QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Glass & Anor v Queensland Building and Construction Commission & Anor [2021] QCAT 382	
PARTIES:	Tim Glass	
	(first applicant)
CATHERINE LEONIE POPE
(second applicant)	
	v	
	Queensland Building and Construction Commission	
	(first respondent)
SPENCER CONSTRUCTIONS (QLD) PTY LTD
(second respondent)	
APPLICATION NO/S:	GAR359-19	
MATTER TYPE:	General administrative review matters	
DELIVERED ON:	28 October 2021	
HEARING DATE:	17 May 2021	
HEARD AT:	Brisbane	
DECISION OF:	A/Senior Member Howe	
ORDERS:	The decision of the Queensland Building and Construction Commission not to issue a direction to rectify to Spencer Constructions (Qld) Pty Ltd is confirmed.	
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where home owners sought review of a decision of the Commission not to issue a direction to rectify defective building work constituting a domestic driveway – where the Commission determined such direction would be unfair to the builder – where the driveway as constructed failed to comply with the applicable Australian Standard – where the design plan for the driveway also and in any case failed the Australian Standard – where both owners and builder bore responsibility for the defective building work – where it was unfair in those circumstances to issue a direction to rectify to the builder  
Queensland Building and Construction Commission Act 1991 (Qld) s 72(5)
ABW Design & Construction Pty Ltd v Queensland Building Services Authority, Naidoo [2013] QCAT 352
R v His Honour Judge Miller and The Builders’ Registration Board of Queensland ex parte Graham Evans & Co (Qld) Pty Ltd [1987] 2 Qd R 446
Wright and Anor v Duke Building Pty Ltd and Anor [2017] QCATA 35	
APPEARANCES & REPRESENTATION:		
Applicants:	Self-represented by T Glass	
First Respondent:	Self-represented by S Hedger, In-house legal	
Second Respondent:	S Hogg of Counsel, instructed by Celtic Legal	
		
REASONS FOR DECISION
[1]	Mr Glass and Ms Pope engaged Spencer Constructions (Qld) Pty Ltd (‘the builder’) to build them a home. They entered into a Master Builders Residential Building Contract - Level 2 on 10 July 2018. The price was $469,100.37.
[2]	The plans were prepared by Mr Glass. Mr Glass holds a bachelor’s degree in Architectural Studies and a bachelor’s degree with 1st class honours in Architecture but he is not licensed with the Queensland Building and Construction Commission  (‘QBCC’) or the Royal Australian Institute of Architects. He works for a building design firm which is QBCC licensed.
[3]	The house was built and with it a reinforced concrete driveway with an exposed aggregate finish. Mr Glass and Ms Pope are unhappy with the driveway. The driveway is constructed on a fairly steep slope up from the garage to the roadway. Cars have difficulty entering or exiting the garage without scraping undercarriages.
[4]	Mr Glass complained to QBCC about the driveway as defective building work. The builder maintained any problems with the driveway are design problems and the owners were responsible for that.
[5]	QBCC investigated but have refused to issue a direction to rectify the driveway on the grounds that such would be unfair on the builder.
[6]	The owners seek review of that decision.
The issues in dispute
[7]	The issues in dispute are twofold:
(a)	Was the work done constructing the driveway defective building work?
(b)	If so, is it fair that the builder be directed to rectify it?
Defective building work
[8]	Was the work done constructing the driveway defective building work?
[9]	At hearing Mr Spencer for the builder conceded that the owners could not drive their motor vehicles into or out from the garage without scraping the bottom of the vehicles. 
[10]	Under the Queensland Building and Construction Commission (QBCC) Rectification of Building Work Policy, defective building work means building work that is faulty or unsatisfactory, and includes work which does not comply with the Building Act 1975, Building Code of Australia or an applicable Australian Standard.
[11]	Clause 2.4 of the QBCC Standards and Tolerances Guide makes Australian Standard AS2890.1 an applicable standard for driveways and provides:
The ground clearance for driveways and the like shall be in accordance with AS/NZS2890.1 Parking Facilities – Off Street Parking Appendix C. The template car is to be B85 for domestic properties.
[12]	Appendix C to that Standard makes the template car a “B85” type car, such as a Ford Falcon sedan. There is no dispute that the owners’ cars are within the B85 category.
[13]	AS2890.1 also provides:
2.6 Design of Domestic Driveways
…
2.6.2 Gradients
The maximum gradient of domestic driveways shall be 1 in 4 (25%)…. 
Grade changes across a footpath and within the property shall be designed and checked in accordance with Appendix C to ensure that vehicles will not scrape their undersides when negotiating them. Transitions may be required (see Clause 2.5.3(d)

2.5.3 Circulation roadway and ramp grades
…
(d) changes of grade – To prevent vehicles scraping or bottoming, changes in grade in excess of –
(i) 12.5% algebraically (1 in 8) for summit grade changes; or
(ii) 15% algebraically (1 in 6.7) for sag grade changes;
require introduction of a grade transition between the main grade lines as illustrated in figure 2.10.
[14]	The original design of the driveway was a straight ramp without transitions. The gradient of the driveway built exceeded the maximum permitted 1 in 4 under the Standard. That was Mr Blackman’s evidence. Mr Blackman is a Senior Technical Internal Review Officer with QBCC.  He attended at the property and took measurements and made detailed calculations about the slope of the driveway. 
[15]	I accept his evidence about that. I also accept the owners’ evidence that they could not use the driveway as built without causing damage (scraping) to the undercarriage of their vehicles.
[16]	I find the driveway construction was defective building work. It failed the test of practical use.
Fair that the builder rectify?
[17]	As explained in Wright and Anor v Duke Building Pty Ltd and Anor [2017] QCATA 35:
[88] Section 72(1) of the QBCC Act concerns the identification of defective building work, not fault attribution.… The initial question to be determined by the Commission is simply whether or not faulty or unsatisfactory building work has been identified. If the answer is yes, that leads to the question, is it reasonable in all the circumstances, to direct someone to rectify it? That requires the exercise of a discretion by the Commission whether it is appropriate in the circumstances to that person, here the builder, to do that work.
[18]	The discretion referred to there now falls for exercise here. 
AS2890.1
[19]	The usefulness of this standard must be put in context.
[20]	Mr Glass placed great emphasis at hearing on the builder’s failure to build the driveway in accordance to his original plan. His voiced complaint was not that the driveway as built does not comply with AS2890.1.
[21]	That is in large part because Mr Glass does not concede that his original design (plan) would not have ‘worked’ had the builder followed it exactly. He says whether or not his original design would have worked will never be known because what was built was something different.
[22]	Mr Blackman disagrees. His evidence is that even if the driveway had been constructed exactly in accordance with the original plan, at the “sag” (the lowest point), cars would have bottomed out.
[23]	Mr Blackman bases his opinion on the slope, level and gradient calculations set by AS2890.1.
[24]	Mr Glass in fact challenges use of that standard here. He says it is no part of the Queensland Development Code (‘QDC’). 
[25]	Mr Blackman responds that it is a model standard, not a mandatory standard, under the QDC, which local governments may choose to adopt in their planning schemes.  Here, the relevant council was Brisbane City Council and it has not adopted that standard, admittedly. However, other Councils have adopted it, and QBCC is a State regulator operating across all Queensland local government areas, and QBCC has adopted the standard as an applicable standard for assessing driveways.
[26]	Mr Glass offers no alternate standard or guide or set of calculations usefully available to assess the adequacy of the driveway. One must wonder then on what basis he adopted the 1 in 4 (25%) measure found in AS2890.1 in his original design?
[27]	Whilst Mr Glass says, and I am prepared to accept, that design of driveways to AS2890.1 is not a specific requirement of Brisbane City Council, there is nothing before me suggesting Brisbane City Council driveway requirements conflict with AS2890.1.
[28]	QBCC is general regulator of the construction industry across Queensland. By its Standards and Tolerances Guide, AS2890.1 is adopted as an applicable Australian Standard for the purpose of identifying defective building work as that term is defined in the QBCC’s Rectification of Building Work Policy.
[29]	I accept AS2890.1 is an appropriate standard for QBCC to use to assess satisfactory domestic driveway construction. 
Original plan as guide only
[30]	Mr Glass raised in his material an alternate proposition, rather at odds with his principal contention abovementioned, which I address for the sake of completeness. He claims he never insisted that the builder follow his original design if it was not suitable. He said this in a statement of evidence:
27. … Also, at no point was there direction from myself against any warning by the builder to construct the driveway differently. There was no insistence from myself that the driveway be built to the levels stated on the plan to the disregard of successful performance. Rather my insistence was to be able to enter and exit the garage of the building in a vehicle.
[31]	Mr Glass argues plans for houses vary from designer to designer, some giving more detail than others. An example of that is that full gradients are not always detailed on plans for wet areas:
Rather the plans and a set of notes are supplied for the contractor’s guidance coupled with the contractors (sic) experience and knowledge lead to compliance with the relevant Australian Standard for wet areas.
[32]	He suggests that was the case with his original driveway plan.
[33]	It is to be observed that there was no reference to AS2890.1 on the original plan. Nor was there any suggestion any other standard applied or was to be considered. 
[34]	The driveway plan was detailed. It is part of a drawing of the entire lower level of the dwelling entitled “Dimensioned Plan Lower Level”. The slope gradient was prescribed. Relative levels were given. The dimensions of the driveway noted. The footpath crossover in particular was very detailed, in similar fashion to all other parts of the plan setting out the house dimensions.
[35]	Under the contract the owners accepted responsibility to supply the necessary plans for the job. By clause 11.11(a) and (b) of the general conditions of contract they warranted the plans would be accurate and suitable for purpose and that it was reasonable for the contractor to rely on them.
[36]	I find the driveway plan was not provided as a general guide for the builder intended to be varied if and as necessary. I find it was intended to be followed with precision as with all other aspects of the dwelling depicted in Dimension Plan Lower Level.
The measurements
[37]	I turn to consider in more detail the driveway as built and as originally designed assessed against AS2890.1. 
[38]	The land falls away from the footpath and road at the front of the property. The original plan shows the driveway falling away from the property boundary for 6 metres to the garage entry. It shows a drain grate in front of and slightly lower than the garage entry. The grate is the lowest point of the driveway and given a RL (reference level or reduced level) of 4.870. The garage entry is given a RL of 4.890. There is no RL noted at the front boundary but approximately 1 metre down the drive from the front boundary there appears a notation “RL 5.870 (verify on site)”.
[39]	Between the grate and RL 5.870 the words “Max 1 in 4” is written.
[40]	I describe RL 5.870 as approximately 1 metre from the boundary because that distance measurement is missing from the plan. 
[41]	Mr Glass says the builder paid little heed to the prescribed levels. The builder also failed to “verify on site” as directed by the plan during construction. When the slope was cut, he asked the builder what the fall was and he was told 1 in 6. Mr Glass complains he was never given levels by the builder and therefore he never had an opportunity to confirm his gradients.
[42]	Mr Blackman took measurements at the property on 21 August 2019 and produced a report of his findings the next day. He found the construction of the driveway was not strictly in conformity with the plan. The step down from the garage floor to the commencement of the driveway was at the south and north ends lower than designed by 10mm and 6mm respectively; the grate was lower than the floor of the garage at south and north ends by again, respectively, 18mm and 12mm; the height of the driveway 5 metres from the front of the garage approximately 69mm and 112mm higher at south and north sides of the driveway; and the slope exceeded the 1 in 4 stated requirement, being 25.82% on the southern side and 26.81% on the northern.
[43]	This meant, applying AS2890.1, the builder’s construction was defective building work. 
[44]	Mr Blackman prepared a report about his findings. He said in the report:
10. The driveway layout as shown on the plan has been assessed for compliance with AS/NZS2890.1. Due to the maximum specified gradient of 1 in 4 (25%), height of garage floor level and location of the grated drain, the Author has been unable to establish that the driveway, if constructed as per the plan, would comply with AS/NZS2890.1.
[45]	Mr Blackman clarified at hearing that what he meant by that statement was that, using the standard car template in AS2890.1, had the driveway been built to the original design, a car would still bottom out at the sag near the garage entrance.
[46]	That seems correct given AS2890.1 states a change in grade greater than 15% algebraically (1 in 6.7) for sag grade changes requires a grade transition between the main grade lines. There was no such grade transition contained in the original plan.
[47]	Whilst the builder’s changes to the original plan exacerbated the problem, the original design was always defective when assessed against the requirements of AS2890.1.
Revised plans
[48]	Mr Blackman informed Mr Glass that his original driveway design failed to comply with AS2890.1. He invited Mr Glass to comment. Mr Glass did not contest the finding but instead produced a revised driveway design (‘amended design’) with added transition gradients.
[49]	Mr Blackman informed Mr Glass that the amended design also failed the AS2890.1 requirements.
[50]	Mr Glass produced yet another drawing (‘revised amended design’).
[51]	Mr Blackman decided the revised amended design lowered the driveway at the former reference point RL 5.870 by 375mm on the southern side and 275mm on the northern but it did comply with AS2890.1. However, he formed the view that the reduction in height was significant and materially altered the driveway from the original design and therefore determined it would be unfair to direct the builder to rectify the work already done.
Decision - Unfair to direct rectification
[52]	The driveway as constructed is defective building work.
[53]	The driveway was not constructed in accordance with the original plan; if it had been, it would still constitute defective building work. Both findings are relevant considerations in exercise of the discretion whether to direct the builder to rectify the defective work:
That a builder's work comes within the definition of building work that is faulty or unsatisfactory within the meaning of sub-s. (3) does not of itself impose any liability upon him but merely enlivens the discretion of the Board to order him to remedy the work, for the use of the permissive “may” in the investment of the Board's powers also vests such a discretion in the Board. Where his adherence to the contract must mean defective work, the answer to the builder's dilemma is that the legislature has reposed confidence in the Board to determine in the specific case whether an order should be made; and the Board, in exercising that discretion properly, must in a proper case recognise the builder's innocent position and afford him protection by the exercise of its discretion in his favour. In some circumstances, there is obvious need for protection of the owner even though the builder may be able to point to a term of the contract justifying the defective result, while in others the builder may be perfectly justified in conforming with the specifications and should not be required to remedy the defect. Such a discretion is both reasonable and logical in this field where it is so difficult to set precise criteria, and where a number of different factors will operate in varying degrees.
[54]	I accept that the revised amended design does not fail the AS2890.1 Standard.
[55]	If the builder is required to rectify the driveway the builder would have to demolish and dispose of the present driveway, excavate an additional 375mm of earth on the southern side and 275mm on the northern side approximately mid-point along the driveway, cut new transitional grades and then pour new concrete.
[56]	That is presumably with the builder following Mr Glass’ revised amended design, which design did not exist until nearly 12 months after the applicants first made complaint to QBCC. That design was certainly not available to the builder at the time of the contract.
[57]	Mr Spencer says as part of that work he will have to add a retaining wall to the northern side boundary because a driveway constructed to the revised amended design will be well below natural ground level. Mr Glass says natural ground cover will suffice to prevent erosion and such. That may be right, however there is also the issue of a property power pole adjacent to the northern side of the driveway to be taken into account. I am not persuaded that the excavation associated with implementing the revised amended design will not impact the structural integrity of the property power pole, and the retaining wall thereby becoming an additional necessity.
[58]	There is also the matter of the concrete driveway crossing the footpath. There is a Telstra conduit passing under it along the footpath. Under the revised amended design the height of the footpath is to be lowered. According to Mr Spencer the Telstra conduit will also therefore have to be lowered in the earth because there must be 100mm between the bottom of the concrete and the conduit. Mr Spencer’s evidence was that the driveway at the crossover was constructed as is because of the Telstra conduit underneath. The additional excavation necessary to lower the conduit would have to be done by a Telstra contractor.
[59]	Mr Spencer calculates the cost of this work to him will be $21,744. Mr Glass says the cost will not be that high. I accept the cost will however be significant and entirely borne by the builder, not shared with the owners, despite the latter being responsible for supplying defective plans. That is a relevant consideration.
[60]	I take the aforementioned factors into account in exercise of the discretion whether to direct the builder to rectify the defective work. 
[61]	Whilst the builder did not strictly follow the original design and the changes made did not improve the design, had the driveway been built to the original design it would not have worked in the sense the same problem the owners complain about now would have arisen then in any case. 
[62]	I find the defective construction was attributable to failures by both the builder and Mr Glass as designer. It is unfair to make the builder solely responsible for its rectification.
[63]	As such I determine that the decision of QBCC not to issue a direction to rectify defective building work on the grounds that that would be unfair is correct and it is confirmed.