Browse Forums General Discussion 1 Aug 12, 2014 1:14 pm I wanted to share a small win with everyone here. I am currently building a modest home in an out of the way growth area in Melbourne’s west. H2 site. During the tender I negotiated the builder to do the concrete skirt/apron/paving around my property. This cost approximately $2700. This was for to form part of the preventative measures in protecting my slab from heave. My build has been inspected in stages by Building Expert, and he has provided a number of thorough reports. My most recent one being PCI. He picked up that the path did not meet BCA requirements due to the amount of fall given being inadequate. BCA recommends a minimum of 50mm over the first meter. This was reported, and a copy was sent to the builders. The recommendation was that it be ripped up and done again. As you can imagine, this is not the builders preferred course of action. Theirs was to find any documentation they could that supported the lesser fall as compliant. The builder relied on the CSIRO footings maintenance document that had a 1:60 ratio of fall (which is approx. 17mm fall over 1m). There was another document that we didn’t discuss, but they claimed to have around paving standards and tolerances or agregates or some such. In my conversations with my SS, I articulated to him that they cannot rely on guides when there are regulations that overarch any written guide. He seemed to disagree, however its not his fault as the HO had given him the direction. I promptly made a complaint to the head office, and the head office responded to me that day. Their view was still that the work was compliant in light of a number of guides etc. Again, I explained that they could not rely on guides when there was an overarching regulation in place that was in conflict with those guides. When right or wrong is determined, the law is referenced, not a guide that is in conflict with the law. At this stage, the HO advised me that these guides are used to develop the BCA…(wow...) I was quick to advise them that its actually the other way around, and often people writing the guides don’t reference correctly. He asked me to articulate the exact clause for them. I agreed to send them an email. My email copied the exact section and the diagram that showed my inspector was correct. I referenced the builders own engineer reports and soil reports. Coincidentaly the engineer included fall notes in my plans that were an exact copy of the BCA. In the end, it was clear their work was not compliant with BCA. On top of that, CSIRO guide was published in 2003 and BCA is up to date at 2014. The CSIRO guide held a number of disclaimers at the bottom of the document. I articulated to the business that if they want to rely on the guides they have instead of the published regulatory minimum standard, they did so at their own risk, as if and when the work has to be questioned in the future, the evidence so far shows that they have opted to accept non-compliant work under the BCA. This morning I got a call from the construction manager for the west that he had reviewed my points, the BCA, had a number of discussions with peers and another inspector and had concluded that the right course of action was to rip it up and do it again with the 50mm fall. Overall Im glad that the commercial reality of the situation sunk in for the builder. If I’d had to go to VCAT, this would have been open and closed, but a waste of time. Two people I’d like to tanks directly and indirectly are : Building Expert – who has completed my inspections, and with this one issue alone had paid for himself. Tlblhayward – as he had provided a link to the BCA online (which is by the way not easy to find via google byitself. – The link is in this thread: viewtopic.php?f=1&t=65623&p=1206696&hilit=guides+tolerances#p1206696. The other thing I wanted to highlight in this – I work as a compliance controls tester in a large global financial institution (an internal audit function). This invariably provided me additional skills and ability to articulate myself and present arguments that are irrefutable (despite that they may try). One thing for sure is that as long as people know what is right and when people don’t know what they are talking about – not being intimidated and relying on what is law, will always get you through. As a side note, I contacted John Lewer, the guy who had written the CSIRO guide to seek his view on his bublished fall being less than the documented regulatory standard. I thought I’d share his response as it might help or support others in arguing similar points – “When I wrote BTF 18 Vol. 2 Part 3.1.2.3 did not have a minimum fall for paved applications. I was not involved with ABCB after 2005 so I do not know why the non-mandatory deemed-to-satisfy provisions were altered. Clearly the solution must fill the particular need, and in the event that no alternative has been approved by the certifying authority, the provision at 3.1.2.3 should be observed. I am glad to see that at least my 1:60 precipitated some reaction.” While in the end I did not need this response, it was another piece of the salvo I was going to rely on if I had to. Imagine the guy who wrote the guide explaining that it doesn’t hold weight in today’s environment as it did 11 years ago? I have sent this response to the builder so that they are aware that their reliance on guides over regulations is risky business. After all, people refer back to regulations or case law to work out who is right and who is wrong, not guides. Guides are useful where there are no alternatives published, as articulated above in John’s response. Im a happy camper. Creator of superduperonium, expert at expert things, nobel laureate, can hold my breath for 10 minutes. Re: Small win - may be of interest 4Aug 12, 2014 3:16 pm Hi Ponzu, I offer my congratulations to you as well, and good on you for sharing this. It may help out others when negotiating with their builder. BE is definitely worth his weight in gold and your builder too, at the end of the day, did the right thing. If only all builders were willing to rectify their work without making people take them to court. Re: Small win - may be of interest 5Aug 12, 2014 4:18 pm Liliana ....and your builder too, at the end of the day, did the right thing. If only all builders were willing to rectify their work without making people take them to court. thats where it was headed (VCAT anyway), even with the report. unfortunately, builder was unknowledgable in the exact requirments and how legal framework operated (eg guides and standards dont form regulations. Rather guides and standards come from regulations, and sometimes are incorrect due to the nature of how each are published and maintained - as evidenced by the CSIRO doc). What I was hoping to convey was that you have to articulate to the builder (who should already know, but doesnt) the legal requirment and paint the likley (realistic) consequences for them to do be forced/encouraged to do the right thing. The builder didnt just "do the right thing". They tried to fight it. It wasnt untill a very articulate picture was drawn for them, backed up by data that they understood that fighting it would result in wasted time, potential future damages and them looking silly while some first home builder took them to school. They are now inadvertanly better equiped to do the right thing, at least better informed I hope (if they were truly ignorant, which i doubt). Although its like BE's example in his recent VCAT win - the builder admitted to performing hundreds of similarly uncompliant jobs in the area - opening himself up to further claims. The builder was relying on a whole bunch of unrelevant documentation, rather on the minimum legal standards which they did not meet. If this (my issue) had ended up being the same conversation in VCAT with this volume builder, with the same defence strategy ("but this guide says i can do it this way"), there would likley be a published decision in my favour. This then opens up other potential claims in the future. So the "right thing" was more of a commercial decision based on a consumer being equiped with teh right information rather than intimidated by the builder with their fancy acolades and experience. If youre wrong, youre wrong. You know? Sadly in some cases it costs a lot of money to be right, which is why I pushed this now before there was actual damage to my house three years later. Ultimately I wanted people to be aware that for all the pushing of the builder's "im right and youre wrong, were happy to go to VCAT over it, no skin off our nose" type attitude you tend to get when you raise issues, if youre right, persist and do it right, you will get what you are entitled to. Creator of superduperonium, expert at expert things, nobel laureate, can hold my breath for 10 minutes. Re: Small win - may be of interest 6Aug 12, 2014 6:24 pm You are far too modest Ponzu, this is a huge win and you are a star! The essential elements of your win are that you are educated, articulated and pro actively asserted yourself before this potential dispute got out of hand. Most importantly you did your very credible research, were ready and had all the aces to confront builder's ignorance and Poker bluff. Spare a thought for owners who don't have your talents. They have to hire lawyers. It shows that even the best expert evidence may not be enough if you allow yourself in a position of weakness, are poorly prepared, don't do your homework and succumb to intimidation bluff and threats. As building expert I am the biggest link in the chain of your case but your case is only as strong as your weakest link. I can't win cases, only you can and you did, but you better make sure that your biggest link is a good one and you did! This is where VBA should step in and make sure that builder is appropriately penalised for it never to happen again. Will it happen? Thank you and Liliana for your kind comments. Foremost Building Expert in Australia,assisting with building problems/disputes, building stage inspections,pre-contract review advice for peace of mind 200 blogs http://www.buildingexpert.net.au/blog Re: Small win - may be of interest 7Aug 12, 2014 6:38 pm Everything managed to avoid official channels so no one is getting penalised commercial decisions, remember? Thanks for the help BE. Creator of superduperonium, expert at expert things, nobel laureate, can hold my breath for 10 minutes. Re: Small win - may be of interest 8Aug 12, 2014 7:02 pm Great thread..... Ponzu if you had to take the builder to VCAT would you have done it after the propoerty was handed over to you or take him to VCAT while he is building your property.... 'It's not the size of the dog in the fight, it's the size of the fight in the dog.' Re: Small win - may be of interest 9Aug 12, 2014 7:24 pm Handy007 Great thread..... Ponzu if you had to take the builder to VCAT would you have done it after the propoerty was handed over to you or take him to VCAT while he is building your property.... While building. Numerous reasons. Iam fortunate enough to be able to afford mortgage and rent without feeling it so, once I looked3d past the "want now" mentality, its better to do it while they have a veated interest still (remaining progress payment and potential for liquidated damages if it drags past contract). Creator of superduperonium, expert at expert things, nobel laureate, can hold my breath for 10 minutes. Re: Small win - may be of interest 10Aug 12, 2014 8:05 pm Anyone with a dispute, this is a textbook case how to manage it! Foremost Building Expert in Australia,assisting with building problems/disputes, building stage inspections,pre-contract review advice for peace of mind 200 blogs http://www.buildingexpert.net.au/blog Re: Small win - may be of interest 11Aug 13, 2014 1:25 am I am glad that my hours of searching for the Building Code came in handy for you too. Re: Small win - may be of interest 12Aug 13, 2014 5:10 am Good result, guys. I'm so going to appoint a building inspector for our build! Re: Small win - may be of interest 13Aug 13, 2014 2:15 pm Ponzu the head office responded to me that day. Their view was still that the work was compliant in light of a number of guides etc. Again, I explained that they could not rely on guides when there was an overarching regulation in place that was in conflict with those guides. Ponzu the HO advised me that these guides are used to develop the BCA…(wow...) I was quick to advise them that its actually the other way around, and often people writing the guides don’t reference correctly. Ponzu ... if they want to rely on the guides they have instead of the published regulatory minimum standard, they did so at their own risk Ponzu not being intimidated and relying on what is law, will always get you through. Re: Small win - may be of interest 14Aug 14, 2014 8:16 pm That's a great win. Well done Ponzu. Good work as always BE. I engaged my builder in December last year and we’ve been working on preliminary drawings for last couple of months. I got a call from the salesperson this morning… 0 576 Hi all, We are looking to build a new two storey house in western Sydney. Can anyone recommend a smallish builder to go with? We are trying to stay away from the big… 0 12149 consider putting in wall WC instead of robe in the same bedroom, then it might be doable to hook up to the existing piping. 4 6633 |