Dixonbuild Pty Ltd v Queensland Building and Construction Commission [2025] QCAT 401

• [2] Item 1 in the "Defective work list" attached to the Direction to rectify or remedy dated 15 July 2024 describes the subject work ("the work") as:

The as constructed stormwater system included associated earth works does allow for the free collection and drainage of stormwater adjacent to and around the southern side of the house, resulting in poor building practices in that the stormwater pits being higher than adjacent ground levels and ground level not having sufficient grades to direct the water away from the building. - This pertains to item 4 of the complaint form.

• [3] Schedule 1 to the Queensland Building and Construction Commission Regulation 2018 (Qld) ("the Regulation") is titled "Work that is not building work". Section 11 of Schedule 1 sets out the following:
  1. Work for water reticulation systems, sewerage systems or stormwater drains

(1) Construction, extension, repair or replacement of a water reticulation system, sewerage system or stormwater drain, other than works connecting a particular building to a main of the system or drain.

• [4] Item 1 in the Direction to rectify or remedy describes the work as a "constructed stormwater system". Further, the Respondent refers to the work as a "stormwater drainage system"[1] or "stormwater drainage".[2] The Building Inspector for the Respondent, Rodney Turkington, describes the works as follows:[3]
  1. Field gullies are pit-like structure that are seated in an excavation that is backfdled. The terms 'field' gullies and 'yard' gullies can be used interchangeably. The purpose of the gullies to collect surface water.

Effective filed gullies are integral because they carry water away from the dwelling. When they are defective, there is the potential to impact the performance of the dwelling.

1. The field gully pits installed by the Applicant are connected to a drain in that they are physically connected to a pipe that drains water away from the location of the field gully pit.

• [5] The Applicant refers to the work as "field gullies".[4] The Managing Director for the Applicant states that the purpose of the field gullies is to . .collect stormwater.. .".[5]
• [6] There is no suggestion in the materials that the stormwater system is collecting water from the dwelling on the property, nor is there anything that would satisfy the Tribunal that the system is collecting water from any source other than "stormwater". Therefore, the Tribunal is satisfied that the work was indeed the construction of drainage that can appropriately be described as a componentry forming a "stormwater drain".
• [7] Neither party suggests that the stormwater system is physically connected to the residential dwelling on the property. Therefore, in circumstances where the work was for the construction of a stormwater drain not connected to the dwelling it would appear prima facie that section 11 of Schedule 1 of the Regulation applies and that the work is not building work. However, the Respondent submits to the contrary as follows.

• [8] The Respondent submits that a licence is required to perform work to install a stormwater drainage system.[6] Whether or not a licence is required is immaterial to the determination of whether or not the work was building work pursuant to the Queensland Building and Construction Commission Act 1991 (Qld) ("the Act").

Are the pipes and traps a building or buildings?

• [9] The Respondent further submits that part of the stormwater drainage system is actually a "building" because the "pipework and traps" are a fixed structure and therefore satisfy the definition of "building" pursuant to the Act.[7] [8] The Respondent refers to the decision in Cheshire^ wherein Justice Henry found that an agricultural pipe was a fixed structure. However, as noted by the Applicant, the decision in Cheshire related to section 5(1 )(k) of the now repealed Queensland Building Service Authority Regulation 2003 (Qld) that excluded from the definition of building work "construction, extension, repair or replacement of a water reticulation system, sewerage system or stormwater drain, outside the boundaries of private property." Further, Justice Henry contemplated the possibility that the work the subject of the dispute in Cheshire could have been excluded work if it were not on private property.[9] The decision in Cheshire does not unequivocally support the submission of the Respondent. Further, the decision in Cheshire was based on a substantively different provision.
• [10] Nonetheless, it is the submission of the Respondent that, in the present matter, a stormwater drain is connected to a building (being the pipework and traps) and therefore section 11 of Schedule 1 of the Regulation does not apply. The Building Inspector for the Respondent, Mr Turkington, explains that the "purpose of the field gullies is to carry water away from the dwelling".[10] The stormwater drain system is made up of components and the purpose of the entire system, inclusive of all componentry, is to act as a stormwater drain. If the Tribunal were to take a literal approach, it could hold that any fixed component of a stormwater drain is indeed a fixed structure thereby satisfying the definition of a building pursuant to the legislation. Applying this approach, it would be difficult to imagine any stormwater drain not having some fixed component that could be identified as the "building" part of the system with another component identified as the stormwater drain. For example, a stormwater drain might include an inspection or inlet point with a grate fixed in place with concrete. The concrete and grate could then be described as fixed structures or buildings. This literal interpretation gives rise to an absurdity in that any stormwater drain that has some minor fixed component (such as a grate) would be considered a stormwater drain connected to a "building". Further, the literal interpretation would render the exclusion in section 11 of Schedule 1 of the Regulation (stormwater drains not building work) nugatory in circumstances where a stormwater drain has any fixed component howsoever minor that component may be.
• [11] To give effect to the purpose of section 11 of Schedule 1 of the Regulation being the exclusion of stormwater drains from the definition of building work, the Tribunal considers that the work, including all componentry of the work, which was installed "to carry water away from the dwelling", remains a stormwater drain despite having fixed components.

• [12] The Respondent submits, in the alternative, that the field gullies "... provided drainage in connection with the dwelling."[11] On the submission of the Respondent this would mean section 11 of Schedule 1 of the Regulation does not exclude the work from the definition of building work. The Respondent submits that a "physical connection is not required to satisfy the definition [of connection]".[12] It is arguable that a stormwater drain may be, in effect, connected to a building (in this context a dwelling) without the drain's componentry physically touching the dwelling. For example, stormwater could fall from a short cut-off downpipe into a collection point of a stormwater drain that is slightly detached from the dwelling (whether or not this hypothetical example abides by regulation or codes is a different matter). In this hypothetical example, the stormwater collected from the roof of a dwelling is captured and entirely controlled and directed by design to move through a specific set course into the stormwater drain. To broaden the interpretation of "connecting" to an interpretation that goes beyond the controlled movement of stormwater collected from the dwelling through a specific passage to the stormwater drain would again render section 11 of Schedule 1 of the Regulation futile because it could be said that all stormwater drains constructed on a property with a dwelling (even stormwater drains not proximate to the dwelling) will invariably move stormwater away from a dwelling thereby "connecting" the stormwater drain to the building/dwelling as part of drain system to move water away. This interpretation would mean that any stormwater drain on any property with a dwelling would be, in effect, connected for the broad purpose of moving stormwater away from the dwelling thereby nullifying the provision in question.
• [13] In the present matter, there is no controlled movement of stormwater collected from the dwelling through a specific passage to the stormwater drain. To the contrary, the Building Inspector Mr Turkington confirms that the water from the roof of the dwelling is collected to supply water from the dwelling.[13] The water from the roof is not directed through a specific passage to the stormwater drain. The works cannot be described as works connecting the dwelling to any part of the stormwater drain. It is not necessary to consider whether any part of the stormwater drain could be described as a "main" because there is no connection between the dwelling and any part of the drain.
• [14] The work was for the construction of a stormwater drain. The work is not building work.

• [15] Schedule 1 of the Regulation also excludes earthmoving and excavating from the definition of building work. Item 1 in the Defective work list refers to "...associated earth works...". The associated earth works were undertaken as part of the work for the construction of the stormwater drain. It is not necessary to consider whether the associated earth works could be described as "earthmoving or excavation" and independently excluded from the definition building work pursuant to section 32 of Schedule 1 of the Regulation because the associated earth works were part of the work for the construction of a stormwater drain and would, in any event, remain as work that is not building work because it is captured by section 11 of Schedule 1 of the Regulation.

• [16] The Tribunal is satisfied that the work is not building work. Accordingly, the preliminary issue/question to be decided pursuant to direction 4 made by the Tribunal on 19 March 2025 is determined as follows:

1. The subject of item 1 in the Direction to Rectify is not "building work" under

the Queensland Building and Construction Commission Act 1991 (Qld).

[1] Submissions of the Respondent filed 21 February 2025 at paragraph 3.11.

[3] Statement of Rodney Turkington filed 21 February 2025 at paragraphs 16 to 17.

[4] Written argument of the Applicant filed 31 January 2025 at paragraphs 28 to 30.

[5] Statement of Timothy Mark Bartholomaeus filed 31 January 2025 at paragraph 9.

[6] Submissions of the Respondent filed 21 February 2025 at paragraph 3.11.

[7] See Submissions of the Respondent filed 21 February 2025 at paragraph 3.16 to 3.28.

[8] Cheshire Contractor Pty Ltd v Everett [2017] QSC 287, [21].

[10] Statement of Rodney Turkington filed 21 February 2025 at paragraph 23.

[11] Submissions of the Respondent filed 21 February 2025 at paragraph 3.29.

[13] Statement of Rodney Turkington filed 21 February 2025 at paragraph 23.