the tribunal. It recommended 300mm perimeter spacing. Mr Nash utilized a tape measure and took a photo visually observing that trusses were at either 450mm or 600mm centres when the recommended spacing was 300mm centres. That being so it is neither here nor there that the product is Boral plasterboard or CSR Gyprock. At the time of the issue of the direction to rectify the ceiling installation was defective in that it was not installed in accordance with manufacturers guidelines. The QBCC’s approach is reasonable and justified particularly where Australian Standard AS/NZS2589:2017 is similar to CSR’s installation instructions. The direction ought be confirmed.

Framing to Cavity Sliding Doors – Issue 3

  1. [53]
    The noncompliance here is that the timber framing layout to the cavity sliding doors does not meet the fixing requirements for the wet area sheeting. The mechanical fixing to the villaboard wall sheeting to the 4 ensuite cavity slider frames was not fixed at 200mm centres in accordance with manufacturers specifications.
  2. [54]
    The QBCC’s improvement notice preceding the direction to rectify is clear enough. Mechanical fixings not provided to the cavity slider in accordance with the manufacturer’s installation guide.
  3. [55]
    Some manufacturers do not recommend that their prefabricated framing units for cavity sliding doors be utilized for affixing wall tiles because they may not have been tested or designed to support the additional loads placed on them by wall tiles.
  4. [56]
    Such prefabrications do not meet the requirements of AS1684 timber framing code, AS3951.1 “guide to the installation of ceramic tiles” or provide an acceptable framing layout to meet the fixing requirements for wet area sheeting.
  5. [57]
    Any builder installing a cavity sliding door system in a tiled wet area should consult the door and wall lining system manufacturer as well as his own certifier to ensure compliance.
  6. [58]
    Mr Brooks issue with this direction to rectify seems to be that it was not detailed enough nor clear enough but that’s as far as it went. There were no submissions by Mr Brook addressing the sliding cavity door issue, that is, presumably the adequacy of his own installation method. Mr Brook did not cross-examine Mr Nash despite being given opportunity to do so.
  7. [59]
    The NCC being a performance based code sets minimum levels for safety, health and amenity of buildings and for building work.
  8. [60]
    Whilst there is no onus of proof in the usual sense for Mr Brook to prove his case as such he here needed to adduce some evidence supporting his case for cancellation of the direction to rectify. Here the inadequacy comes about due to extra load being exerted on plasterboard sheeting because of tiling where that plasterboard is not supported against a vertical stud wall but rather a light prefabricated framing unit with only horizontal bearers. To that extent then the failure to fix at 200mm centres can be construed as unsatisfactory. The direction ought be confirmed.

The Rear Laundry Door – Issue 4

  1. [61]
    Here the direction to rectify centres on the external laundry door not being installed with subsill flashing as required by BCA Vol 2 section 3.5.3.6 and AS2904 flashing to wall openings. Mr Brooks indicated the door had since been installed with flashing. Two photos were produced. When that occurred was unclear. He said because the rear laundry door leads on to a timber deck area and not a waterproofed tiled area AS4654 was not applicable but that Standard was not relied upon. Nor were there any submissions supporting his interpretation.

Other matters

  1. [62]
    Affordable did not ever communicate to QBCC compliance with the directions to rectify despite follow up efforts by the QBCC other than to say latterly in this proceeding stating with respect to waterproofing to external door areas flashing had been placed everywhere even though it was not thought to be necessary and with respect to the rear laundry door flashing had been installed since.
  2. [63]
    In the tribunal decision Interlink Developments Pty Ltd v Queensland Building and Construction Commission[1] the following passage appears:

It was not the intention of the legislation, in my view, that a person who fails to carry out the work the subject of a direction during the period for rectification, is able to nonetheless rectify the work in their own time, well after the expiration of that period, and then simply apply for external review…I do not, therefore, accept that items directed to be rectified which have since been rectified, should, for that reason alone, no longer be the subject of a direction.

  1. [64]
    Here some directions have been latterly complied with it seems but only on the say so of Mr Brook. There is nothing to suggest it would be unreasonable for the directions to stand.
  2. [65]
    Simply making assertions about what might amount to latter day compliance is not a basis to argue for the cancellation/setting aside of a direction to rectify.
  3. [66]
    A Development Tribunal decision about external waterproofing was sought to be relied on as evidence of compliance with the directions to rectify relating to waterproofing external door areas. That was a different tribunal in a different setting following a different pathway. Suffice to say even if construed as favouring Affordable’s methods there was nothing in that decision which amounted to a finding that contradicted the QBCC’s directions to rectify. Quite the contrary Mr Nash gave evidence that the Development Tribunals decision if anything gave efficacy to the directions to rectify particularly in relation to waterproofing external door areas.
  4. [67]
    Later subsequent to the hearing on 12 July 2021 orders were sought to the effect that the parties be allowed to provide further closing submissions based on factual errors in submissions made at hearing which might mislead the tribunal. In due course Tribunal orders were made for the submission of further closing submissions. The good grace afforded to the parties was never an opportunity to introduce new evidence or re-agitate a partys case.
  5. [68]
    Submissions by Affordable were lengthy and objected to by QBCC. They included a number of recurring comments about the conduct of the QBCC bordering on the derogatory. They are irrelevant.
  6. [69]
    Affordable stated the Building Act QLD 1975 section 175 applied to this proceeding. The section concerns a certifier licence. It is not relevant to a direction to rectify.
  7. [70]
    A number of assertions by Affordable clearly amount to or rely on adducing fresh evidence or talk about others including certifiers, trades persons and owners who undertook, performed or were preferred. If such is construed as fresh evidence it is not relevant to this decision.
  8. [71]
    Affordable asserted cavity sliding doors were done correctly relying on a James Hardie villaboard lining install guide to argue installation as compliant. Clearly this is fresh evidence. Once again it is not open to a party to reargue its case under the guise of closing submissions. In short evidence at hearing is what is relevant and that is what is considered to determine the outcome here.
  9. [72]
    Minor discrepancies by the QBCC in the applicant’s nominations are in no way fatal in a merits review of this nature. That said the tribunal cannot discern any issue of consequence that gives rise to a reconsideration of the decision reached by the tribunal based on the material and evidence at the hearing 12 July 2021.

Final Conclusion

  1. [73]
    The decisions of the QBCC to issue directions to rectify at the 6 construction sites/addresses
    1. (a)
      18 Buderim Street, Manly
    2. (b)
      22 Feltwell Street, Sunnybank
    3. (c)
      24 Feltwell Street, Sunnybank
    4. (d)
      87 Mountain Street, Mount Gravatt
    5. (e)
      38 Queensport Road, Murrarie
    6. (f)
      63 Langton Street, Banyo

The subject of these six review applications are all confirmed except for one direction to rectify, that is, to ensure a downpipe discharges directly to the ground at 38 Queensport Road Murrarie, which is set aside.

Footnotes

[1] Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480, para 48.

Close

Editorial Notes

  • Published Case Name:

    Affordable Housing Company Pty Ltd v Queensland Building and Construction Commission

  • Shortened Case Name:

    Affordable Housing Company Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2022] QCAT 128

  • Court:

    QCAT

  • Judge(s):

    Member Bertelsen

  • Date:

    12 Apr 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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