ACT Construction Occupations Registrar v Tokich [2006] ACTSC 89

ACT Construction Occupations Registrar v Tokich [2006] ACTSC 89 - ACTSC 2006 case summary — Zoe

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In accordance with section 38 of the Construction Occupations (Licensing) Act 2004 (the Licensing Act), I, hereby order you to take the stated action as described in schedule 1 to this order to rectify work done by you as licensed builder. This rectification work is to be finished by 31 March 2005.

...

Schedule 1 to Rectification Order issued on 16 November 2004 ...

Rectify the stormwater drainage system for surface water in the vicinity of unit 28 of block 2 section 94 Charnwood (unit 28) to comply with Building Code of Australia (the Building Code) Performance Requirement P2.2.1. to prevent the likelihood of any further damage or nuisance to unit 28. To achieve this, you are required to perform the following actions to rectify the work:

1. remove the sump and related spoon drain located in the yard of unit 28 and make good the area including the stormwater main pipe and landscaping; and

2. put in place a permanent solution designed and certified by a qualified hydraulics engineer according to requirements of the Building Code and AS/NZS3500.3.2 to deal with the overland flow of surface water from adjacent land in the vicinity of unit 28 including appropriate provision for overland flow paths to deal with stormwater surcharges. This permanent solution is to replace the temporary earth bank solution and small drainage pipe currently in place; and

3. obtain, with the consent of the owner, any necessary building approvals and commencement notices required under the Building Act 2004 to carry out the work stated at points 1 and 2; and

4. have the qualified hydraulics engineer who designed the solution inspect and provide certification of the completed works; and

5. carry out the works in a way that causes the least amount of impact on the tenants of unit 28; and

6. restore to original condition any structures, plant or materials damaged or altered during rectification works; and

7. all works are to be done in accordance with requirements of the Building Act 2004; and

8. you are to bear all costs associated with bringing into effect the above stated works.

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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.

...

(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.

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.

...

(2) The registrar may make an order under section 38 (Rectification orders) in relation to the entity.

...

and

38 Rectification orders

(1) The registrar may make an order (a rectification order) in relation to an entity requiring the entity -

(a) to take stated action to rectify work done as part of a construction service; or

(b) to demolish a building or part of a building where a construction service has been provided and provide the construction service under this Act or an operational Act; or

(c) to start or finish stated work in relation to which a construction service has been, is being or was proposed to be provided.

(2) If the entity is not licensed to do something required to be done under the order, the entity must arrange, and pay for, the thing to be done.

(3) The rectification order must state a period within which what is required to be done must be done.

...

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The subdivision

8. Prior to the subdivision and sale of the land, a number of studies had been commissioned by the ACT Government. These included a Works and Commercial Services Site Investigation Report dated July 1996 by Bill Guy and Partners, which among other things stated:

4.3 STORMWATER

There is a 525mm dia stormwater tie at the east boundary of the site. All piped stormwater from the school buildings and ground drains to this point. The stormwater tie coincides with the overland flow discharge point from the site.

Redevelopment of the site will increase the extent of impervious areas hence the stormwater runoff will increase. Current DUS stormwater unit policy is for onsite stormwater detention systems (OSD) to be provided however this would need to be discussed with the stormwater unit once the extent and type of development as determined.

5.0 OVERLAND FLOW

There is an open unlined grass stormwater channel through the site to the south of the school buildings. The channel collects stormwater from the block and from our site inspection it appears that no contribution is made from outside the block, however, this would need to be verified by a more detailed review of stormwater in the area. ...... The channel discharges into open space to the east of the tennis courts.

...

Development constraints are difficult to identify due to the preliminary nature of possible redevelopment options, however, the following constraints exist and would require relocation/upgrading of services/easements created

* 1050mm dia stormwater main along Lhotsky Street frontage

* sewer from school

* stormwater from school

* gas and telephone to school

* open stormwater channel to south of school

* significant stands or individual trees worthy of retention.

9. A Boundary Assessment Report to consider the boundary between the proposed new blocks was then commissioned by the ACT Government from Purdon Associates Pty Ltd. It is dated March 1997. It reads in part:

4. REVIEW OF EXISTING INVESTIGATIONS

4.1 Review of Works and Commercial Services investigation

* ......the stormwater easement could be retained and incorporated into a landscaped buffer zone and pedestrian link across Lhotsky Street

* stormwater pipes from the school building cross the south eastern portion of the site. These services may need to be relocated and/or easements provided

* an overland flow stormwater channel crosses the south eastern portion of the site. ...... Although piping of some of this flow is possible, an overland flow path would still be required for extreme storm events. As a result, the existing or a modified version of this overland flow path will need to be incorporated in any development proposal. ...... Onsite stormwater detention systems may be required subject to negotiations with the stormwater unit of DUS.

5.2.2 Constraints on Residential Development

* Some minor realignment of this flow path may be necessary and will require future design and investigation. It is anticipated that this flow path will be located in an easement across the residential site and be associated with a pedestrian link;

* Relocation of stormwater pipes associated with the former high school building into its proposed curtilage.

10. In April 1997 Bill Guy and Partners was again commissioned to carry out a further Site Investigation Report into the land. It reads in part:

6.1 DUS - Stormwater

The current policy in relation to stormwater for redevelopment of the existing site is detailed in the publication "Interim Stormwater Management Guidelines for Redevelopment" Stormwater Section, Roads and Traffic Branch, ACT City Services, Edition 1 September 1994.

Mr S Brenan of DUS - Stormwater has confirmed the above would be applicable to any redevelopment on the site whether it be the residential area or expansion of the existing buildings.

It should also be noted that the site contains an overland flow path for the 100 year ARI. This flow path would need to be maintained and incorporated into any redevelopment.

With the creation of two or more blocks of land, rationalisation of services will be required to provide one stormwater tie to each block. Easements will be required over any services passing through new blocks.

11. The tender document for the sale of the land issued in May 1997 by Total Care Industries Limited, an agency of the ACT Government, identified the land for sale as two subdivided blocks. The document included the following clause:

7. EXISTING BUILDINGS, IMPROVEMENTS AND SITE CONDITIONS

Block 1 Section 94 Charnwood is fully serviced by water, sewer, stormwater, electricity, gas and telecommunications. The Associated Works required to separately service `Block A' and `Block B' are to be carried out by the successful Lessees in accordance with Prescribed Conditions for Associated Works to be determined when the boundary is finalized.

(`Block A' became Block 3 and `Block B' became Block 2.)

12. In summary, several reports prior to subdivision showed the need for provide separate stormwater services for the separate blocks prior to subdivision. This work was, according to the tender document, to be described as Prescribed Conditions for Associated Works and to be undertaken by the successful purchaser upon sale of the land. Yet it appears that no Prescribed Conditions for Associated Works were ever imposed, nor were any lease conditions dealing with stormwater and other identified services attached to the leases when they were issued to Pinto. Both overland and piped stormwater continues to flow from Block 3 to Block 2 as they did prior to the subdivision.

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13. Mr Tony Connell is the Manager, Civil Engineering, Canberra, with Northrop Consulting Engineers. Mr Bernard Cusack is a senior civil engineer and principal of Sellick Consultants. Both Mr Connell and Mr Cusack have experience in the engineering of urban infrastructure including provision of stormwater drainage in subdivisions in the ACT. Both provided expert written reports and gave oral evidence for the applicant. Both agreed that the stormwater services for Block 3 which run through Block 2 and which pre-existed the subdivision should have been rationalised at the time of subdivision so as to confirm ownership and service responsibilities as between both lessees and the ACT Government through Department of Urban Services ("DUS"). They described that as usual, indeed required, practice.

14. The expert opinions of both Mr Connell and Mr Cusack were that the flooding of the garden of Unit 28 in February 2003 had been caused by water flow across the 800m2 hard paved carpark on Block 3, thence across the boundary into Block 2 towards the sump in the garden of Unit 28. They consider the Building Code of Australia Standard AS/NZS 3500.3.2: 1998, cited in the Order, may cover overland flow from a small area such as occurs in standard residential blocks but generally to be applicable for work inside a leased boundary only. They do not accept that it is meant to deal with stormwater draining from a catchment of about 3 hectares. In their opinions the responsibility falls to the lessees of Block 3 to manage the uncontrolled surface discharge from the large paved carpark. The Department of Urban Services Design Standard for Urban Infrastructure (November 2002) was cited as the relevant standard in support of this opinion. Both Mr Connell and Mr Cusack considered that Mr Tokich was not required to, and should not have, constructed the spoon drain. However, that had been overcome by the construction of the earth bund prior to the issue of the rectification order so that flooding of Unit 28 had subsequently been prevented. They consider that a more permanent solution to stormwater drainage of Block 3 is required. However their opinions, informed by their knowledge of the relevant standards and their experience as civil engineers working in this field, are that the applicant should not bear the responsibility for rectifying up-stream stormwater problems that were foreseen, and should have been resolved by those involved, at the time of subdivision.

15. Mr John Morgan provided an expert report and gave oral evidence for the respondent. He is also a civil engineer as well as being a building surveyor (certifier) and holding other registrations. He first became involved in the matter when approached by the residents of Unit 28. In his written report he disagreed with Mr Cusack and Mr Connell that the water responsible for flooding Unit 28 was discharge flow across the sealed carpark in Block 3, which he believed to be adequately drained. There is however ample evidence from photographs and from other witnesses of water collecting in the carpark. Mr Morgan attributed the flooding to a failure by the respondent to comply with the provisions of Building Code of Australia concerning surface water. In his opinion rectification work such as set out in the Order need to be done.

16. It emerged in giving oral evidence that Mr Morgan's written report had been prepared on the basis of incomplete knowledge of the history of the land. He agreed that the history of the subdivision of the land was relevant to considering responsibilities for stormwater management. His report was also predicated on the understanding that no civil works had been undertaken on Block 3 following subdivision, which understanding he later conceded was not correct. There is photographic evidence of civil works as well as oral evidence from Pastor Sean Stanton of the Canberra Christian Life Centre which operates from Block 3 to this effect. Pastor Stanton agreed that various works had been undertaken, including modification including grading of carparks, removal of traffic islands, and the construction of a new driveway entrance to the overflow carpark. While some of these works might, taken alone, have a limited impact, in the opinion of witnesses including Mr Connell at least some of those works could change the topography of Block 3 to the extent that the stormwater drainage and overland flows towards Block 2 have been affected.

17. Where they disagree, I prefer the evidence of Mr Connell and Mr Cusack to that of Mr Morgan because of their greater experience in civil engineering for subdivisions and their more complete consideration of relevant issues. I also prefer their evidence to that of Mr Johnson. Mr Johnson gave evidence that, in deciding that the applicant had failed to comply with the BCA standard in relation to overland flow of surface water, he had considered the incident of flooding in the context of building work on Block 2 only. However he accepted that works on Block 3 could have been relevant.

At a glance

Court

Decision date

Before

Source

Judgment (69 paragraphs)

Parties

Legislation Cited (14)