Cheshire Contractors Pty Ltd v Everett

In this decision, Henry J considered the meaning of “building work” under the Queensland Building Services Authority Act 1991. The defendant alleged that the works in question were a fixed structure and therefore a “building”. His Honour held that the reference to “fixed” in the definition of building work was “an obviously conventional reference to the notion, well known in the law, of property being annexed to land in such a way as to become part of it”. He further accepted that “structure” is wider than “building” and includes anything constructed out of material parts and rejected the contention that the complexity of the structure is relevant. 

Henry J

9 November 2017

This matter concerned a part-trial of a claim and counterclaim in respect of moneys owing in connection with the construction of a road and associated works on the defendant’s property. [1]. Pursuant to r 483(1) of the Uniform Civil Procedure Rules 1999, Henry J ordered that a question be determined separately, namely, whether any of the alleged works referred to in the pleadings were “building work” as defined in the Queensland Building Services Authority Act 1991 (“the Act”). [2]. The relevant works included: (i) undesignated road building work; (ii) the construction of a culvert; (iii) the construction of a stormwater pit; and (iv) the construction of an agricultural drainage pipe. [3]–[7].

The defendant alleged that the resulting product in each instance was a fixed structure and thus a building as defined in the Act. [8]. “Building” is defined in Sch 2 of the Act to include “any fixed structure”. Whether the alleged structures were buildings was relevant to whether the work giving rise to each of the structures was “building work”. [8]. If it were, then the plaintiff had carried it out without an appropriately classed contractor’s licence which, under the Act, would disentitle him from the right to be paid for such work. [8].

“Building work” is defined in Sch 2 of the Act as follows:

“Building work means –

(a) the erection or construction of a building; or …

(c) the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with a building; or

…

(e) any site work (including the construction of retaining structures) relating to work of a kind referred to above; …

but does not include work of a kind excluded by regulation from the ambit of this definition.”

Henry J began by noting that the exclusion at the end of the definition is of work “of a kind”. [12]. The logical consequence of this was said to be that “the definition of building work excludes not only work specifically excluded by regulation from the ambit of the definition but also other work which is of the same kind as that which is specifically excluded”. [12].

However, before turning to the Regulation, his Honour considered the anterior question of whether the relevant works were “buildings” within the meaning of the Act. [15]. His Honour noted that the reference to “fixed” in the definition was “an obviously conventional reference to the notion, well known in the law, of property being annexed to land in such a way as to become part of it”. [16]. As for the term “structure” his Honour agreed with Daubney J in Ooralea Developments Pty Ltd v Civil Contractors (Aust) Pty Ltd [2013] QSC 254, that the term “structure” is wider than “building” and includes anything constructed out of material parts. [17]. His Honour rejected the plaintiff’s contention that whether something is a structure is a matter of degree, depending on the complexity of the construction.[18]–[19].

Accordingly, his Honour held that the undesignated road and its culverts were fixed structures. [20]. Although noting that “[m]ore uncertainty” attended the agricultural pipe, his Honour also held that the installed agricultural pipe was a fixed structure. [21]. As for the stormwater pit, his Honour said he “would not regard an area of excavated land as having been constructed or as being a structure”. [22]. Moreover, the paucity of evidence prevented his Honour from saying that the stormwater pit had been “constructed” in the relevant sense. [22].

Turning to the Regulation, his Honour considered whether the work was excluded from the definition of building work. However, the provisions excluding work under s 5 of the Regulation confined the relevant exceptions to work outside the boundaries of private property. The work in question was on a private property. [25]. Similarly, although a road is excluded in s 5(1)(l) of the Regulation, the definition of “road” made clear that an undesignated road is not a road of a kind excluded by s 5. [28].

As none of the work was excluded from the definition of “building work” it followed that the undesignated road building work, the construction of a culvert, and the construction of an agricultural drainage pipe were “building work” as defined in the Act. [31]. The construction of a storm water pit, however, was not building work.

J English