Building & Construction – Proper investigation by Watson & Watson solved the issue in favour of the Builder


In early 2018 Watson & Watson received instructions from a home builder who had been served with an Application by the owner commenced in the NSW Civil and Administrative Tribunal (NCAT).

The development approval for the new home required a stormwater disposal system which included a stormwater detention tank with an overflow system to the rear garden with the use of a level spreader in extreme circumstances.  The level spreader is a pipe which runs at or very slightly below the finished level of a lawn and is 13 metres long.

Without proper certification that the stormwater system was installed in accordance with the approval the owner could not obtain an Occupation Certificate.

It was not an obligation of the Builder to obtain the Occupation Certificate.

However the Builder’s obligation was to construct the works which it had contracted to do in a proper and workmanlike manner and in accordance with the statutory warranties as provided for the Home Building Act.

The NCAT proceedings were commenced without a proper investigation as to the circumstances surrounding the problems that the owner faced.

Further the Owner complained to the Local Council.  The Local Council determined that the Private Certifier could not issue the Occupation Certificate without the appropriate Certificate as to compliance of the stormwater system with the DA.  This caused self inflicted problems for the owner.  In our view it is inappropriate for an owner to complain to the Council unless there is certainty that the complaint to the Council will result in the owner achieving what the owner is seeking, namely in this case, the Occupation Certificate.  That could not have occurred in this case.

The owner engaged Solicitors who engaged Hydraulic Consultants to consider the adequacy of the stormwater system.

One of the issues was whether in fact the level spreader was actually installed.  The owner had taken an active involvement during the construction of the works and one would have thought the owner would know whether the level spreader was installed. However we surmise it was perceived by the owner that if the level spreader had not been installed then the Builder had not completed the works and there would be a valid claim against the Builder.

The owner also obtained the services of a Building Consultant.  The Building Consultant utilised a camera and reported that there was a pipe (which in fact was the level spreader) and reported where it was located.  That report was utilised as part of the evidence on behalf of owner in a claim against the Builder.

Further input or investigations by the owner would have ascertained that the Builder was not responsible for the defect as work undertaken by the owner after obtaining possession of the house resulted in the stormwater system and more particularly, the level spreader being compromised.

The owner after obtaining possession of the site following construction of the house had landscaped the rear garden to a high quality and that landscaping had resulted in the stormwater system not operating as it had been designed or intended.  As such the Hydraulic Engineer could not certify compliance and the Private Certifier could not issue an Occupation Certificate.

Watson & Watson were instructed by the Builder after the owner had filed the NCAT Application in which the Owner sought a significant amount for the removal of the landscaping and the costs of rectifying the stormwater system.

Once Watson & Watson were instructed we reviewed the evidence, made enquiries and obtained evidence which proved the facts which resulted in Watson & Watson being able to satisfy the owner and the owner’s lawyer that the Builder was not responsible.

Watson & Watson ascertained that the owner had submitted landscape plans as part of the Development Application.  On reviewing the landscaping plans it became clear that the landscaping as undertaken by the owner was not in accordance with the approved landscape plans.  There was a major difference.  The effect of this was that the level spreader had been buried about a metre below hard surfaces and the designed stormwater system could not operate as designed.

On behalf of the Builder as part of the investigations an alternative solution was found in substitution of removing the whole of the landscaping that had been installed and constructed by the owner following possession.

As it happened following the investigations and the proof of facts contrary to the facts and law ascertained by the Owner, the matter was settled on the basis that the owner’s claim would fail and the owner paid a contribution to the costs of the Builder.  The cost to the Owner was extreme having regard to the outcome.

Our experience at Watson & Watson indicates that proper investigation is required.  Further sometimes cases are run and won on mere assertions if there is no adequate evidence to prove the opposite.

There are many risks associated with claims whether they are brought by the Applicant (either an owner or Builder) or in the defence by the Respondent (either a Builder or owner).

At Watson & Watson we are experienced in dealing with and considering the matters on behalf of our clients and dealing with the issues on a project by project basis to obtain the best outcome on behalf of our clients.

If you have any issues arising from any matters in particular building matters please contact Richard Watson Accredited Specialist Building & Construction or his Personal Assistant Shereen DaGloria to discuss the matter and arrange an initial conference so that we can discuss the matter and address your concerns.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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