Eade v Maloney [2019] VBAB 18;

RESPONDENT Steve Maloney (Relevant Building Surveyor)

FIRST INTERESTED PARTY Victorian Building Authority

SUBJECT LAND 1-3 Elise Road, Caroline Springs, Vic, 3222

BEFORE Eric Riegler (Chairperson), Sharon Houlihan and Warren Knight (Members)

1. Pursuant to s 149(1)(b) of the Building Act 1993, the decision of the Respondent to refuse to issue an occupancy permit is quashed.
2. Within three (3) business days of receipt of this determination, and pursuant to s 149(4) of the Building Act 1993, the Respondent must issue an occupancy permit for the Subject Land.
3. Liberty to apply on the question of costs, provided such liberty is exercised within 14 days of the date of this determination.

_______________________________ ________________________________

1. On or about 18 September 2018 the Respondent, as the relevant building surveyor, issued a building permit for the construction of a residential dwelling on the Subject Land. The Building Permit named BA Murphy Constructions as the builder of that dwelling.
2. Pursuant to that building approval, the Builder has constructed the dwelling depicted in the approved architectural and engineering design ('the Dwelling'). That design incorporated the use of a high front slotted eaves gutter. A Compliance Certificate was issued by Bradley McGowan, the registered plumbing contractor, which was given to the Respondent.
3. Subsequently, the Respondent was requested to issue an occupancy permit. That request was denied. It was denied because the Respondent formed the view that the installation of a slotted eaves gutter as an acceptable overflow measure did not meet the Deemed to Satisfy ('DTS') requirements of the National Construction Code of Australia 2016 ('NCC') and as a result, an alternative performance solution was the only pathway for compliance.
4. That issue lies at the heart of this appeal proceeding. According to the Applicants, there is no requirement for the Respondent to consider a performance solution in circumstances where a valid Compliance Certificate has been issued by the relevant plumber and sighted by the Respondent. On the other hand, the Respondent contends that the position is not as clear-cut as the Applicants contend. The uncertainty arises because of an anomaly within the NCC, which on one view, states that compliance can be achieved under the DTS provisions of Part 3.5.2 (Table 3.5.2.4) of Volume 2 of the NCC whereas the Victorian amendment of Volume 3 states that DTS compliance can only be achieved by compliance with AS/NZS3500.3 or Section 5 of AS/NZS3500.5.
5. According to the Respondent, the installation of a slotted eaves gutter is not contemplated under the provisions of AS/NZS3500.3. Consequently, the only pathway to compliance is through a performance solution.
6. Although the Compliance Certificate dated 10 April 2019 purported to be based upon a performance solution, no or very little supporting documents were produced substantiating that performance solution. Consequently, the Respondent refused to accept that Compliance Certificate on its face. A second Compliance Certificate was then issued by the relevant plumber, which made no mention of a performance solution. However, as indicated above, the confusion as to whether a performance solution was required ultimately lead to the Respondent refusing to issue an occupancy permit until that issue was clarified.
7. On 15 April 2019, the Applicants issued this appeal proceeding, seeking a determination quashing the decision to refuse to issue an occupancy permit and requiring the Respondent to issue an occupancy permit.
8. Although this proceeding is to be determined on its own facts, there are 12 associated proceedings relating to different properties but where the factual matrix follows a similar path. In those proceedings, it is common ground that slotted eaves gutters have been installed in accordance with approved architectural drawings. Compliance Certificates have been issued by the relevant plumber, however, the Respondent has refused to issue an occupancy permit on substantially the same grounds as relied upon in this proceeding. Consequently, those 12 other proceedings were heard concurrently with this proceeding and these reasons are to be read as applicable to those associated proceedings, which are as follows:
   • (a) Case number 451533 (22-24 Hermitage Mew, Drysdale);
   • (b) Case number 451550 (33 Witchetty Drive, Ocean Grove);
   • (c) Case number 451559 (21 Cassava Street, Armstrong Creek);
   • (d) Case number 451558 (13 Senna Circuit, Ocean Grove);
   • (e) Case number 451556 (18 Cassava Street, Armstrong Creek);
   • (f) Case number 451555 (13 Cassava Street, Armstrong Creek);
   • (g) Case number 451549 (4 Tomatin Street, Ocean Grove);
   • (h) Case number 451554 (43 Ross Street, Armstrong Creek);
   • (i) Case number 451553 (26 Ross Street, Armstrong Creek);
   • (j) Case number 451552 (9 Isle Avenue, Armstrong Creek);
   • (k) Case number 451551 (11 Neway Avenue, Delacombe); and
   • (l) Case number 451557 (15 Senna Circuit, Ocean Grove)

1. The Applicants were represented by Mr Shaw of counsel, who prepared comprehensive written submissions in support of the Applicants' contention that an occupancy permit should be issued. Further evidence was given by Mr Paul Lynch, engineer, who had prepared a report dated 29 May 2019, analysing the as constructed slotted eaves gutter in the context of a performance solution.
2. The Respondent appeared in person. In addition, the Victorian Building Authority appeared as an Interested Party and was represented by Mr Krunic, its in-house lawyer and Mr Lowman, senior technical advisor.
3. There are two principal arguments advanced by the Applicants in support of their application:
   • (a) Under s 44 of the Building Act 1993 ('the Act'), it is open for a building surveyor to issue an occupancy permit once the building surveyor has seen a copy of the compliance certificate. In that sense, there is no requirement for the building surveyor to 'second-guess' whether the plumbing work has been done in accordance with the National Construction Code because the building surveyor can rely absolutely on the compliance certificate.
   • (b) Having regard to the expert evidence of Mr Lynch, even if a performance solution was required, the as-constructed slotted eaves gutter satisfies such a performance solution.
4. By contrast, the Respondent submits that it is unprofessional for a building surveyor to accept a compliance certificate as conclusive proof that the plumbing work complies with the NCC. Moreover, the Respondent submitted, correctly in the Board's view, that the requirement to ensure that the as-constructed works would not lead to a situation where water or moisture was able to ingress the Dwelling was fundamental to the question whether the Dwelling was fit for occupation. According to the Respondent, he could not be satisfied that this fundamental condition had been fulfilled simply by sighting the Compliance Certificate.
5. Further, the Respondent and the Interested Party submitted that the pathway for compliance was prescribed under Volume 3 of the NCC ('the Plumbing Code'), which specified that compliance could only be achieved if the as-constructed works work complied with AS/NZS3500.3:

Vic D1.2 General Requirements

(1) The design, construction, installation, replacement, repair, alteration and maintenance of a roof drainage system must be in accordance with AS/NZS 3500.3.

1. According to the Interested Party, AS/NZS3500.3 did not contemplate the use of a slotted eaves gutter. Therefore, a performance solution was required.

1. The Board appreciates that there is tension between Volume 2 of the NCC, insofar as it relates to plumbing work and the Plumbing Code (Volume 3 of the NCC). On one view, the functions of the relevant building surveyor, in terms of assessing an application for a building permit, inspecting building work and issuing an occupancy permit are found under the Act, the applicable Building Regulations, Volumes 1 and 2 of the NCC and any referenced Australian Standards. Volume 3 of the NCC, being the Plumbing Code, is not referred to in the Building Interim Regulations 2017 as a document for a relevant building surveyor to consider. That leads to an anomaly because building approval is conditional upon the proposed works complying with Volume 2 of the NCC. Volume 2 of the NCC expressly includes a slotted gutter system under its DTS provisions.
2. On the other hand, the Plumbing Code does not expressly refer to a slotted gutter system. Indeed, it references AS/NZS3500.3, which provides various examples of gutter systems with suitable overflow measures within its Informative Section, none of which depict a slotted gutter system. According to the Respondent and the Interested Party, the absence of a slotted gutter system within the examples provided in AS/NZS3500.3 indicates that this type of gutter system does not fall within the DTS provisions of the Plumbing Code.
3. Irrespective of the tension between the Volume 2 of the NCC and the Plumbing Code, the expert opinion evidence of Mr Lynch, set out in his report dated 29 May 2019 and supplemented with oral evidence, is that the as-constructed gutter system substantially complies with AS/NZS3500.3, save for one section of roof, where the gutter installation needed modification.
4. In preparing his report, Mr Lynch isolated the eight sections of roof which comprised the Dwelling. He then calculated the total water overflow based on a 1 in 100 rainfall intensity event and then compared that data with the DTS requirements under AS/NZS3500.3, which is set out in the table below.

Deemed to satisfy water overflow per meter from gutter (L/s/m)

Possible water overflow per meter from gutter (L/s/m)

% of provided overflow required for deemed to satisfy solution

The overflow capability of the high fronted slotted Quad Gutter 115 is greater than the deemed to satisfy as referenced in AS3500.3.

It is therefore demonstrated that the NCC Performance Requirements, DP 1.2 Overflow Devices or Measures have been satisfied with the exception of roof sub-catchment 'G'.

Roof sub- catchment 'G' will be provided with the deemed to satisfy overflow provision, namely a 10 mm gap between the gutter and the facia.

1. The reference to an overflow provision, namely a 10 mm gap between the gutter and the fascia is taken from Appendix G in AS/NZS3500.3 - EXAMPLES OF OVERFLOW MEASURES FOR EAVES GUTTERS (Informative). That section of AS/NZS3500.3 gives four examples of acceptable full-length (continuous) overflows, one of which is to space the eaves gutter 10 mm off the fascia, so as to allow any overflow to run between the back of the eaves gutter and the exterior face of the fascia, avoiding ingress into the building.
2. Another method of compliance set out under Appendix G of AS/NZS3500.3 is to install a flashing at the back of the eaves gutter extending up the fascia and over the roof to a point higher than the front of the eaves gutter. Again, the object of this design is to ensure that overflow will run over the front of the gutter rather than ingress into the building.
3. Evidence was given during the hearing that the gutter servicing Roof G has now been modified to accord with this alternative method of compliance. Therefore, the expert opinion of Mr Lynch, which the Board accepts, is that the as-constructed gutter system on this dwelling:
   • (a) complies with the performance requirements under DP1.2 of the Plumbing Code, insofar as the construction relates to Roof A, B, C, D, E, F and H; and
   • (b) complies with the DTS requirements under AS3500.3 insofar as the construction relates to Roof G.
4. In those circumstances, it is unnecessary for the Board to dwell further on the tension between Volume 2 of the NCC and the Plumbing Code. Moreover, it is unnecessary to look further at the as-constructed work. The Respondent can or should be reasonably satisfied that the Certificate of Compliance reflects compliance in a broader sense.
5. Mr Lynch also gave evidence in relation to the type of slotted gutter system installed on site and confirmed that it meets the area and set-down dimensions specified in Table 3.5.2 4 of the NCC (Volume 2). This confirms that the gutter system installed complies with the notes on the approved architectural drawings, which referenced that Table.
6. That being the case, the Board sees no reason why the issuing of an occupancy permit should be withheld on the ground that the slotted gutter system is non-compliant. Accordingly, the Board determines that the decision to refuse to issue an occupancy permit should be quashed and a corresponding order be made directing the Respondent to issue an occupancy permit.

1. As indicated above, there are 12 other properties constructed by the same builder using the same subcontracting plumber and where building permits have been issued by the same building surveyor. In all of those cases, the same slotted gutter system has been installed. In each case, the relevant building owner has issued an application under s 138 of the Act, seeking the same relief as sought in this proceeding.
2. As is the case with this property, the Respondent has refused to issue an occupancy permit principally because of the same grounds as relied upon in this proceeding. Further, the Respondent said that the only remaining issue which prevented the issuing of an occupancy permit in respect of the other 12 properties was concern over the slotted gutter system and whether it complied.
3. In all the other 12 properties, Certificates of Compliance have been issued by the relevant plumber and have now been sighted by the Respondent.
4. Mr Lynch gave evidence that he conducted a desktop audit of all remaining 12 properties to determine the eaves gutter sub-catchment area. He said that none of the other dwellings contained a roof catchment area greater than Roof G above and that the areas were consistent with Roofs A-F and H of the Dwelling. Consequently, Mr Lynch opined that in those circumstances, he believed that all 12 properties complied with the Plumbing Code, insofar as the roof drainage system was concerned.
5. Mr Lowman, the senior technical advisor for the Interested Party, conceded that if the eaves gutter sub-catchment area for the remaining 12 properties was similar to the eaves gutter sub-catchment areas for the Dwelling (excluding Roof G), then it followed that those properties also complied with the Plumbing Code.
6. Having regard to the above, the Board is satisfied based on the evidence of Mr Lynch and his quantitative analysis that the remaining 12 properties comply with the Plumbing Code, insofar as a roof drainage system is concerned. Consequently, orders consistent with the orders made in this proceeding will be made in all 12 other proceedings.