16 The brochure went on to warn about the serious consequences of failing to heed this warning. Mr Berry provided a copy of a set of guidelines apparently issued by the respondent to some owners of pools located on 'reactive (clay) soils'. These guidelines also warned:

The pool should not be emptied after winter period when natural soil moisture content is at its highest.

Mr Berry also asserted in his letter of 3 April 2012 that it is the standard practice of the installer to provide a handbook for pool and soil management, with a DVD, to each owner, which specifically refers to clay sites and states that 'lowering the pool water during high water table events should not be carried out without referring to the manufacturer'.

17 There are a number of difficulties with this argument:

1. Mr and Mrs Atkinson stated, and the Tribunal accepts, that they did not receive the brochure or the guidelines from the respondent. Mr and Mrs Atkinson admitted that they received a DVD from the respondent dealing with maintenance of the pool. They provided the DVD to the Tribunal and the Tribunal watched it. The DVD does not contain any warning similar to that contained in the brochure or the guidelines.
2. The brochure and the guidelines warn about emptying the pool. They do not warn about the dangers of lowering the water level in the pool slightly. Emptying the pool is quite different from lowering the water level slightly. Mr and Mrs Atkinson did not 'empty' the pool.
3. Mr and Mrs Atkinson provided copies of information sheets published by the New South Wales and Victorian equivalents of SPASA, which suggest that the water level in a pool should be maintained about halfway up the skimmer box. A guide sheet issued by the Western Australian Department of Water suggests that the water level should be reduced during winter to deal with 'storm events', and that a 25 centimetre freeboard is appropriate. While Mr and Mrs Atkinson did not have the benefit of these information sheets at the time of the failure, the information sheets show that Mr and Mrs Atkinson's conduct was not inconsistent with general pool maintenance practices. The level to which the applicant lowered the water was not extraordinary or inappropriate, and ought not to have resulted in failure of the pool.

18 The Tribunal considers, therefore, that this argument must be rejected.

19 Secondly, the respondent argued that the failure was caused by the design of the landscaping in the pool area. It said that the design was such that rain falling on the paved area surrounding the pool ran towards the pool area where it saturated the sand surrounding the pool, raising the water level in the sand surrounding the pool.

20 The Tribunal does not accept that the landscape design was a significant factor in the failure. Mr Berry's report contains a diagram indicating the direction of the fall in the paving surrounding the pool. In some areas, the fall is away from the pool itself. In other areas, the fall is towards the pool. Photographs of the landscaping were provided to the Tribunal. The landscaping was not obviously defective. Further, some water falling on to the paving area would inevitably seep into the ground.

21 Thirdly, the respondent asserted that Mr and Mrs Atkinson were responsible for the failure because:

1. the pool was built too low into the ground; and
2. Mr and Mrs Atkinson lowered the top level of construction of the pool on the day of installation from 50 millimetres below the decking to 450 millimetres below the level of the decking.

22 The Tribunal accepts that the pool was built too low into the ground. Photographs tendered in evidence show that the pool area was roughly level with the surrounding ground. It was accepted by the parties that the groundwater level within the pit excavated for the pool would rise almost to the surface in periods of wet weather, such as that experienced in July 2011. With the top level of the pool effectively at ground level and no way for the groundwater to escape from the clay lined pit, the groundwater could come all the way up the side of the pool, creating a situation in which the risk of failure was greatly increased. Conversely, the house and decking were built on a sand pad raised above the level of the surrounding ground. If the ground in the pool area had been built up sufficiently for the top of the pool to be only 50 millimetres below the level of the decking, then the top of the pool would have been about 400 millimetres ­ 500 millimetres above the level of the surrounding ground, and about 400 millimetres ­ 500 millimetres above the maximum level of the groundwater. So long as the built up material was itself free draining, it would not have been possible for groundwater to come up to the top of the pool. Lowering the level of the water in the pool within normal operating parameters would then not have resulted in the pool being raised from the ground.

23 It is implicit in this argument that the pool, as installed, was faulty or unsatisfactory, because it was liable to be lifted from the ground by use within normal operating parameters and within normal weather conditions.

24 The Tribunal accepts that it was Mr and Mrs Atkinson who requested that the pool level be varied. The Tribunal does not accept, however, that this absolves the respondent from responsibility for the failure of the pool. Variation of the pool level specified in the contract was a matter of agreement between the parties. The respondent could have refused to vary the pool level, but did not. The respondent's installer agreed to vary the pool level and then carried out the work of installing the work at the varied level. There was no suggestion that Mr and Mrs Atkinson were warned about the consequences of installing the pool 450 millimetres below the decking datum. Mr and Mrs Atkinson indicated that they had no objection, in principle, to installation of the pool at the higher level.

25 The question for determination by the Tribunal is whether the building service provided by the respondent, namely, the installation of the pool 450 millimetres below the datum, was 'not carried out in a proper and proficient manner' or was 'faulty or unsatisfactory'. The Tribunal considers that the installation was not carried out in a proper and proficient fashion and was faulty or unsatisfactory because it was too low, given the lack of any drainage arrangement to dissipate the surrounding groundwater pressure, and was liable to be lifted from the ground by use within normal operating parameters and within the normal range of weather conditions.

26 In his letter of 13 March 2012, Mr Scott, the applicant's expert, asserted that the respondent was negligent, because the respondent did not install a hydrostatic valve in the bottom of the pool. A hydrostatic valve is a small one­way valve in the bottom of a pool which allows water to enter the pool when the pressure under the pool becomes greater than that within the pool. Mr Scott considered that a hydrostatic valve would have relieved the pressure under the pool before the pool failed. Mr Berry accepted that installation of a hydrostatic valve would have prevented the failure. However, Mr Berry contended that hydrostatic valves were not commonly used in Western Australia, even in pools installed in clay soil rather than in sand. He said that the water which entered the pool through the hydrostatic valve was often unsavoury and potentially unhealthy. He also said that it was easy for grains of sand to become jammed in the valve, preventing it closing, so that pool water tended to drain into the ground when the valve should have closed.

27 The Tribunal accepts that a hydrostatic valve would have prevented the failure. However, it also accepts that use of a hydrostatic valve would have had undesirable side effects and would not have been an ideal solution to the problem. The real problem was that the pool was installed too low into the ground. If the pool had been installed at an appropriate height, there would have been no need for a hydrostatic valve. The Tribunal concludes that the fundamental problem with the building service provided by the respondent was that the pool was installed too low, not that the pool lacked a hydrostatic valve. It is the height of the pool to which any remedy should be directed.

28 For the reasons given above, the Tribunal considers that the building service provided by the respondent was not carried out in a proper and proficient manner, or was faulty or unsatisfactory. The Tribunal must now consider what 'building remedy order' should be made, if any.

If the Building Commissioner refers a building service complaint to the State Administrative Tribunal, the Tribunal may -

(a) if the Tribunal is satisfied that the regulated building service that is the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, deal with the building service complaint by making a building remedy order; or

(b) otherwise, decline to make a building remedy order.

30 Mr and Mrs Atkinson asserted that the pool was not designed for use in clay soils, because the plans submitted by the respondent to the local council, and signed by Mr Berry, state that the pool is constructed in accordance with AS1839 for installation in sand, sandy silt and slightly reactive clay. Mr Berry gave evidence that the plans were generic plans for below ground pools, which he signed in bulk, rather than plans directed towards the specific circumstances of the site. The respondent indicated that the pool was, in fact, adequate for the site, with the more frequent ribbing used in pools to be installed in reactive soils. The respondent also indicated that the pool had not cracked during the failure. There was no suggestion in Mr Scott's report that the pool, as a whole, was unsuited for installation in clay soils (apart from the issue with the hydrostatic valve) or that the pool was cracked. It is not necessary, therefore, for a new pool to be provided. Mr and Mrs Atkinson are entitled to have the existing pool reinstalled at an appropriately designed level. This is the solution proposed by Mr Berry in the Appendix of his report dated 3 April 2012.

31 The consequences of the defective building service include the damage caused to the landscaping around the pool. Mr and Mrs Atkinson contended, and the respondent did not dispute, that the landscaping would need to be redone, either as a consequence of the failure of the pool or as a consequence of reinstalling the pool. 'Remedy' in s 38(1)(a) and s 38(1)(b) of the Resolution Act should be given a broad interpretation and would, in appropriate cases, include carrying out work necessary to restore the consequences of remedial work.

32 In the present case, however, the respondent did not carry out the landscaping work and does not profess to have expertise in that field. Mr and Mrs Atkinson provided two quotes for the cost of re­landscaping the pool surrounds from specialist landscapers. One quote was for $29,800. The other quote was for $26,554, and was from the contractor originally engaged by Mr and Mrs Atkinson to carry out the landscaping work. The landscaping contractors do not have expertise in installing pools and Mr and Mrs Atkinson did not provide any quotations for the cost of replacing the swimming pool. There had been discussions between the parties, in which the respondent had offered to replace the swimming pool, but no more. In light of the limited expertise of both the respondent and the landscapers, it would be preferable for the respondent to carry out the work of reinstalling the pool and for a specialist landscaper to carry out the landscaping work around the pool. However, the Tribunal cannot make an order to this effect, because the remedies identified in s 38(1)(a), s 38(1)(b) and s 38(1)(c) of the Resolution Act are alternatives, only one of which the Tribunal can order. They cannot be ordered in combination with each other. The Tribunal cannot order the respondent to reinstall the pool and order the respondent to pay the costs of remedial landscaping.

33 The Tribunal is not in a position to make an order under s 38(1)(c) of the Resolution Act because it has not been provided with evidence of the costs of reinstalling the pool.

34 What the Tribunal will do is this. It will program a directions hearing for a date approximately six weeks from the date of this decision. If, during that period, Mr and Mrs Atkinson and the respondent have made mutually acceptable arrangements for the respondent to reinstall the pool at the original height, then the Tribunal will make an order for compensation in the amount of $26,554 in respect of the landscaping work and will make no order in respect of the costs of reinstalling the pool. If, during that period, no arrangements have been made for the respondent to reinstall the pool, the Tribunal will make directions enabling the applicant to provide evidence as to the cost of having the pool reinstalled by third parties, with a view to making an order under s 38(1)(c) of the Resolution Act for payment of the cost of reinstalling the pool, together with the cost of re­landscaping the area surrounding the pool. The intention of these orders is to allow the respondent an opportunity to carry out the work of reinstalling the pool, if that is acceptable to the applicant.

35 The matter will be adjourned to a date to be determined by the Tribunal in consultation with the parties.

I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________