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ACT CIVIL & ADMINISTRATIVE TRIBUNAL
KOUNDOURIS v CONSTRUCTION OCCUPATIONS
REGISTRAR & ORS (Administrative Review) [2015] ACAT 92
AT 99/2013
Catchwords: ADMINISTRATIVE REVIEW – rectification order – water
ingress – façade cracking – whether rectification order made
outside the ten year time limit
Legislation cited: Building Act 1972 ss 37, 40A, 41A
Construction Occupations (Licensing) Act 2004 ss 34, 35, 36,
38, 40
Subordinate
Legislation: Australian Standard 3700 s 2.5.2.2
Building Code of Australia 1996, Volume 1, Amendment
number 11 ss FP1.3, FP1.4
Tribunal: President W.G. Stefaniak AM RFD
Senior Member G. Lunney SC
Senior Member G. Trickett
Date of Orders: 23 December 2015
Date of Reasons for Decision: 23 December 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL AT 99/2013
BETWEEN:
RE: MICHAEL
KOUNDOURIS
Applicant
AND: CONSTRUCTION
OCCUPATIONS
REGISTRAR
Respondent
AND: ROBERT FARRELL
First Party Joined
AND: EDWARD PURRER
Second Party Joined
AND: THE OWNERS - UNITS
PLAN 2340
Third Party Joined
TRIBUNAL: President W.G. Stefaniak AM RFD
Senior Member G. Lunney SC
Senior Member G. Trickett
DATE: 23 December 2015
ORDER
1. The rectification order made by the Registrar will be set aside and another
substituted. The matter will be listed for settling a rectification order. The
respondent should circulate a draft order to the parties not later than two weeks
prior to the listed hearing date. The other parties should circulate suggested
amendments not later than five days prior to the hearing date.
……signed………..
President W. G Stefaniak AM RFD
for and on behalf of the Tribunal
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ACT CIVIL & ADMINISTRATIVE TRIBUNAL AT 99/2013
BETWEEN:
RE: MICHAEL
KOUNDOURIS
Applicant
AND: CONSTRUCTION
OCCUPATIONS
REGISTRAR
Respondent
AND: ROBERT FARRELL
First Party Joined
AND: EDWARD PURRER
Second Party Joined
AND: THE OWNERS - UNITS
PLAN 2340
Third Party Joined
TRIBUNAL: Senior Member G. Lunney SC
Senior Member G. Trickett
DATE: 22 July 2016
This Rectification Order under the Construction Occupations (Licensing) Act 2004
(COLA) is made in substitution for an Order of 21 November 2013 by the Construction
Occupations Registrar after review by the ACT Civil and Administrative Tribunal of
that Order.
In this Order the following abbreviations are used
‘EC’ refers to the Executive Committee, the owners, Units Plan No. 2340
‘Diagnostech’ or ‘the Diagnostech Report’ refers to a report dated 17 August 2012
prepared by Diagnostech Pty Ltd and which was annexed to a notice issued
pursuant to Section 34 of COLA in this matter.
‘COLA’ refers to the Construction Occupations (Licensing) Act 2004.
‘the builder’ refers to Michael Aristidis Koundouris.
‘the parties’ refers to the parties to ACAT proceeding AT99/2013
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‘the residents’ refers to the residents of Block 24 Section 43 Turner in the ACT.
‘the Assessor’ refers to the individual appointed pursuant to Clause 5.
This Order is issued to Michael Aristidis Koundouris the holder of an ‘A’ class
builder’s licence of 3 Torrens Street Braddon ACT in the Territory. It relates to
building work undertaken by him at Block 24 Section 43 Turner in the Territory.
ORDER
1. The work the subject of the Order is to be completed by the builder within 7
months of the date of the making of this Order.
2. All work is to be done in a proper and skilful manner using new materials suitable
for the purpose for which they are used and which comply with the standards
under the Building Code of Australia applicable at the time of use.
3. Within 28 days of the date of this Order the builder shall prepare and serve on the
parties a schedule of his estimate of the program of execution of works which shall
include an estimate of access, and storage requirements; and of work involving
loud noise, vibration or unpleasant odours.
4. During the execution of work the builder shall give reasonable notice of the
matters referred to in the previous clause to the residents and subject to this Order
shall use his best endeavours to meet their reasonable convenience in undertaking
work.
5. Before commencing rectification work the builder shall appoint an Assessor who:
(a) shall be a qualified Building Surveyor licenced under COLA;
(b) shall be appointed in consultation with the Registrar. Should agreement not
be reached within seven days of nomination of a proposed individual by
either party, the President of the Master Builder’s Association or his
appointee shall appoint the Assessor;
(c) shall inspect the works as they progress at intervals consistent with the
stages of progress of the works and issue a Certificate in respect of
completion of each item of the works certifying that in his opinion it
4
complies with Clause 2 of this Order, and provide each of the parties with a
copy;
(d) in the event that a dispute arises between any of the parties in relation to any
of the works to be undertaken pursuant to the Order, the Assessor shall use
his/her best endeavours to bring about a resolution of the dispute, and may in
their discretion:
i offer their opinion on any aspect of the dispute; and
ii in default of agreement between the parties to the dispute, decide the
dispute or any aspect of the dispute.
6. Should the works be delayed by weather, availability of materials, or other
sufficient cause, the Registrar may allow up to a further two months for
completion. All work must be completed no later than nine months from the date
of this Order.
7. In complying with this Order, the builder is required to:
(a) Meet all costs associated with the work done and with compliance with this
Order including the costs of the Assessor.
(b) Comply with all relevant applicable laws and pay for the costs of such
compliance.
(c) Reinstate or make good any damage to property, services and equipment as a
result of the execution of the works and non-compliant work the subject of
this Order.
(d) Remove and dispose of waste generated by the works.
Individual Issues
Façade Cracking
8. Generally all work is to achieve a proper and neatly finished surface to match
adjoining surfaces to the full extent of the brick-veneer façade; to brickwork
encasing steel columns, and including to rendered surfaces
9. All cracks of 1mm or more should be rectified. The work required for rectification
will vary according to the type of crack
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Expansion Joints
10. Expansion joints shall be inserted in the facade, the location and installation of
which shall comply with the Masonry Code AS 3700. Locations shall not reduce
the strength of the veneer and may be governed by the existing crack locations The
builder shall prepare and serve on the Registrar a plan of the proposed work not
less than seven days prior to the commencement of the proposed work.
11. All joints shall be saw-cut full height and formed with appropriate sealant and
backing rod installed strictly to the sealant manufacture’s specification in a neat
and workmanlike method.
12. Bed jointing is to be removed to allow the installation of proprietary masonry
articulated expansion ties to bed joints at every 4th course to the height of the saw
cut expansion joint. Compressible closed cell joint filler is to be installed to the cut
joint after installation of ties, and the bed joints are to be fully mortared up leaving
the vertical cut joint free of mortar.
Articulation Joints
13. Articulation joints shall be formed at the junction of dissimilar materials and at
joints in dissimilar underlying substrates. Joints shall be 10mm wide and formed
with appropriate sealant and backing rod and closed cell compressible filler
installed strictly to sealant manufacture’s specification in a neat and workmanlike
method
Cracks in the depth of the render only
14. These cracks shall be repaired after the above control joints have been installed.
15. All cracks 1mm wide to 5mm shall be repaired by raking out the crack and filling
with non-shrink flexible filler.
Cracks through the depth of the render and into the brickwork
16. These cracks shall be repaired after the above control joints have been installed.
17. All cracks greater than 1mm wide and extending into the brickwork shall be
repaired as follows. Cracks less than 5mm wide shall be repaired as for “Cracks in
the depth of the render only” with the brickwork raked out and non-shrink flexible
filler injected to extend into the brickwork for the full depth of the crack. Cracks
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greater than 5mm but less than 15mm may be repaired the same way but work
may involve breaking out and replacing small sections of brickwork which shall
be fully bonded into the existing wall. Affected areas of adjacent render shall be
square edge cut so that no feather edges result. Render and primer shall be
installed to the manufacture’s specification and properly cured all to match
adjacent surfaces.
18. For cracks in the brickwork greater than 15mm wide the rectification work is to be
determined by a qualified structural engineer engaged by the builder.
Penetration of water from balconies into habitable units
19. The balconies to Units 26, 28, 29 & 30 shall be exposed and a torch-on membrane
applied as set out in the Diagnostech Pty Ltd report at T348-T352 and attached as
Appendix 1 titled “Waterproofing Works – Level 3 Balcony Deck Waterproofing
Works”; Clauses 3.1.1 to 3.1.9 inclusive. Ceramic tiles are to match existing tiles.
Water testing is to be carried out for the full extent of the membraned areas by
water ponding for 36 hours and inspecting the ceiling spaces below. Work is to be
rectified if leaks appear. The appointed Assessor is to inspect work as a minimum:
prior to membrane application, prior to installation of tile bedding at the end of the
ponding period, and at completion of tiling with control joints installed. Tiles and
bedding presently used as a cover should be disposed of by the builder.
20. Undertake remediation works as described and to standard described in Appendix
2 ‘Internal Repair Work’, items 2.2 and 2.3
21. Work to be done is set out in the table set out below.
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Unit Diagnostech defect
number
Level Problem Rectification required
18 133 2 East face, under Unit 26,
water penetration
through ceiling
Rectify Balcony off bed 2
Unit 26. Repair internal
damage to ceiling
19 146,147 2 South East corner under
Unit 26, water
penetration through
kitchen, living room
ceiling
Rectify E & S Balconies Unit
26. Repair internal damage to
ceilings of kitchen & living
room. Replace carpet &
underlay
21 158 2 West face, under Unit
28, water penetration
bedroom ceiling
Rectify Balconies off Unit
28. Repair internal damage to
ceiling of bedroom
22 164/5/6 2 West face under Unit 28,
water penetration
through living room
ceiling and wall
Rectify Balconies Unit 28.
Repair internal damage to
ceiling of living room, west
wall & skirting, & architraves
to living room window
23 172
3 South West corner, water
penetration through
bedroom 1 wall
Rectify Balconies off Unit
29. Repair internal damage to
wall of bedroom 1
24 179-182 3 North West Corner,
water penetration
through bedroom 2
wardrobe
Rectify Balconies off Unit
30. Repair internal damage to
bedroom 2 wardrobe walls &
ceiling
25 188/189 3 West face, water
penetration through
living room ceiling
Rectify Balconies off Unit
30. Repair internal damage to
living room ceiling
26 196-204 3 North East corner, water
penetration at floor level
in bedroom, kitchen,
Mansard roof space
Rectify Balconies. Repair
internal damage to walls,
skirtings & replace carpet.
Repair damage to mansard
roof structure by replacing
rotted timber with durability
class 2 timber & repairing
steel work by removing rust
& fully coating with
Jotaprime
27 208 3 South East corner, water
penetration damage into
Mansard roof
Repair damage to mansard
roof structure by replacing
rotted timber with durability
class 2 timber
28 215/17 3 South West corner, water
penetration damage in
Bedroom 1, Bedroom 2
& living room
Rectify Balconies. Repair
internal damage to thresholds
& skirtings
8
Basement car park roof
22. The podium area of the basement roof including the roof to the Waste
Management area; the inside of the planter boxes, and the set down covered front
northwest garden area outside Unit 2, including the walls from the set down up to
the adjacent podium roof, shall be exposed and a torch on membrane applied as
described in the section related to “Penetration of Water from Balconies into
Habitable Units” above.
23. Concrete pavers and sand presently used as a cover should be disposed of by the
builder.
24. The membrane is to extend up to the outside face of the ground floor walls at the
podium level, however unlike the work to the balconies no existing wall material
and thresholds are to be demolished.
25. The surface of the podium including the roof to the Waste Management area shall
be tiled with non-slip ceramic tiles of a neutral colour satisfactory to the EC and
laid to fall away from the building. The area of membrane to be covered with
earth, including the walls, should have a protection board laid on top of it prior to
back filling.
Corrosion of structural steel to balconies, and mansard roofs
26. For methodology refer to pages T364 (Corroded Steel Repair) and T783
(Structural Steel Work Finish numbered F3) from the Tribunal Documents
attached hereto as appendixes 3 and 4. Adjust method as appropriate for specific
29 219-220, 3 South West corner, water
penetration in Bedroom
1 & Bedroom 2
Rectify Balconies. Repair
internal damage to thresholds
& skirtings
30 235-239 242/3 3 North West Corner,
tiling on balcony, water
penetration in living
room, kitchen. Damage
to structures in Mansard
roof
Rectify Balconies. Repair
internal damage to kitchen
threshold, living room
skirting. Repair damage to
mansard roof structure by
replacing rotted timber with
durability class 2 timber &
repairing steel work by
removing rust & fully coating
with Jotaprime
9
situations.
27. Rust shall be removed using power or hand tools including wire brushes, needle
gun, sanding, etc. Where surfaces have previously been painted the adjacent
painted areas that are unsound shall be removed and the sound areas shall be
sanded to a feather edge termination. Surfaces shall then be cleaned to remove
contaminants.
28. Priming: Affected steel to basement, other than the lintel beam to Waste
Management entry, shall be coated with Luxaprime zinc phosphate to a dry film
thickness of 75 microns.
29. The appointed Assessor shall inspect all work prior to application of the finishing
coats.
30. Application of finishing coats is to be by brush, roller or airless spray providing
the equivalent of two full gloss coats to the full extent of structural members
including already painted surfaces. Paint to be compatible with primer and existing
painted surfaces.
31. Work in relation to the balconies is to be done as identified in the following table.
Unit
No.
Ref
Diagnost
Description Remediation
31 18 Corroded balcony
support steelwork.
Inadequate protective
coating
Remove rust. Fully coat with Jotaprime
before two finishing coats
18 25 Corroded balcony
support steelwork.
Inadequate protective
coating system
Remove rust. Fully coat with Jotaprime
before two finishing coats
134 Corroded lintel beam,
balcony. Inadequate
protective coating
system
Remove rust. Fully coat with Jotaprime
before two finishing coats
19 140 Corroded lintel beam.
Inadequate protective
Remove rust. Fully coat with Jotaprime
10
coating system before two finishing coats
21 156 Corroded lintel beam.
Inadequate protective
coating system
Remove rust. Fully coat with Jotaprime
before two finishing coats
24 176 Corroded lintel beam.
Inadequate protective
coating system
Remove rust. Fully coat with Jotaprime
before two finishing coats
25 185 Corroded lintel beam.
Inadequate protective
coating system
Remove rust. Fully coat with Jotaprime
before two finishing coats
32 21 Not in RO, in Rpt
Jeffry. Corroded
balcony support
steelwork and
balustrade. Inadequate
protective coating
Remove rust. Fully coat with Jotaprime
before two finishing coats Repair
cracked tiling
26 D191 Not in RO, in Rpt
Jeffry. Corroded
balcony post.
Inadequate protective
coating system
Remove rust. Fully coat with Jotaprime
before two finishing coats
D200-203 Corroded support
steelwork in Mansard
roof space on balcony
due to water entry
Remove rust. Fully coat with Jotaprime
before two finishing coats
30 D230/1,23
3,
Not in RO. Corroded
balustrade, balcony
post. Inadequate
protective coating
Remove rust. Fully coat with Jotaprime
before two finishing coats
242 Corroded support
steelwork in Mansard
roof space on balcony
due to water entry
Remove rust. Fully coat with Jotaprime
before two finishing coats
Repair to basement structural steel including lintel over garbage storage room
32. Rectify by the method previously described all corrosion to structural steel in the
basement. Instances of the work to be done are identified in items 11, 12, 13 and
15 of the Diagnostech Report attached hereto as Appendix 5. Where corrosion
extends beyond area depicted in the photograph continue rectification work
11
appropriately.
33. In relation to the steel column on grid 5 adjacent to grid H in the waste
management room of the basement, item 85 of the Diagnostech Report at
appendix 6, rectify corrosion at base of column. Expose base of column below
level of surface of concrete to a depth sufficient to determine extent of corrosion
below the surface. Engage a structural engineer to determine the method of
rectification to provide a 30 year structural soundness and rectify in accordance
with advice.
34. In relation to the lintel beam over the entry to the waste management room shown
in Diagnostic Report item 43 in appendix 6, after exposure when undertaking
podium work referred to above, replace the beam unless a certificate is obtained
from a structural engineer and served on the Registrar and Assessor that after
repair (which is undertaken) the lintel has a 30 year structural soundness.
Rectification of parapet capping
35. Remove existing parapet capping and fixings to Units 26, 27 and 28 which is to be
disposed of by the builder.
36. Provide to the whole of the wall parapets to Units 26, 27 and 28 “Colorbond”
metal capping in long lengths side fixed securely at 900mm centres into adequate
support. Fixings to have horizontally slotted holes to allow for expansion. If fixing
directly into brickwork the fixings are to be into the second top course of
brickwork. Joints to be lapped 150mm, sealed and to allow for thermal movement.
Rectification of gaps in mansard roofs
37. Remove existing damaged or poorly installed capping/flashing and tiles to the
mansard rooves of units 26 and 30 which are to be disposed of by the builder.
Replace and repair all work with matching materials, and “Colorbond” metal
capping/flashing in long lengths.
………………………………..
Senior Member G Lunney SC
for and on behalf of the Tribunal
12
Appendix 1
13
14
15
16
17
Appendix 2
18
Appendix 3
Appendix 4
20
Appendix 5
21
22
Appendix 6
23
REASONS FOR DECISION
1. This is an application for review of a decision by the Construction Occupations
Registrar (the respondent or Registrar) to issue a rectification order against the
applicant builder, Michael Koundouris, in respect of a block of units at block 24
section 43, Turner in the ACT.
2. The applicant is a class A builder and is the nominee of a company which
developed the site by erection of a block of 32 units and an underground
carpark.
3. Approval for construction of the building was issued on 27 September 2002. On
21 October 2003 a certificate of structural sufficiency was issued, and on
25 November 2003, the respondent issued a certificate of occupation and use.
4. The units were purchased and in due course, the owners identified some
difficulties in their use of the premises that they alleged were due to defects in
the construction of the building.
5. On 1 November 2012, a unit owner who was a member of the Executive
Committee of the Owners Corporation lodged a complaint regarding the quality
of the building work with the Registrar.
6. Investigations were carried out, and on 9 August 2013, the respondent issued a
notice of intention to issue a rectification order. The rectification order which
was issued by the respondent and which is the subject of this application was
issued on 21 November 2013.
Reference
7. The following abbreviations have been used in the text of these reasons.
Referenced sections from the relevant legislation have been reproduced at
Appendix 1.
‘BA’ – Building Act 1972
‘BCA’ – Building Code of Australia 1996, Volume 1, Amendment number 11
‘COLA’ – Construction Occupations (Licensing) Act 2004
24
‘section 34 notice’- The notice issued by the Registrar pursuant to section 34 of
COLA on 9 August 2013
The Complaint
8. The complaint was on a departmental form prepared for that purpose and was
stated to be submitted on behalf of the Owners Corporation. It was accompanied
by a report prepared by Dennis Stephenson, the principal of building
consultancy firm ‘Diagnostech’ and which was dated 17 August 2012.
9. The complaint referred to the following as being ‘the key issues’:
(a) Water ingress into residential units and associated damage.
(b) Water ingress into basement and garbage room – resident property and
corrosion of structural steel work and concrete slab damage.
(c) Premature degradation of building façade and structural cracking.
(d) Premature corrosion of steelwork, internally and externally.
(e) Lack of compliance with fire safety regulations with regard to fire stairs
and protective coating to structural steelwork.
10. The report of Mr Stephenson was extensive and included a large number of
photographs which had been taken of or concerning alleged building defects.
Each defect that he reported was accompanied by a photograph and a brief
description.
The Notice of Intention
11. After receipt of the complaint, the respondent arranged inspection of the
premises, took the steps referred to in part 4 of the COLA and issued a notice of
intention to issue a rectification order on 8 July 2013.
34 Intention to make rectification order
(1) This section applies if the registrar believes on reasonable grounds that—
(a) a licensee or former licensee (the entity) has provided a construction
service otherwise than in accordance with this Act or an operational
Act; and
(b) it may be appropriate to make a rectification order.
Examples of licensee or former licensee
1 a licensed builder does building work
2 a drainer who was licensed, does sanitary drainage work while
unlicensed
25
3 a licensed gasfitter does gasfitting work and then becomes unlicensed
Note 1 If deciding under this section whether it may be appropriate to
make a rectification order, the registrar must consider the
considerations mentioned in s 36.
Note 2 An example is part of the Act, is not exhaustive and may extend,
but does not limit, the meaning of the provision in which it
appears (see Legislation Act, s 126 and s 132).
(2) The registrar may give the entity, and the land owner in relation to whose
land the construction service was provided, a written notice that—
(a) gives details of the rectification order that may be made; and
(b) explains why the registrar intends to make the order; and
(c) invites submissions about the making of the order within the time
stated in the notice that is not less than 5 working days after the day
the entity or land owner receives the notice; and
(d) states that—
(i) the registrar will not make a rectification order if the registrar
is not satisfied that it is appropriate to make a rectification
order in relation to the entity; and
(ii) if the registrar does not make a rectification order the Territory
may authorise someone else to do the things stated in this
notice, and the entity will have to pay for the things to be done.
12. The section 34 notice according to sub-section 34(1) should give details of the
rectification order that may be made; and, explain why the Registrar intends to
make the order.
13. In this case, the Registrar in the notice advised the applicant that he was
investigating a complaint regarding the subject building, and that it may be
appropriate to make a rectification order. He then outlined the history of the
complaint.
14. The notice went on to set out the Registrar’s explanation for considering the
making of an order. It states that section 37 of the Building Act 1972 requires
that all building work be carried out in compliance with the BCA, and goes on
to list eight categories of defect that allegedly breach the BCA and set out
corresponding performance requirements. These allegations drew on the report
of Mr Stephenson. A summary of them follows:
1) Cracking of external façade.
2) Penetration of water into carpark roof.
3) Penetration of water into ceilings and walls of units.
26
4) Penetration of water from balconies into units.
5) Corrosion of steel framework in balconies.
6) Failure of waterproofing in bathroom areas.
7) Defective parapet capping.
8) Defects in roofing.
15. This part of the notice concludes as follows:
In considering the criteria under section 36 of COLA, I have reason to
believe that the construction of the waterproofing, drainage, roofing and
external facade, fails to comply with the approved plans and standards
stipulated in the Building Code of Australia.
16. The section 34 notice then sets out proposals for a rectification order consisting
of a timetable for investigation and execution of work found to be defective.
17. It is appropriate to note at this stage that section 35 of the COLA provides a 10
year time limit on the issue of a rectification order. This provision will be
referred to again later.
18. The applicant responded to the section 34 notice on 11 October 2013,
immediately raising the limitation period just mentioned. This submission was
developed by the applicant at the hearing and will be dealt with in due course in
these reasons.
19. The applicant’s response also included two expert reports from a structural
engineer and an ‘experienced building and construction expert’ who were later
called to give evidence.
20. The response also alleged that the owners of the units had failed to properly
maintain the building, and that there had been no breach of the BA or the BCA.
21. The respondent issued the rectification order on 21 November 2013. It was
served on 25 November 2013.
22. It identified the same eight areas of alleged defect referred to above which were
the subject of the section 34 notice.
27
23. The applicant filed an application for review of a decision dated
16 December 2013 on the same date. It sought review of the rectification order
of 21 November 2013.
The hearing
24. This proceeded in the usual manner with the applicant calling his evidence first.
Unfortunately because of the extended time taken by the hearing, the need to
adjourn from time to time, and the availability of witnesses, it was necessary to
take some witnesses out of order.
25. Two owners of units in the building as well as the Owners Corporation were
joined to the proceedings, and in combination the Owners Corporation and the
individual owners called evidence and cross examined witnesses.
26. Evidence was concluded on 30 July 2015 and directions were given for the
preparation and filing of written submissions.
Issues
27. The decision which is the subject of review is the decision to issue the
rectification order. That decision was preceded by another one, and that was to
form the intention to make a rectification order and issue a section 34 notice as a
consequence. The content of the section 34 notice will have a bearing on the
content of the rectification order. The applicant submitted that the terms of the
section 34 notice constrained the terms of the rectification order that could be
made.
28. Section 34 permits the Registrar to issue a section 34 notice if a construction
service has been provided by a licensee otherwise than in accordance with
COLA or an operational Act, and the Registrar considers it appropriate to do so.
Section 34(2)(a) provides that details of the ‘rectification order that may be
made’ must be provided. It is the provision of the construction service and its
nature which is the precondition for the issue of the section 34 notice, and
indeed for the later making of a rectification order and details must be given.
Detail of the actions required for rectification must also be given.
29. Both the section 34 notice and the later rectification order referred to two
separate areas. The first was specification of the defects alleged; and the second
28
was a direction regarding the appointment of an engineer to assess those alleged
defects and describe the matters found to be defective with the applicant being
required to rectify those defects. The second matter was something which was
ancillary to the statutory requirements.
30. Section 35 makes it clear that a rectification order can be made if the entity
provided part or all of the construction service to which the notice related; and,
the Registrar after considering submissions considers that there has been
contravention and it is appropriate to make an order.
31. The Tribunal takes the view that section 35 contemplates the possibility of some
change in the position of the Registrar after considering submissions following
the service of the section 34 notice with the possibility of some consequent
variation in the precise terms of the rectification order made comparative to the
order proposed in the preliminary notice. Section 34 refers to an order that may
be made, and in some cases it may be a question of degree when comparing the
proposed terms of the section 34 notice with those made in the final order.
Adequate warning of the defects alleged to constitute breaches must be given.
Methodology
32. There is a great deal of evidence. The transcript runs to 2626 pages, and all
parties filed statements of the evidence of witnesses prior to their being called.
The eight issues listed in the section 34 notice formed the focus of the evidence,
and the applicant raised a number of preliminary issues prior to evidence being
given.
33. Since these were raised by the applicant both in his opening and in written
submissions, it is appropriate to examine these to the extent necessary at this
stage prior to moving to the individual items in the rectification order. Those
issues are listed at paragraph 17 of the applicant’s written submissions.
Time – Section 35(3) of the COLA Act
34. This issue was raised by the applicant at the commencement of the hearing. The
Tribunal was invited to deal with it as a preliminary issue, however, that was
not considered appropriate and the hearing proceeded. However, it has remained
as a matter for determination by the Tribunal. The applicant submits that sub-
29
section 35(3) of COLA applies and that the time in which a valid rectification
order (RO) could be made had expired. Sub-section 35(3) is reproduced below.
(3) However, the registrar may not make an order under section 38 in relation
to the entity if a submission is made that satisfies the registrar that the act
that caused the contravention happened, or ended, more than 10 years
before the day the registrar proposes to make the order.
Example of contravention
A builder built a house without a building approval. The registrar is satisfied that the
building of the house started 12 years ago and finished 9 years ago. The registrar may
make a rectification order in relation to the construction service of building the house.
35. The factual background to this issue was not in contention. It was as follows:
27 Sep 02 Building approval granted for construction of
‘Manhattan’ apartments
3 Feb 03 New certifier appointed
24 Jul 03 Majority of construction work completed
13 Oct 03 to 28 Oct 03 Certificates of warranty received from trades
relating to completed work
4 Nov 03 Certifier conducts final inspection. Notes
certificates not complete and fire clearance to be
arranged
20 Nov 03 The certifier signs the declaration for the
Certificate of Occupation and Use
25 Nov 03 Certificate of Occupation and Use issues
36. The applicant identified a number of parts of section 35(3) for consideration
within this issue, and submitted that the words ‘may not’ where used are
proscriptive, leaving the Registrar with no discretion. This interpretation was
not opposed by the respondent, and the Tribunal accepts this submission.
37. The beginning and end of the ten year term is a matter of controversy between
the parties. The ten year period ends on “the day the registrar proposes to make
the order” and extends back from that time. The act that caused the
contravention must have happened or ended within that period.
38. The applicant submits that a narrow and literal interpretation must be applied so
that an action done by the licensee must be identified which is associated with
the contravention alleged. If there are a series of acts, then those that occur
within the ten year period are potentially subject to an RO. The respondent and
30
the parties joined advocated a broader approach. They say that ‘act’ can not
only be an individual and simple action but also a composite action consisting
of a number of individual actions. On this interpretation, the construction of a
building by a builder can be considered to be an ‘act’. So that the act that caused
the contravention, being the construction of the building, ended when the
building was completed. Use of ‘ended’ supports the ending of a process which
can be considered not only as a complex continuing process, but also as a large
number of simple but related actions.
39. The respondent specifically relies on part of the Explanatory Memorandum to
the COLA which in relation to clause 35 states as follows:
...Clause 35 enables the registrar to make an order under Clause 37. The
registrar must be satisfied that the person is contravening, or has
contravened, this Act or an operational Act and that it is appropriate to
make a rectification order. However the clause prevents an order from
being given where the registrar is satisfied that the relevant contravention
happened, or was part of something that ended more than 10 years
previously and provides an example. (emphasis added)
40. The Tribunal accepts the submission that it is the ending of the construction of
the building which is ‘the act’ which constitutes the relevant contravention of
the applicant builder in the present circumstances. It also finds that the ‘act that
caused the contravention’ must be interpreted against the context in section 34
and section 35 of a rectification order being made where a licensee has provided
a construction service in contravention of a defined Act. This context requires
consideration of the nature of the construction service that has been provided, so
that in appropriate circumstances, it would be reasonable to regard the
construction service provided by a builder as including all activities going to
make up the construction of a completed building.
41. If the applicant’s contention is correct and the act that caused the contravention
is a single and discrete simple action such as the provision of plumbing to a
bathroom or provision of plumbing to an apartment complex, then for a
complex building there could be multiple section 34 notices and multiple
rectification orders issued. It would be much more practical from this point of
view to issue one rectification notice which relates to all matters.
31
42. This interpretation is supported by the example given at the end of the section
which describes the building service provided by the builder as being the
construction of the house. Thus the ‘act that caused the contravention’ was the
completion of the building in contravention of COLA or an operative Act. The
specifics of that failure are referred to later in these reasons for decision.
43. The date of the ending of the act causing contravention is therefore the date of
completion of the building. In this case, the certifier made a final inspection on
4 November 2003, however there were further fire safety formalities to be
attended to. On 20 November 2003, the certifier signed a declaration for an
application for a ‘certificate of occupation and use’ which was issued on
25 November 2003. It was on that date that the building could be regarded as
having been completed.
44. The date from which the ten year period is to be calculated is ‘the day the
registrar proposes to make the order’. The applicant submitted that this occurred
immediately prior to the Registrar signing the RO. The countervailing argument
is that a rectification order was proposed by the Registrar when he commenced
the process referred to in section 34.
45. If the submission made by the applicant were accepted there would be little
point in the legislature referring to an order that was proposed, it would be
clearer to fix the later point in time as being ‘the time at which the order is
made’. If the time were not the earlier time when investigation is commenced
and appropriate submissions are called for, the process could be disrupted or
even completely frustrated by delay caused by the licensee.
46. The Tribunal is therefore satisfied that the date from which the ten year period
is retrospectively calculated is the day on which the Registrar signed the section
34 notice which was 8 July 2013. The rectification order was therefore made
within the permitted time period.
Section 34 Notice
47. As has been stated in the introduction, this is the review of a decision made by
the Registrar to make a rectification order following the issue of a notice of
32
intention to issue a rectification order. The review is somewhat unusual because
of the preliminary requirement to issue the notice of intent.
48. The applicant argues that the content of that notice constrains the extent of the
rectification order that can be made, and the Tribunal agrees with the general
substance of that submission. Notice of matters potentially requiring
rectification should be given in the section 34 notice in order to allow the
licensee an opportunity to comment and make submissions. However, the extent
and content of the notice and its relationship to the final order made will vary
and will have to be dealt with on a case by case basis.
49. It is appropriate to note the discretionary nature of the powers given to the
Registrar under section 34. Aligned to that consideration is the evident
motivation of the legislature in ensuring disclosure of the problems alleged to be
requiring rectification, and permitting an opportunity to investigate and answer
them. Issues of fairness are prominent, and there is little room for a confined
and legalistic approach to the role of the section 34 notice. It could be expected
that in most cases there would be some submissions made by an entity
following the service of a section 34 notice and that as a result of those
submissions the Registrar may alter his position. A degree of flexibility in the
system could be expected to allow for that process.
50. Having stated that the Tribunal generally agrees with the applicant’s
submissions regarding the section 34 notice, it will be necessary to return to this
topic in relation to some of the individual issues.
Interpretation of the BCA and how it is ‘picked up’ by the BA
51. At paragraph 53 of his written submissions, the applicant submits as follows:
There is no doubt that Section 40A [of the Building Act 1972] imposes an
obligation to carry out building work in accordance with the requirements
of the BCA. However, the section is only contravened if the person does
not have a reasonable excuse.
52. He further submits that the respondent is incorrect in asserting the whole of the
BCA is picked up by sections 37(a) and (b). He submits that those subsections
deal only with the materials used in building work and their methods of use.
“Neither paragraph picks up the majority of the provisions of the BCA, which
33
are not related to building materials but to general matters of building
construction work.” The submission continues as follows:
57.But none of the allegations considered by the Tribunal has anything
to do with particular building materials and their method of use. They
relate to matters such as water penetration and the like, which are not
related to building materials but to general matters of building
construction.
53. The Tribunal does not agree with this submission. It is possible that all
provisions of the BCA are to do with the materials used in building work and
their methods of use so that section 37(a) and (b) in combination do pick up all
of the BCA. Whether the respondent alleges that point is moot because the
respondent at paragraph 4.3 of his written submissions abandons any reliance on
sections 37(a) and (b).
54. However it is clear that section 37 does impose a requirement of compliance
with the BCA when building work is being undertaken as described in the
section. Section 40A reproduced below, creates a criminal offence when there is
non-compliance without reasonable excuse. Whether non-compliance with the
BCA for the purposes of section 40A is defined by the requirements of section
37(a) and (b) is a question which will have to be answered in other proceedings,
since it would only arise in a prosecution for an offence. The terms of section 37
are quite clear and express the obligations of persons engaged in building work
to comply with the provisions of the BCA. Consideration of whether a
rectification order should be made is not to decide whether an offence has been
committed.
55. Finally at paragraph 58, the applicant submits as follows:
Accordingly, the applicant submits that when the Tribunal comes to
consider allegations involving the provisions of the BCA, it can only do so
in the context of the requirements of Section 40A not Section 37.
56. This may become academic because of the respondent’s abandonment of the
first two subsections of section 37, however, the Tribunal cannot agree with that
statement. The provisions of section 37 are clear and whether they are
applicable will become apparent when individual issues are dealt with. As has
been stated previously, the Tribunal is not considering, and has not been asked
to consider, whether the applicant has committed an offence under section 40A.
34
Considerations of whether he had a reasonable excuse for failure to comply with
a provision of the BCA would only be relevant in the context of such a
prosecution. They are extraneous to a consideration of whether a rectification
order should be made under part 4 of COLA.
57. The above determination is relevant to the applicant’s similar submissions in
relation to section 41A of the BA the relevant provisions of which are
reproduced below.
58. Section 41A relates to compliance with section 37. The applicant’s submissions
continue with reference to section 41A which creates an offence relating to non-
compliance in the following terms:
41A Carrying out building work in breach of s 37
(1) Building work (other than maintenance or cleaning of a specialised
system) shall not be begun or carried out except in compliance with
section 37.
59. There is a defence to the offence created for a builder if he had a reasonable
belief that section 37 had been complied with in the terms of sub-section (5) set
out below:
(5) It is a defence to a prosecution against a person other than the owner of a
parcel of land if the person satisfies the court that—
(a) he or she had carried out the building work under a contract
entered into by him or her with another person or at the
request and on the instructions of another person; and
(b) that he or she believed on reasonable grounds that—
(i) a building approval had been issued in relation to the
building work; and
(ii) the work has been carried out in compliance with section
37.
Failure to comply with approved plans
60. The applicant submits that a failure to follow the approved plans should not be
permitted to form the basis for a finding of defective work. The submission is
primarily based on two grounds. The first that there was no reference to at all to
failing to build in accordance with the approved plans in the section 34 notice or
the section 38 order. A sub-argument related to this is ‘is it possible to identify
the approved plans having regard to lapse of time, and some apparent gaps in
35
the plans that are available’. The second was the interaction of section 37(d)
with section 40(1)(a) which authorises a certifier to certify that a building has
been completed substantially in accordance with the approved plans.
61. As to the first, the section 34 notice does refer to the approved plans in the
quotation reproduced at paragraph 15 above.
62. The Tribunal has already referred to a flexible approach to the content of the
section 34 notice, provided areas of alleged defect are sufficiently identified.
This issue will arise in individual items and will be dealt with then.
63. As to the second matter, the section 40(1)(a) issue. Section 37(d) is quite plain
and unambiguous. Section 40(1)(a) does repose some discretion in a certifier,
however, that is a separate issue to the fundamental statement of obligation
contained in section 37(d).
64. To the extent that section 37(d) is an issue, this will be dealt with later in the
context in which it arises.
Individual issues
1) Cracking of external façade
65. The section 34 notice at paragraph 16 refers to ‘Cracking in the External
Facade’. It is referred to as being a breach of Performance Requirement BP1.1
of the BCA. This area of alleged defect in the building is dealt with as a separate
topic in the Diagnostech report of 17 August 2012 included in the T documents
and a copy of which was included with the section 34 notice. The notice refers
to a number of sections of Appendix A to the report which set out individual
instances of cracking. Each instance is accompanied by a photograph.
66. The section 34 notice reference to the performance requirement is referred to
above. The summary at page 93 of the Diagnostech report alleges breach of the
requirements of section 37(a), (b), (c), and (d) of the BA. It also refers to the
performance requirement previously referred to and to section 2.5.2.2,
Differential Movements of the Masonry Structures Code which is Australian
Standard 3700 (AS 3700) and which is called up by section B1.4 of the deemed
to satisfy provisions of the BCA.
36
67. Section 2.5.2.2, Differential Movements Masonry Structures is quoted in the
report as follows.
A masonry member or structure shall be designed to allow movements to
be controlled or isolated so that damage to the masonry, the building, and
its components is avoided….
68. The sections of the Diagnostech report which are referred to in the rectification
order are not grouped together, although some are identified by proximity to
specific units. Each instance is identified by a description and photograph. The
report describes (at paragraph 3.2.1) the defects as follows:
The recorded defects comprise inadequate construction of the building
structure. Inadequate control of building movement has resulted in
uncontrolled cracking of façade elements including masonry, EPS panels,
fibre cement sheeting, render and applied coatings.
Cracks have been recorded as defects in the Defects Schedule only where
they are determined by the author to be significant cracks i.e. in excess of
1mm wide. The façade render elements also exhibited numerous minor
cracks i.e. less than 1mm in width, however these have not been
incorporated in this report.
69. The Tribunal has had the advantage of inspecting the building. A sample of the
cracking defects referred to in the report was inspected and noted.
70. The applicant in his written submissions asserts that the cracking identified is
superficial and limited to affecting the render only.1 It was further suggested
that the cracking should have been attended to when the exterior of the building
was painted by the owners’ corporation for the first time. If there was any need
for the insertion of control joints, this should have been done at the same time.
Presumably it followed that this work should have been done at the owners’
corporation’s expense.
71. There is a report by Alan Tingcombe, a specialist structural engineer, and
director of the engineering firm known as AWT Consulting Engineers. He was
called as an expert witness by the applicant. He had read the Diagnostech report
and had visited and inspected the site on 23 June 2014.
72. Touching the issue of the façade cracking, he was critical of the statements
regarding structural integrity at paragraph 3.2.2 of the Diagnostech report,
1 Paragraph 136ff
37
observing that statements relating to structural integrity were not supported by
any calculations or evidence of that type. He said that all buildings crack
including a building such as the subject premises comprised of steel, concrete
and masonry members. It was in the nature of the structure.
73. He concluded the part of his report which discussed the façade cracking as
follows:
The level of cracking and structural movement is to be expected in a
building of this age and type, especially considering the diversity of the
materials used in and around the structure.
74. In making the rather sweeping statement contained in that sentence, he does not
descend to the level of detail of individual instances referred to in the
Diagnostech report; he does not distinguish between cracks of different widths;
nor does he comment on the issue of and role of control joints inserted to deal
with the inevitable movement in the structure he refers to.
75. The Tribunal notes the views of Mr Tincombe, however is of the view that his
opinion has only limited application due to his lack of reference to control joints
and cracking greater than 1mm in width.
76. Mr Ken Murtagh, an engineer who worked on the construction of the building
and was called to give evidence by the parties joined, said in his statement that
cement based render requires control joints to limit shrinkage cracking.
77. The applicant responded to the section 34 notice by letter of 9 December 2013.
He accompanied this submission with the reports of two qualified experts. The
first of these was Darren Sault, who was a senior structural engineer with ten
years experience as a structural engineer, mostly in Canberra.
78. Amongst other documents, he had been provided with the Diagnotech report.
One of the areas dealt with briefly by Mr Sault in his report was the façade
cracking. He visited the site on two occasions in September 2013. His comment
on this issue on the second page of his report is as follows:
Cracking was primarily noticed to the external façade in the following
areas: To the eastern façade at the interface between concrete slabs and
rendered masonry walls over/under western entry. Cracking at the
parapet level through an area of fascia.
38
These cracks were noted to be façade cracks only, and minor in size (up to
1mm). The extent of this cracking is not considered extensive. It is my
opinion that the cracking is due to building movement and/or settlement,
and should be repaired with a flexible sealant, and monitored for any
further movement or cracking. There is no suggestion that the building
structure is inadequate due to several minor cracks noted in the facade.
79. The Tribunal is unable to accept the opinion of Mr Sault. His description of the
number of locations of cracking indicates that he had not taken into account the
detail contained in the Diagnostech report at the time of his inspection. His
description of all the cracking as being minor and less than 1mm is contrary to
the photographic evidence; the observations of Mr Stephenson, and those of the
Tribunal. He also does not note the absence or otherwise of control joints.
80. The other expert opinion obtained by the applicant was from Martti Honkanen
who was the principal of Mareva Building Consultants with tertiary
architectural qualifications.
81. In dealing with the allegation of cracking in the external façade he said that
minor cracking due to shrinkage and similar causes resulting in hairline cracks
less than 1mm width were not a building fault and could be addressed as part of
routine maintenance. However, he concluded this section of his report as
follows:
I am in agreement with the stated allegation, however, to the extent that
cracking at joints where the substrate structure is able to undergo
differential movement such as at control joints, where control joints
should have been provided but have not been provided, and at junction of
dissimilar materials are building defects and breaches of the BCA
Performance Requirements BP1.1(a)(iii) regarding local damage only.
82. Mr Honkanen provided a second report of 8 September 2014 which became
Exhibit F at the hearing, however this report does not shed further light on the
façade cracking issue.
83. There were many photographs of external cracking tendered in evidence.
Exhibit AV shows a crack measured with an approximately 5 mm width.
84. The Tribunal is therefore of the view that where cracking has occurred of less
than 1mm in width, this does not constitute a defect in the building and is not
considered a breach of the BA or BCA. However, the cracking noted in the
39
Diagnostech report is a breach of section 37(b) & (c) of the BA, the
performance requirements of the BCA alleged, and AS 3700 as alleged.
85. Rectification of the defects listed in the Diagnostech report should be included
in a rectification report. Detailed description of the work to be done should be
left to submissions during the settling of a rectification order.
2) Penetration of water into carpark roof
86. This issue was described in the section 34 notice as ‘penetration of water into
the carpark roof affecting the steel support beams’. Eleven of the sections in the
Diagnostech report were cited as evidence of this problem.
87. It is not alleged by the Registrar that there is a relevant breach relating to the
basement walls, and the Tribunal accepts this submission. Water entry through
the walls was not the subject of notification in the section 34 notice. The roof of
the basement was not treated in the Diagnostech report as an item separate from
the basement walls so it will be necessary to be aware of this distinction during
analysis.
88. The section 34 notice referred to this alleged defect as follows:
2. The penetration of water into the carpark roof affecting the steel support
beams is a breach of the following BCA requirement:
BCA-Part F1 Performance Requirements FP1.3.
A drainage system for the disposal of surface water must:
a) convey surface water to an appropriate outfall; and
b) avoid the entry of water into a building; and
c) avoid water damaging the building.
89. The plans for the building between pages T-Doc 756 and T-Doc 764 show that
the basement extends beyond the footprint of the upper part of the building to
the west, north and east. Generally the plans show that these areas were to have
a concrete slab roof to the basement and that this slab was to have a waterproof
membrane and to be covered by ceramic tiles. An example of this can be seen
on the section plan D-D at T-Doc 762. However, there is an area at the front of
the building where the podium is stepped down and garden is planted over the
podium roof.
40
90. The applicant gave evidence that a torch-on waterproof membrane was applied
to the slab over this stepped down area of the podium of the basement at the
front of the building.2 This was in accordance with the plans which showed a
waterproofing membrane in this area.
91. His evidence appears to conflict with the evidence of the witnesses from Roof
and Balcony Solutions (‘RnB Solutions’) referred to later to the effect that a
paint on membrane was found in this area.
92. The unit owners engaged a waterproofing firm, RnB Solutions, to investigate
and report on water leaking from the podium area. Mr Miller and Mr Parnaby
from that firm inspected the area and a report and some photographs were
admitted into evidence. They found that there was indeed no membrane over the
podium other than in the front garden area where paint on membrane had been
used. Although there was no membrane elsewhere on the top of the podium area
slab, paint on membrane had been applied there to the interface of the walls of
the building and the horizontal surface of the podium. However, they found that
the membrane had not been turned up the wall above paver height so that the
edge was exposed and vulnerable to possible failure. They also found that the
membrane had been terminated on the slab so that the leading edge was exposed
and vulnerable to possible to failure. There was delamination due to moisture.
93. An inspection pit was dug down to the podium outside Unit 2 at the northwest
corner of the building where the slab was stepped down. Mr Miller a principal
of the firm, described taking the inspection pit down to the podium level and
finding on the horizontal surface a protective covering, Corflute, overlying and
adhering to a paint on membrane.3 When a portion of the membrane was lifted,
the substrate underneath was found to be sodden. Photographs included in
Exhibit AW1 were taken in the basement below where the excavation had been
made showing areas of obvious water entry.
94. However in the other podium area, the plans showed ‘ceramic tiles on
waterproofing membrane laid to falls’. The applicant decided to alter this
2 Transcript of Proceedings 14 December 2014 page 585 and T-Documents page 762 3 Transcript of Proceedings 6 May 2015 page 2119
41
specification.4 He added Xypex to the cement which was poured to form the
roof, omitted the membrane and substituted concrete pavers laid on sand for the
ceramic tiles. No provision was made for drainage of the area above that part of
the podium by creation of a fall across it. No approval for this change was
obtained. The available documented landscape plans do show concrete pavers as
opposed to ceramic tiles in the relevant area, however, amendments approved in
the plans do not relate to the changes made by the applicant.
95. The applicant explains why the plans in relation to the terrace decks, also
referred to as the basement podium roof were not complied with in his
evidence.5 He said that he made this change because the pavers had more slip
resistance than a ceramic tile does. He did not say why approval for the change
was not obtained.
96. Although the section 34 notice refers to breach of performance requirement
FP1.3 (disposal of surface water) of the BCA, FP1.4 is also relevant since the
external part of the slab forming the ceiling of the basement is its roof in the
podium area. The entry of water through the external slab is in breach of this
performance requirement. FP1.4 is reproduced below:
BCA-Part F1: Performance Requirements FP1.4:
A roof and external wall (including openings around windows and
doors) must prevent the penetration of water that would cause –
(a) Unhealthy or dangerous conditions, or loss of amenity for
occupants; and
(b) Undue dampness or deterioration of building elements.
97. There is a limitation noted to this provision relating to class 7 buildings.
However this does not apply due to the presence of structural steel beneath the
slab roof and its vulnerability to corrosion.
98. The Diagnostech report notes at paragraph 3.9.1 as follows.
A review of construction plans revealed that a waterproofing membrane
to basement perimeter block walls and ground level terrace decks was a
requirement of the works.
4 Transcript of Proceedings 14 December 2014 page 585 5 Transcript of Proceedings 14 December 2014 page 587
42
……. Diagnostech consider the issue to be non-compliant with the plans
and specifications for the building.
99. The applicant notes the use of ‘avoids’ in FP1.3, and submits that in the context
its use does not exclude the entry of all water into the building. The Tribunal
considers that in the present context the meaning of avoid is ‘prevent’, and that
by its wording, the performance requirement excludes entry of water into the
building by surface water.
100. The applicant submits that there is no breach of FP1.3 because the basement is a
class 7 building. However, inspection of the basement and photographs in
evidence indicate that the concrete slab making up the roof is supported by steel
beams, and water in the area of them is causing corrosion. The Tribunal finds
that a membrane and ceramic tile covering for the external slab was specified in
the plans to prevent intrusion of surface water into the basement in order to
prevent damage to the steel supporting beams. Photographs accompanying the
Diagnostech report show corrosion to steel structural members due to the
presence of water.
101. The section 34 notice alleged that there had been breach of performance
requirement FP1.3 of the BCA but did not mention the plans or FP1.4. It was
not until the hearing that the focus of breach moved to non-compliance with the
approved plans. The plans if complied with would have satisfied FP1.3 and
FP1.4. The issue was the subject of evidence given by the applicant at the
hearing and other of his witnesses and also expert evidence called by the
applicant and the other parties.
102. The respondent submits that the plans specify that the basement roof has to have
“ceramic tiles on waterproof membrane laid to falls”.6 This specification has
not been complied with and is therefore a contravention of section 37(d) of the
BA.
103. In his evidence, Mr Murtagh stated that he would not expect Xypex to be used
as a primary membrane. His expectation was that he would expect a
6 Respondent’s submissions at [21.1]
43
waterproofing membrane to be applied to the top of the slab even if Xypex was
used as an additive to the concrete slab.7
104. The applicant submitted that there was no identified source for the water to be
coming in through the basement roof. Mr Stephenson was asked directly “Is
there water that penetrates through the roof in your view?---Yes.”8 It was
evident that there was cracking in the slab over the podium which provided a
means of entry of water. In a report relating to the corrosion of steel members in
the basement, Dr Jeffrey a chemist called to give evidence on corrosion said at
paragraph 37 of his report which was accompanied by two photos:
Corrosion on the blue channel beam in the basement had been caused by
ingress of water from above as shown by run marks in [photo] 3 and edge
ponding in [photo] 4. Corrosion has not been caused by atmospheric
moisture.
105. Mr Stephenson said that any post construction cracking would render the Xypex
treatment useless.9 He went on to say the following:
A lot of cracking is anticipated in slabs, and it doesn’t necessarily
represent a problem at all. It does represent a problem if it’s an external
slab and you’re relying on Xypex to keep it waterproof.10
106. Ingress of water into the basement beneath the podium area was facilitated by
the change from ceramic tiles. Mr Miller said that ceramic tiles laid to drain to
the perimeter would provide a better water protection mechanism than concrete
pavers.11
107. The Tribunal is satisfied that the Ultrafloor method of construction was likely to
cause cracking in the concrete floor slabs over the podium due to the composite
nature of the slab and differential movement of the building elements. This was
demonstrated by the opinions in expert testimony and observations during
deconstruction of the balconies. Water was observed to be dripping from the
roof area causing efflorescence and a nuisance when dripping onto motor
vehicles parked below. The Tribunal finds that the source of the water was
7 Transcript of Proceedings 5 May 2015 page 1999 8 Transcript of Proceedings 11 March 2015 page 1749 9 Transcript of Proceedings 11 March 2015 page 1748 10 Transcript of Proceedings 11 March 2015 page 1749 11 Transcript of Proceedings 6 May 2015 page 2127
44
surface water passing through the slab due to an absence of an effective
membrane and tiling system to exclude that water which was specified in the
plans. It is also a breach of BCA FP1.3 and FP1.4 since no alternative solution
was formulated.
108. Failure to comply with the plans is a breach of section 37(d) of the BA. It results
in non-compliance with performance requirement FP1.3 and FP1.4 of the BCA,
and forms a basis for the making of a rectification order.
109. There is some existing corrosion of structural steel members in the basement
area. Rust on all steel members under the podium area should be removed, and
the members coated with rust inhibitor. Mr Murtagh referred to the provision of
ground level collars to protect the base of columns.12
These collars should be
provided by way of remediation. Rust should be removed from all structural
steel, which is then to be fully primed as specified by the engineer on T-Doc
783, ‘Structural steelwork finish’.
110. The podium area of the basement roof including the roof to the garbage hopper
area and the front northwest garden area should be exposed and a torch on
membrane provided with suitable flashing where appropriate. This area with the
exception of the under garden area to the west should be covered by ceramic
tiles of a neutral colour agreed to by the parties joined and with a non-slip
surface with falls away from the building. The lintel beam at the entry to the
garbage hopper area should be inspected by an engineer after initial rust
removal. If in the engineer’s opinion the previous rusting has rendered the lintel
structurally unsound (ie. an expected reduction in useful life expectancy of >30
years), it should be replaced. The beam is to be fully primed as referred to
above.
3) Penetration of water into ceilings and walls of habitable units
111. This allegation relates to penetration of water into the building, and has been
treated separately in the section 34 notice and the rectification order. The
respondent in his submissions has combined his submissions in this area with
those of Item 4. The individual components of this item shall be dealt with
individually.
12 Transcript of Proceedings 5 May 2015 page 2007
45
112. Item 86 – This relates to a defect in the ceiling in a common area on the first
level. There is inadequate evidence to indicate that this defect is related to water
entry. The Tribunal makes no finding in relation to it.
113. Items 143 to 145 – These items relate to Unit 19, a unit on the second level with
significant problems due to entry of water. Two other items, 146 and 147, which
relate to Unit 19 are attributed to water entry from the balcony to Unit 26 above.
The Diagnostech report does not attribute the noted problems in Unit 19 noted
as items 143 to 145 to a particular cause, preferring to recommend further
investigation. The Tribunal is not able on the evidence available to make any
specific findings in relation to these items. It seems likely that if leaking from
the balcony above is attended to, these items will be addressed.
114. Item 222 – This is listed as an isolated occurrence described as ‘poorly detailed
service penetration’, evidence of water penetration. This shows an area of a
balcony adjacent to Unit 29. This services penetration will have to be dealt with
if waterproofing of the balcony is carried out.
115. Item 249 – This shows an isolated occurrence of water penetration and further
investigation as to the cause is recommended. The possibility of a roof leak is
referred to. The Tribunal has insufficient information to make any order.
116. No item in this grouping should be included in a rectification order.
4) Penetration of water from balconies into habitable units
117. This issue was described in the section 34 notice as follows:
The penetration of water from the balconies into habitable units is in
breach of the following BCA requirement:
BCA-Part F1: Performance Requirements FP1.3:
A drainage system for the disposal of surface water must:
(a) convey surface water to an appropriate outfall; and
(b) avoid the entry of water into a building; and
(c) avoid water damaging the building
118. The balconies on this level, level 3, are in fact roof terraces, since they form the
roof of portion of the unit below. However, for ease of reference they will
continue to be termed ‘balconies’.
46
119. The performance requirement quoted above is not the most appropriate to
describe the entry of water from the balconies into units because the balconies
form the roof of part of the units below. FP1.4 is more appropriate in those
circumstances.
120. The nature of the problem was notified in the section 34 notice and the matter
was extensively canvassed during the hearing. The specification of FP1.3 in the
section 34 notice appears to be an error of no consequence.
121. The unit block is made up of five levels of units. The first level consists of nine
units numbered from 1 to 9, and this is referred to as the ground floor. It is
immediately over the basement which houses resident’s storage, car parking,
and a garbage management area. The second level is known as level 1, and it
has eight units numbered from 10 to 17. It has the same number of units and
same floor plan as the third level above it.
122. Units 18 to 25 are on level 2 (the third level of units). Units 26 to 30 are on level
3, (fourth level). All these units have balconies which are roof terraces. There
are two units on level 4: 31 and 32. All units have balconies. The section 34
notice does not specify the individual units that are the subject of this alleged
defect, however the rectification order that was made by the Registrar does so. It
alleges water entry issues related to Units 17 to 32 inclusive. With the exception
of Unit 17, the units are from level 2 to level 4. Unit 17 has been included by
virtue of a tiling issue which is shared by some of the other units however, this
does not appear to have translated into a water entry issue at this stage. The
defect alleged in Unit 17 has not been the subject of adequate section 34
notification and will not be included in any rectification order.
123. The five units on level 3 are set back from the edge of the lower building
footprint and there are balconies to the edge of the building at which there is a
brick and render parapet. One of the five units has one balcony, two of them
have two balconies, and two of them have three balconies. The balconies are
tiled and there is a mansard roof which forms an ornamental feature at each
corner of the building and at the front and the rear, and with the exception of the
side balconies to the north and south, divides the balconies from each other. The
balconies on level 3 form part of the roof of the units on level 2 immediately
47
below level 3. Each unit on level 2 has some part of its habitable rooms (which
include bedrooms) under part of a balcony on the level above.
124. All units on level 2 and level 3 except for Unit 20 which is under Unit 27, the
balconies of which have been rectified, are reported as having issues arising
from entry of water from the balconies on level three. When the rectification
work was done at Unit 27, the tiles were removed, the bedding removed, the
membrane removed, wall areas and doorways rebuilt, new membrane was
applied and the tiles relaid. This work has been associated with amelioration of
entry of water into units. It was done by contractors for the owners’ corporation.
125. The applicant undertook some remediation work on the balconies of Unit 29.
The nature of this remediation work was described briefly in the evidence.
Evidence from the owner of the unit below indicates that although successful in
stemming the leaks into her unit temporarily, there was a reappearance of water
later.
126. The rectification work that has been done to date has revealed that some of the
waterproofing work that had been carried out on these balconies was defective.
Evidence was given by a witness who supervised the remedial work on Unit 27,
Mr Brett Cawsey. He described a number of faults which contributed to the
entry of water into the adjoining unit and roof void. These permitted water to
penetrate through the slab into the unit below.
127. Mr Cawsey described the installation of a torch on membrane to the balcony
substrate after removal of the previous water proofing membrane; provision of
sand screeds and laying of tiles with adequate expansion joints; removal of the
doors, reinstating wall timbers and cladding; installation of membrane behind
the doors and sills and along the bottom of the walls.
128. The firm that undertook the work on the balconies of Unit 27 were asked by the
managing agent to prepare a quote for the rectification of the balcony areas of
Unit 26. This quote was admitted into evidence as Exhibit AS4. This work was
not carried out, however the listing of work to be done is an indication of the
work required to achieve rectification of each balcony on level 3 and is referred
to later.
48
129. Evidence regarding the remedial work done on level 3 balconies caused the
applicant during the hearing to reassess his approach to this item of the section
34 notice and rectification order that had been made. In their written
submissions, counsel for the applicant submitted the following after briefly
reviewing the available evidence regarding the remedial work:
….the Applicant accepts that the Tribunal has enough evidence from these
sources to find that the waterproofing was not done on these balconies in
accordance with the BCA requirement FP1.4….
Specifically, the Applicant admits that the waterproof membrane was not
properly laid
(a) to the hobs up and under the balcony doors, and
(b) turned up adequately above the level of the skirting tile; and
(c) at the junction between the blueboard and the concrete floor below
the mansard roofs.
130. In making these admissions, the applicant pointed out that the section 34 notice
had said that the leaking from the balconies was alleged to be a breach of
performance requirement FP1.3 which relates to drainage systems. The
applicant said that his admission was for the purposes of FP1.4 which was the
appropriate performance requirement and that the reference to FP1.3 presented a
problem for the Tribunal.
131. The applicant also referred to evidence given in relation to the deconstructed
balconies which related to the discovery of cracks in the concrete slab consistent
with them having been caused by differential movement of the Ultrafloor
components. The applicant submitted that it was unnecessary for the Tribunal to
make any finding in relation to that cracking since the work that would be done
in relation to the insufficiency of installation of the membrane against the walls
and under the floors would result in rectification of that cracking.
132. The Tribunal does not agree with these submissions in their entirety. Firstly as
to the performance requirement specified, FP1.4 describes the situation better,
however FP1.3 is not entirely inappropriate. The section 34 notice gives
adequate notice of the problem and in the view of the Tribunal meets the
provisions of section 34.
49
133. As to the suggestion that the admission should be restricted to findings made by
the Tribunal, the Tribunal does not agree. It is appropriate to identify all causal
contribution to the leaking from the balconies to ensure that the leaking is fully
rectified. It would be inappropriate to assume that rectification of one identified
cause will result in rectification of all other causes. The evidence indicates that
the paint on membrane used, although possibly suitable for other applications,
was not suitable for use on the steel and composite slab construction method
adopted for the building in the area of the level 3 balconies.
134. The applicant also submitted that it was unnecessary for the Tribunal ‘to explore
any other issues to do with leaks in the vicinity of the balconies’. The comments
in the preceding paragraph are appropriate for this submission.
135. The applicant pointed out that the evidence of the finding made on
deconstruction of the two balconies was not put to the applicant’s witnesses. In
those circumstances, the applicant submitted that it would be inappropriate for
the Tribunal to make adverse findings about any of those witnesses on this
issue. The Tribunal generally agrees with this submission.
136. However, having regard to the admissions that have been made and the
applicant’s concession that some rectification work is indicated, it is not
proposed to extensively canvass the evidence regarding this issue. The work
that was done in rectification of the balconies of Unit 27 has already been
referred to. It is however appropriate also to mention an inspection by
Mr Stephenson of work being done by the applicant in rectification of the
balconies of Unit 29.
137. Mr Stephenson prepared a report marked as Exhibit AO1 on water proofing
failure. It is referred to by him at transcript page 1868 as being prepared for
Parchem the supplier of the paint on membrane. A balcony of Unit 29 had
leaked into Unit 24. However, there is a statement of Nancy Pedersen of 30
January 2014, owner of Unit 23. She noticed water leaking into her unit in mid
2007 in the second bedroom through the ceiling. Inspection by the applicant
resulted in rectification works. However in 2009 water started to enter the unit
through a down light in the main bedroom.
50
138. Mr Stephenson visited the site while rectification work was being carried out by
the applicant. At time of the visit, the tiles, bedding, skirting and waterproof
membrane had been removed from the balcony exposing the concrete slab. He
saw sealant joints which had been made when the membrane removal exposed
cracking in the slab. They went perpendicularly from the building wall to the
parapet wall. He thought that thermally induced cracking in the slab had
occurred.
139. Under a heading ‘Possible Cause Discussion’ he noted that the top and bottom
surfaces of the balcony were affected by differential temperature gradients. The
upper tiled surface was exposed to what he described as great thermal
variations. He said: “This may result in differential expansion and contraction
dynamics across the full expanse of the floor slabs leading to cracking.” He
listed a number of factors which may have allowed water to bypass the balcony:
Ineffective perimeter overflashings or overlapping of wall coatings etc.
Poor detailing at membrane turn up with no effective fillets and/or
bond breakers.
Potential detachment of the threshold hob and subsequent failure of the
membrane turn up detail.
Reliance on the waterproofing membrane to span across different
building substrates, ie masonry to fibre cement sheeting.
Ineffective termination at drainage outlets.
Potential shearing of the membrane due to failure to accommodate
movement in the applied tiling.
140. He said that he thought that the membrane selected was not suitable for the task.
There was cracking of the slab and it was required to span different building
material junctions. He thought that a sheet membrane system would have been
more suitable.
141. He expressed his view about the use of paint on membrane on the Ultrafloor
method of construction used.
My experience has shown that you get a pattern of a series of cracking in
Ultrafloor all the time……. So I think that … it’s a poor choice of trying
to waterproof an Ultrafloor slab.13
13 Transcript of Proceedings 11 March 2015 page 1749
51
142. The observations by Mr Stephenson were repeated when his firm was engaged
by the owners corporation to undertake rectification work on Unit 27. The
evidence given by Mr Cawsey is referred to above.
143. The evidence indicates that there are a number of problems with the
waterproofing of the balconies on level 3 requiring rectification. These
problems have resulted in water from the balconies entering the units on level
three and penetrating down through the slab into the units on level 2 below.
144. The problems which have contributed to the water entry issue include the
following:
(a) The unsuitability of a paint on membrane used over a steel and concrete
slab Ultrafloor construction method.
(b) Absence of expansion joints in the tiled surface.
(c) Inadequate waterproofing at intersection of differential substrates.
(d) Absence of a concrete hob specified in the plans.
(e) Inadequate levels of the drainage inlets from the balconies.
(f) Absence of overflashing at the wall and terrace junction.
145. The remediation which has been carried out at Unit 27 has been effective and
acts as a guide to the means to effectively remediate the problems. There is no
reason to believe that the poor construction methods seen at both Units 26 and
27 have not been replicated at all other units on level 3. Water entry problems
do not seem to be experienced in the units on level 4.
146. All balconies on the third level except for Unit 27 will have to be rectified.
Work will need to be done on the balconies on level 3 which permit water to
enter the adjacent Unit. Set out below is a summary of the problems located in
the Diagnostech Report and which will be included in a rectification order.
52
Unit Diagnost
ech
defect
number
L
v
l
Problem Rectification
required
18 133 2 East face, under Unit 26, water
penetration through ceiling
Rectify Balcony
off bed 2 Unit
26. Repair
internal damage
19 146,147 2 South East corner under Unit 26, water
penetration through kitchen, living room
ceiling
Rectify E & S
Balconies Unit
26. Repair
internal damage
21 158 2 West face, under Unit 28, water
penetration bedroom ceiling
Rectify
Balconies off
Unit 28. Repair
internal damage
22 164/5/6 2 West face under Unit 28, water
penetration through living room ceiling
and wall
Rectify
Balconies Unit
28. Repair
internal damage
23 172 3 South West corner, water penetration
through bedroom 1 wall
Rectify
Balconies off
Unit 29. Repair
internal damage
24 179-182 3 North West Corner, water penetration
through bedroom 2 wardrobe
Rectify
Balconies off
Unit 30. Repair
internal damage
25 188/189 3 West face, water penetration through
living room ceiling
Rectify
Balconies off
Unit 30. Repair
internal damage
26 196-204 3 North East corner, water penetration at
floor level in bedroom, kitchen, Mansard
roof space
Rectify
Balconies.
Repair damage
interior unit and
mansard roof
structure
27 208 3 South East corner, water penetration
damage into Mansard roof
Repair damage
in roof space
28 215/7 3 South West corner, water penetration
damage in Bedroom 1, Bedroom 2 &
living room
Rectify
Balconies.
Repair damage
interior unit.
29 219-221, 3 South West corner, water penetration in Rectify
53
Bedroom 1, Bedroom 2, Hall Balconies.
Repair internal
damage.
30 235-239
242/3
3 North West Corner, tiling on balcony,
water penetration in living room, kitchen.
Damage to structures in Mansard roof
Rectify
Balconies.
Repair internal
damage
31 245 253 4 East shower screen. Balcony skirting tiles Not related to
balconies below
32 255,258,
261
4 West tiling on balcony. Not related to
balconies below
147. Evidence was given during the course of the hearing of a proposal by the
owners’ corporation to repair the balconies of Unit 26. To that end a quote was
prepared by Remtech which had repaired the balconies at Unit 27. It was dated
22 February 2011, and was marked at Exhibit AS4. It is an indication of the
work that will be necessary for the rectification of the balconies on level 3. The
work referred to is as follows:
Strip up and dispose of all balcony tiling and thin bedding screeds
Inspect the exposed concrete balcony slabs and carry out any
necessary repairs to the substrate to ensure compatibility and adhesion
bond for the new waterproofing system
Re-detail the drainage inlets to ensure flush mounting with the balcony
floor surface
Install a new high quality torch applied bitumen sheet waterproofing
system
Progressively remove and reinstall balcony doors to enable extension
of the waterproofing system up and behind the sill thresholds
Progressively remove and reconstruct the bases of the masonry walls
and the light weight cladding walls to enable the waterproofing system
to be properly detailed and overflashed
Encapsulate the solid masonry parapet walls with a high build liquid
acrylic membrane
Lay new bedding screeds for drainage falls and retile to match the
existing as close as possible with fully formed expansion joints to the
full perimeter and laterally across the tiling to form approximate
square areas of tiling between joints
148. Rectification of the balconies and internal damage listed above should be
included in a rectification order.
54
149. Listed below are defects included in the rectification order which do not relate
to water penetration from level 3 balconies into habitable units. NL refers to
matters not litigated in the tribunal:
Unit Diagnostech
Defect No.
Defect
17 128 Drummy skirting tiles on balcony
20 149 Balcony, support steelwork, cracked render. Note, under
Unit 27 with rectified balconies
25 184-186 Miscellaneous tiling and cracking problems on balcony
(also water penetration see above)
26 191-195 Miscellaneous cracking etc on balcony, shower screen
leak (also above).
27 209 Balcony wall cap flashing
28 210-214 Wall cap flashing, masonry wall cracking, partition wall
cladding crack, shower screen
29 218, 222,
223, 224,
225, 226/7
Shower screen, poorly detailed service penetration NL,
cracked masonry NL, poor detailing ceramic tiling (will
be rectified with rectification of balcony), door reveal
separation NL, masonry cracking
30 228-234,
240-241
Shower screen, separation of elements NL, steel
corrosion etc on #5 steel, masonry crack NL, poor detail
services entry NL
31 18, 244-252 Corroded steelwork on #5, penetration of services NL,
shower screen, crack bathroom ceiling NL, steel
balustrade, ensuite ceiling water penetration NL
32 19-21, 254,
256/7, 259,
260
Steel balustrade #5, kitchen ceiling NL
150. During the course of the hearing evidence of inspection above the ceilings of
units on level 2 indicated that underslab insulation had possibly not been
installed under the level 3 slab as indicated on the plans. As this had not been
identified as an issue in the section 34 notice, the Tribunal has not furthered
enquiry into that issue and makes no findings in relation to it.
5) Corrosion in the steel framework of the balconies
151. This item is confined to corrosion on the balconies. There is a separate item
which includes reference to corrosion of structural steel materials in the
basement. The section 34 notice referred to this item as follows:
55
The corrosion of the steel framework of the balconies is in breach of the
following BCA requirement:
BCA – Part F1: Performance Requirements FP1.3
A drainage system for the disposal of surface water must:
(a) Convey surface water to an appropriate outfall; and
(b) Avoid the entry of water into a building; and
(c) Avoid water damaging the building.
152. The quoted performance requirement does not seem to be appropriate for all
instances of observed corrosion. According to Mr Stevenson in the Diagnostech
report, the problem was inadequate coating of the steel and subsequent exposure
to moisture. There were multiple reasons for the steel becoming wet, however
inadequate drainage was not the primary cause of the corrosion. The Tribunal
accepts the evidence of Mr Stephenson that inadequate coating of the steel was
the principal cause which would relate the breach to section 37(c) and (d) of the
BA.
153. Set out below is a table of the documented occurrences of corrosion of steel
elements associated with the balconies. Some of these were in the Diagnostech
report, but not included in the Registrar’s rectification order.
Unit No. Ref
Diagnost
Description Remediation
31 18 Corroded balcony support
steelwork. Inadequate protective
coating
Remove rust.
Fully coat with
Jotaprime
before two
finishing coats
18 25 Corroded balcony support
steelwork. Inadequate protective
coating system.
Remove rust.
Fully coat with
Jotaprime
before two
finishing coats
134 Corroded lintel beam, balcony.
Inadequate protective coating
system.
Remove rust.
Fully coat with
Jotaprime
before two
finishing coats
19 140 Corroded lintel beam. Inadequate
protective coating system
Remove rust.
Fully coat with
Jotaprime
56
before two
finishing coats
21 156 Corroded lintel beam. Inadequate
protective coating system
Remove rust.
Fully coat with
Jotaprime
before two
finishing coats
24 176 Corroded lintel beam. Inadequate
protective coating system
Remove rust.
Fully coat with
Jotaprime
before two
finishing coats
25 185 Corroded lintel beam. Inadequate
protective coating system
Remove rust.
Fully coat with
Jotaprime
before two
finishing coats
32 21 Not in RO, in Rpt Jeffry.
Corroded balcony support
steelwork and balustrade.
Inadequate protective coating.
Remove rust.
Fully coat with
Jotaprime
before two
finishing coats
Repair cracked
tiling.
26 D191 Not in RO, in Rpt Jeffry.
Corroded balcony post.
Inadequate protective coating
system.
Remove rust.
Fully coat with
Jotaprime
before two
finishing coats
D200-203 Corroded support steelwork in
Mansard roof space on balcony
due to water entry
Remove rust.
Fully coat with
Jotaprime
before two
finishing coats
30 D230/1,233, Not in RO. Corroded balustrade,
balcony post. Inadequate
protective coating.
Remove rust.
Fully coat with
Jotaprime
before two
finishing coats
242 Corroded support steelwork in
Mansard roof space on balcony
due to water entry.
Remove rust.
Fully coat with
Jotaprime
before two
finishing coats
57
154. Attention to all the above work should be included in a rectification order. The
steel is to be fully primed as specified by the engineer on T-Docs 783
‘Structural Steelwork Finish’.
6) Failure of waterproofing in the bathroom areas
155. Although this issue was the subject of some evidence, the respondent decided
not to pursue it. The parties joined indicated that the owners had mostly
attended to rectification of issues themselves, and that only one bathroom may
the subject of an order.
156. However, apparently after some discussion the bathroom issue was not pursued
by any of the parties. The Tribunal does not consider that the state of the
evidence together with the approach of the parties to the issue justifies further
examination of it.
7) Defective capping of parapet
157. This issue was described in the section 34 notice as follows:
The defective capping of the parapet is a breach of the following BCA
requirement.
BCA-Part F1: Performance Requirements FP1.4:
A roof and external wall (including openings around windows and doors)
must prevent the penetration of water that would cause:
(a) Unhealthy or dangerous conditions, or loss of amenity for
occupants; and
(b) Undue dampness or deterioration of building elements.
158. This allegation does not specify the location of the capping, but the design of
the building makes it clear that the parapet referred to is the parapet which
forms the outer border of the level 3 balconies.
159. Particulars of this allegation in the rectification order made by the Registrar
were sought (together with others) by the applicant from the respondent on
29 May 2014. Question 21a asked for details of the breach alleged of
performance requirement FP1.4. The answer was to the effect that the defective
nature of the application of the capping would permit water penetration
contributing to water entry from the balcony areas of level 3 to the units at that
level and the level below.
58
160. A further question relating to section 37 of the BA was answered indicating that
the parapets had not been constructed in a proper and skillful way.
161. The Diagnostech report, Exhibit AP, included a number of photographs cited as
instances of defective attachment of the parapet capping. Instances of defective
capping were confined to the balconies of Units 26, 27 and 28. The photographs
showed locations where joins in the capping were no longer providing a
waterproof union.
162. The section 34 notice refers to the capping generically, however the area of the
building to which this issue could apply is relatively confined, (level 3
balconies), and the nature of the problem can be identified by inspection of the
balconies and examination of the Diagnostech report which accompanied the
notice as attachment ‘A’. The Tribunal considers that notice of this defect and
the nature of it has been sufficient in the circumstances.
163. The applicant submits that the capping allegation is ‘tied’ to the BCA
performance requirements, and the respondent is purporting to expand the
allegation by including an allegation of contravention of section 37(c) of the
BA. The applicant submits this is impermissible. The Tribunal does not agree.
Adequate notice has been given of the physical defect alleged it is not necessary
to have strictly pleaded the statutory basis for the breach in the section 34
notice.
164. The applicant relied on the evidence of Mr Honkanen a building expert called
by the applicant. His evidence was to the effect that there may have been better
ways to attach the capping, however, the way in which it had been attached was
acceptable.
165. Mr Stephenson gave evidence and a number of documents were tendered during
the course of that evidence which became Exhibits AP1 to 6 and AQ. He said
that it was not good practice to attach the capping through the top surface since
it provided a point of entry for water and attachment by that means would not
allow for the expansion and contraction of the metal which could be expected in
that location. He said that lack of provision for expansion and contraction had
59
led to opening of joins in the capping sections which would be contributing to
the known water penetration issues.
166. The Tribunal has noted the separation of the joins in the metal both in the
photographs which form part of the Diagnostech report and observations during
inspections of the building. Insofar as there is a conflict in the evidence of
Messrs Honkanen and Stephenson, the Tribunal prefers and accepts that of
Mr Stephenson since his views are supported by the observations of the
Tribunal referred to.
167. Defects in the capping application have been identified on three of five
balconies on level 3. In the circumstances it is justifiable to assume that
although the fixing of the capping was by the same method in the unaffected
units, local conditions have resulted in problems associated with the fixing
method not having manifested. Thus the capping in the affected units should be
rectified in the manner suggested by Mr Stephenson, leaving the unaffected
units as is.
Gaps and Defects in the roof
168. This issue is identified in the section 34 notice as follows:
The gaps and defects in the roof are a breach of the following BCA
requirement:
BCA-Part F1: Performance Requirements FP1.4:
A roof and external wall etc…
169. In the rectification order made by the Registrar, items 98, 99, 100, 101 and 102
were referred to. During the course of the hearing, the parties joined tendered a
presentation of photographs which became Exhibit AK. This included
photographs of defects in the mansard roofs of Units 26 and 30. There was
evidence that patching material shown in the photographs and some silicone
sealant which could not be seen had been applied by residents or the owners’
corporation in order to prevent the entry of water.
170. The applicant opposed the making of an order in relation to the roof on a
number of bases.
171. One was that it had not been demonstrated that any defect in the roof had
contributed to the water leaking into the units on the second and third levels. It
60
was noted in the submission that the defects were referred to in the Diagnostech
report as being a ‘potential’ cause of water ingress.
172. The Tribunal considers that if original construction work is shown to be
defective because of breach of section 37(c) of the BA, then the requirements of
section 34 and section 35 of COLA are met. It is not necessary that the work
which contravenes section 37 of the BA having not been done in a proper and
workmanlike manner should necessarily have resulted in damage. Absence of
damage would be a consideration where a discretionary decision was being
made by the Registrar. It is a reasonable inference from the evidence that the
leaking alleged has contributed to the water entry problems, particularly those
associated with the Mansard roofs.
173. Another was that a beach of the BCA had not been identified by Mr Stephenson.
Each instance cited by Mr Stephenson involves some degree of criticism by him
of the workmanship related to the defect indicating a breach of section 37(c) of
the BA. Again this is sufficient for the purposes of section 34 and section 35.
174. The defects involved in this issue are relatively minor and can be relatively
easily attended to. They should include the area identified by the parties joined
in Exhibit AK. All matters referred to above should be the subject of a
rectification order.
Conclusion and directions
175. The rectification order made by the Registrar will be set aside and another
substituted. The matter will be listed for settling a rectification order. The
respondent should circulate a draft order to the parties not later than two weeks
prior to the listed hearing date. The other parties should circulate suggested
amendments not later than five days prior to the hearing date.
……signed……………..
President W. G Stefaniak AM RFD
for and on behalf of the Tribunal
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HEARING DETAILS
FILE NUMBER: AT 99/2013
PARTIES, APPLICANT: Michael Koundouris
PARTIES, RESPONDENT: Construction Occupations Registrar
PARTIES, 1st PARTY JOINED Mr R Farrell
PARTIES, 2nd
PARTY JOINED Mr E Purrer
PARTIES, 3rd
PARTY JOINED The Owners – Units Plan 2340
COUNSEL APPEARING, APPLICANT Mr Erskine SC, Ms Katavic
COUNSEL APPEARING, RESPONDENT Mr Clynes, Mr Buckland
SOLICITORS FOR APPLICANT Trinity Law
SOLICITORS FOR RESPONDENT ACT Government Solicitor
RESPRESENTING PARTIES JOINED Mr R Farrell, Mr E Purrer
TRIBUNAL MEMBERS: Mr W.G Stefaniak AM – Appeal
President, Mr G. Lunney SC –
Senior Member, Mr G. Trickett –
Senior Member
DATES OF HEARING: 8-11 December 2014, 16-17
December 2014, 3-6 February 2015,
10-12 March 2015, 5-8 May 2015,
28-30 July 2015
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SCHEDULE 1
Building Act 1972
37 Requirements for carrying out building work
Building work shall not be carried out otherwise than in accordance with
the following requirements:
(a) the materials used in the building work shall conform to the standards
for those materials set out in the building code;
(b) the methods of use of those materials in the building work shall
conform to the acceptable methods of use set out in the building
code;
(c) the building work shall be carried out in a proper and skilful way;
(d) the building work shall be carried out in accordance with the
approved plans;
(e) if an owner-builder’s licence has not been granted in relation to the
building work—the building work shall be carried out by a person
who is the holder of a builder’s licence of a class that authorises the
carrying out of the building work;
(f) if an owner-builder’s licence has been granted in relation to the
building work—the building work will be carried out by the person
to whom the licence has been granted;
(g) the licensee in charge of the building work shall take—
(i) all the safety precautions specified in or with the application for
the building approval; and
(ii) any other safety precautions that a certifier or a building
inspector may from time to time specify.
40A Compliance with building code
A person shall not, without reasonable excuse, carry out building work
except in accordance with the building code.
Maximum penalty: 50 penalty units.
Construction Occupations (Licensing) Act 2004
34 Intention to make rectification order
(1) This section applies if the registrar believes on reasonable grounds that—
(a) a licensee or former licensee (the entity) has provided a construction
service otherwise than in accordance with this Act or an operational
Act; and
(b) it may be appropriate to make a rectification order.
Examples of licensee or former licensee
1 a licensed builder does building work
2 a drainer who was licensed, does sanitary drainage work while unlicensed
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3 a licensed gasfitter does gasfitting work and then becomes unlicensed
Note 1 If deciding under this section whether it may be appropriate to make a
rectification order, the registrar must consider the considerations mentioned in s
36.
Note 2 An example is part of the Act, is not exhaustive and may extend, but does not
limit, the meaning of the provision in which it appears (see Legislation Act,
s 126 and s 132).
(2) The registrar may give the entity, and the land owner in relation to whose
land the construction service was provided, a written notice that—
(a) gives details of the rectification order that may be made; and
(b) explains why the registrar intends to make the order; and
(c) invites submissions about the making of the order within the time
stated in the notice that is not less than 5 working days after the day
the entity or land owner receives the notice; and
(d) states that—
(i) the registrar will not make a rectification order if the registrar is
not satisfied that it is appropriate to make a rectification order in
relation to the entity; and
(ii) if the registrar does not make a rectification order the Territory
may authorise someone else to do the things stated in this
notice, and the entity will have to pay for the things to be done.
35 When rectification order may be made
(1) This section applies if—
(a) the registrar has given an entity notice under section 34; and
(b) the entity provided the construction service, or part of the
construction service, to which the notice relates; and
(c) after considering any submissions made within the time mentioned in
the notice, the registrar is satisfied—
(i) the entity is contravening, or has contravened, this Act or an
operational Act; and
(ii) it is appropriate to make a rectification order in relation to the
entity.
Note 1 If deciding under this section whether it is appropriate to make a rectification
order, the registrar must consider the considerations mentioned in s 36.
Note 2 A reference to an Act includes a reference to the statutory instruments made or
in force under the Act, including any regulation (see Legislation Act, s 104).
(2) The registrar may make an order under section 38 (Rectification orders) in
relation to the entity.
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(3) However, the registrar may not make an order under section 38 in relation
to the entity if a submission is made that satisfies the registrar that the act
that caused the contravention happened, or ended, more than 10 years
before the day the registrar proposes to make the order.
Example of contravention
A builder built a house without a building approval. The registrar is satisfied that the
building of the house started 12 years ago and finished 9 years ago. The registrar may
make a rectification order in relation to the construction service of building the house.
Note An example is part of the Act, is not exhaustive and may extend, but does not
limit, the meaning of the provision in which it appears (see Legislation Act, s
126 and s 132).
36 Considerations for deciding under s 34 and s 35
(1) In deciding whether it is, or may be, appropriate to make a rectification
order in relation to an entity that is contravening, or has or may have
contravened, this Act, the registrar must consider the following:
(a) any injury, loss or damage caused, or that could have been caused, by
the contravention;
(b) if a rectification order is proposed—how the proposed order may
affect people affected by the contravention.
Examples of effect of contravention, including injury, loss and damage
1 reduction in safety, reliability, durability, soundness, functionality, accessibility,
serviceability, service life, usability, usefulness, amenity, aesthetic quality, value or
efficiency of thing affected by contravention
2 adverse affect on health of user of thing affected by contravention
Note An example is part of the Act, is not exhaustive and may extend, but does not limit,
the meaning of the provision in which it appears (see Legislation Act, s 126 and s
132).
(2) The registrar may consider anything else that is relevant.
(3) However, the registrar need not consider whether the registrar, planning
and land authority, a certifier or other entity has—
(a) given a certificate, or approval under—
(i) this Act or an operational Act in relation to the construction
service; or
(ii) the Planning and Development Act 2007 in relation to the place
where, or the territory lease under which, the construction
service was provided; or
(b) otherwise endorsed the construction service under this Act or an
operational Act.
Building Code of Australia FP1.3 A drainage system for the disposal of surface water must- (a) convey surface water
to an appropriate outfall; and (b) avoid the entry of water into a building; and (c)
avoid water damaging the building.
FP1.4 A roof and external wall (including openings around windows and doors) must
prevent the penetration of water that could cause- (a) unhealthy or dangerous
conditions, or loss of amenity for occupants; and (b) undue dampness or
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deterioration of building elements. Limitation: (a) (b) , or (c) an or . FP1.4 does
not apply toa Class 7 or 8 building where in the particular case there is no
necessity for compliance; or a garage, tool shed, sanitary compartment the like,
forming part of a building used for other purposes; or open spectator stand open-
deck carpark
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