WE ARE THE ONLY CONSUMER ORGANIZATION IN AUSTRALIA REPRESENTING THE INTERESTS OF ALL BUILDING CONSUMERS
Consumers who attempt to build, extend, renovate or do repairs are totally unprotected and we can prove that this has been the case for the last 23 years. Many independent inquiries have confirmed this fact, but no government will listen or act to stop what is essentially ‘legalized’ building fraud. Just read some of the stories of those whose lives have been ruined, Then come join us and be part of bringing about genuine change.
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RELEVANT BUILDING SURVEYORS ARE LIABLE FOR NEGLIGENCE IF…
Now that Relevant Building Surveyors must be selected by Home Owners (and not by the Builders), this implies a contractual arrangement which makes each RBS answerable directly to the home owner, for their failure in any duty of care or judgement where detriment arises because of that failure… and makes them an up-front target for many negligence claims.
They are no longer protected (as in the recent past) where the builder was the person being sued, by virtue of the building contract between home owners and the builder.
Relevant Building Surveyors should therefore pay very close attention to the duties that they actually have as follows:-
1. Soil reports must not be approved if they have not assessed the normal condition requirements of the BCA P2.1(b) (xiii)
2. Soil reports must not be approved if they have not assessed the normal condition requirements of AS2870 1.3.2 and 1.3.3... and given adequate reasons as to why Appendix D of the code need not be consulted.
3. Soil reports must not be approved if they have not assessed the requirements to do with classification P for abnormal condition requirements of AS2870 2.4.4... and given adequate reasons as to why Appendix D of the code need not be considered.
4. Soil reports must not be approved without considerable effort having been made by the soil report writer to ascertain the whereabouts of large trees, past buildings or rows of trees near the permit allotment
5. The specific requirements of the home owners must be considered
6. The competence of the Certifier Building Inspector must have been ascertained prior to hiring that operator
7. There must be some assurance that the Certifier Building Inspector is paid sufficient recompense for time that needs to be spent to uncover defects in the works that may cause considerable detriment to the house at a future date... pertinent to the matters at hand and the duties of the inspector / building surveyor combination. For instance lack of compliance with truss manufacturer written directions to do with truss connections (at walls and truss to truss) / verticality of trusses within acceptable limits / obvious over-sized knots in truss members / etc. Plus another instance – frame inspection time spent being adequate to assess fixings, joints and member spacings
8. There must be appropriate measures (pre-pour/pre-placement of mesh and underlays) taken by the builder to ensure that (where stated as appropriate in the code AS2870), the soil report writer spends adequate time assessing the soil condition of the foundation soils immediately under the footings-to-be,
9. There must be sufficient wall bracing during construction against wind
10. There must be sufficient temporary protection (and on-going care of) formwork / scantling / fencing / for retaining walls / swimming pools / etc. to do with the works... and the owners must be made aware of these requirements and critical maintenance.
Possibly as many 100 Relevant Building Surveyors (RBS) gave permits for houses where incorrect soil report soil classifications were ascertained using the Ys estimation method in ABNORMAL climatic conditions instead of using Appendix D of the code AS 2780.1.
In many ways, the RBS is top of the chain of responsibility on every house being built… and (as regards highly reactive soils such as those in the outer western Melbourne suburbs) THEY MUST FROM NOW ON insist on more detailed soil investigations right at the start… before issuing building permits (as most if not nearly every RBS did prior to the 2016 reforms by the Victorian Government). Most may still be making the same mistake.
If they continue on in the same vein, and rely on the history of lawsuits almost solely being against the builders (and not against RBS’s)… even though we think builders and soil engineers may continue to do a deal where the cheaper alternative (Ys estimation method) is used, even when it is not permitted under the code AS 2870.1 (and before the revisions in 2011 never was we should point out), there is now a strong likelihood that the Relevant Building Surveyors will be sued by the home owners directly, for (wrongly) permitting this method to be used to arrive at the soil classification of a new home site during abnormal (soil) climate conditions.
In other words the structural engineer should not have designed the slab or strip footings for the project in accordance with the under-stated classification requirements. (We’ll get to structural engineers later in this series of articles).
We think it may be one of the duties for a RBS to have a basic knowledge of the Code AS 2870.1. There may have been a lecture in the past that should perhaps have been listened to more closely… one that explained that the Ys estimation method used for these inadequate site soil classifications WAS NOT EVEN PERMITTED DURING ABNORMAL CLIMATIC CONDITIONS.
The deeply dried volcanic loam soils of (at least) the outer western plains of rapidly expanding Melbourne (during the 13.5 year drought ending in 2010), have not really had the chance to recover fully… SO IT IS HIGHLY UNLIKELY THAT NORMAL CONDITIONS HAVE RETURNED TO THOSE SOILS YET.
The AIBS (Australian Institute of Building Surveyors) clearly states that...
“Building surveyors are not responsible for the level of workmanship, quality of building work, product reliability or warranties implied under contractual arrangements between consumers and builders.”
And neither are the Certifying Building Inspectors who carry out the regulatory (usually 4) mandatory inspections responsible for the above matters…
The AIBS (Australian Institute of Building Surveyors) further states that...
“A building surveyor assesses the requisite documentation that must be included with an application for a building permit.
Building surveyors have a sound knowledge of the Act, Regulations and BCA, and provide regulatory advice to ensure that the building permit will substantially comply with the Building Act, Regulations and National Framing Code (previously called the BCA)”.
And further on in its document, it states that...
“The role of the building surveyor is to inspect whether the building work complies with the Act, Regulations and the BCA(implies National Construction Code which has since it replaced the BCA).”
According to the AIBS, the RBS does ENSURE that the permit will substantially comply with the National Framing Code (previously called the Building Code of Australia), amongst other acts and regulations.
And this implies that the Relevant Building Surveyors must ensure that all forces which act on the footing system of a new home are adequately catered for (including heave)… not likely if the site classification is way under what it should be.
They are therefore very responsible for the site being classified correctly via a soil report, and must ensure that the correct method of assessing this classification of the soil is compliant with AS 2870.1 the Australian Standard Code for Residential Slabs and Footings.
Has anyone heard of the de-registration of even 1 (of perhaps as many as 100) Relevant Building Surveyors who presided over incorrect soil reports? There are as a result of this a conservatively estimated 4700 badly deformed waffle-pod slab homes resulting from under-stated soil classifications?
Do you think, (as VBAG does), that Relevant Building Surveyors should insist on far more detailed soil reports… STARTING NOW, in the outer western new suburbs of Melbourne (selling at 5 per day we estimate)?
And do you think (as VBAG does), that Relevant Building Surveyors’ should remove themselves from any historic cronyistic arrangements with builders and soil testers from now on, (where we say it is likely that builders still might advise new home owner clients that their (builder’s) chosen RBS will ensure that their completion date does not have to be extended and/or that the contract price can remain unaltered?
VBAG keeping Building Connedsumers & hopefully the general public well informed.
(((Re-posted article with new heading after 70 total views... our apologies.)))
BUILDERS ARE PARTLY OR WHOLLY LIABLE FOR NEGLIGENCE IF…
Detriment occurs as a result of the builder failing to exercise sufficient care and expertise… and as a result fail to perform one or more of his duties to a professional level of competence in accordance with:-
• Current Australian Standards & Codes,
• Current Building Regulations,
• Current Safety Regulations,
• The Building Contract,
• The Specification, and
• The Permit Documents.
Being a Builder (Unlimited) is a very responsible job.
And being a competent builder deserves considerable respect.
Builders have a contract directly with the home owners and to date have been first stop for disputes about defects built into the home at completion. Unfortunately DBDRV has been formed to try to make the dispute go away, basically expediting them. That is their main aim... and pressure is applied accordingly.
But liability is not always fully the fault of the builder and could be shared via the Proportionate Liability Act.
Builders can join parties with other players in the documentation stage through to completion stage of every project for their part in the detriment caused.
BUILDERS MAY NOT REALISE THOUGH…
That there are several more responsibilities of a Builder (Unlimited)… in the form of unwritten, (but nonetheless implied) warranties, which go hand-in-hand with constructing a dwelling or adding onto a dwelling, (or sometimes apartment towers for that matter).
A failure to comply with these other warranties (implied but not stated in the standard building contracts of the HIA and MBA), can result in your new homes, units and additions being built to a poor (unacceptable) standard… and will then be a breach of the important builder’s duty of building every component and system incorporated into the home, well enough to be likely to reach their reasonable life expectancies.
This involves another (unwritten) implied warranty… that every component and system incorporated into the home complies with minimum requirements of manufacturers.
One more implied warranty is that expert judgement employed to permit a performance solution (previously called an alternative solution); and used in the new home, unit or additions project, must actually be expert… and the time factor invariably applies to each and every one of these.
These failures to comply with implied warranties often result in defects and/or latent defects… and they do not have to fail during the warranty period.
So permitting them to be built into new homes, units and additions is the result of a failure of a duty of care, and often due to inadequate (or virtually no) supervision.
How else could dozens of defects be built into the average new home to the tune of $25 000 average to rectify them (as distinct from band-aiding them)?
As our previous article states…
IT IS TIME TO CHANGE…
And it is therefore time to expend a lot more effort on quality supervision.
Unfortunately, specifications are so bereft of detailed workmanship clauses, that general dumbing-down of the entire residential building industry has already progressed a long way over the last 33 years since these clauses were progressively removed. A new standard is required urgently.
But ignorance is no excuse (as they say).
Perhaps the BUILDING FORUM we suggested in our earlier article could include hand-outs to builders on every trade, explaining just what detailed work is required for a job to be considered workmanlike.
Perhaps that document could be made public too… for the sake of our building stock into the future.
VBAG attempting to keep interested building connedsumers well informed.
VBAG ESTIMATES THAT THE COSTS ASSOCIATED WITH THE TRIPARTITE OF CASES - SOFTLEYS VS METRICON HOMES EXCEEDED $3 MILLION ALL UP.
We wonder if the Australian Residential Building Industry sees the opportunity handed to it by the recent Softleys v Metricon Homes dispute… or will there need to be more and more expensive cases.
We now have a precedent which adds fairness to decrepit home claims... compared with the previous Bellgrove v Eldridge precedent (which most people see as what you miss out on with a warranty).
We think that it would be really worth the effort right now…
If builders alter their thinking and realize that it might actually pay to attempt to be reasonable in their disputes with determined home owners whose houses (and dreams) have been shattered… instead of paying a fortune to solicitors, barristers and ‘so-called’ experts ($3 Billion annually in Victoria alone in 2013… FOR EACH SIDE of the home owners vs builders equation… although we only heard of the costs to home owners).
Perhaps now would be a good time for the HIA and MBA to put a halt to shoddy workmanship once and for all… and demand a FORUM for all of their members with a view to ending the almost universal approach of builders bluffing home owners… and giving as little as possible every step of the way.
The builder associations could make a genuine effort to raise the not-so-good reputation of builders to what it was pre-1994 (when privatization and domestic building warranty insurance seemed to give carte-blanche to every Tom, Dick and Harry who wanted to be a builder; and did absolutely nothing to de-register those repeat-offender-builders charged in VCAT with gross workmanship).
Gross workmanship means that the tradesmen are either awful at their jobs… or willing to cheat because they can get their own back for being screwed down in wages (by virtue of the almost non-existent supervision)… or both.
And it means that the Building Supervisors were virtually not supervising their new homes, units and additions projects at all.
Even though the results of past VCAT disputes were only pyrrhic victories by the home owners (because of the abysmal expertise of their building consultants), the expenditure of a total of $6 Billion annually really warranted a total Victorian government audit. This never happened… and we know why…
Business is a protected species… even if playing hard-ball is more costly. The upper hand seems to be more important to businesses than being reasonable
Instead the Victorian Government has decided to get much tougher… creating DBDRV… a head-banging forum similar to VCAT Compulsory Conferences, by far the main aim of which is to EXPEDITE the disputes. Those in charge (as in VCAT) do not have an official definition of defect (and seem not to care); merely attempting to pressure both sides (mainly the owners) into submission.
And so we end up with the accrual of an average (per new home) of $25 000 worth of defects left to cause havoc, because in the expediting process of DBDRV, the few agreed items (only agreed to because the builders can band-aid them cheaply by treating the symptoms), does nothing to remove the actual causes of early failure (the defects). Often, such failures have already been band-aided earlier in the warranty period.
If the aforementioned BUILDER FORUM could convince builders (particularly the volume builders; that paying solicitors, barristers and so-called experts to bluff and fight for them in VCAT, is actually overall considerably more expensive than employing more building supervisors to ensure that the defects are not built into the homes as they build.
The lack of quality supervision caused by over-worked supervisors is by far the main cause of $’000 worth of defects being built into virtually every new home.
The overall result will be far greater confidence in builders… and the quality of homes will improve dramatically… surely being a WIN-WIN situation.
Merely band-aiding symptoms to get over the 6 year warranty period line just has to stop.
VBAG attempting to keep building connedsumers well informed.
WHY IS IT THAT RELEVANT BUILDING SURVEYORS, CERTIFYING BUILDING INSPECTORS, SOIL ENGINEERS, STRUCTURAL ENGINEERS, TRADESMEN, SOLICITORS, BARRISTERS & STAGE CONSTRUCTION BUILDING CONSULTANTS GET OFF SCOT-FREE WHEN A BUILDER LOSES IN VCAT, THE SUPREME COURT AND THE HIGH COURT?
Is it the hidden cronyism between builders and their Structural Engineers, Soil Engineers, Documenters and Relevant Building Surveyors… which cooked up the cheapening measures that started with an inadmissible method being used by a soil engineer to ascertain a lower classification than actually existed on site?
Or is it the deterrent value of Common Law via the Proportionate Liability Act?
Or is it the Australian Government (and therefore the Building Authorities)… hell bent on protecting business at the expense of home owners?
Or is it the likelihood of that builder becoming Scumbag No. 1if he joins parties with all of the other people who were also (at least) partly responsible for the outcome of the unstable waffle-pod based home?
OR COULD IT BE ALL OF THE ABOVE?
We will be exploring the likelihood of negligence of each of the above players who (VBAG says) had a hand in each of the disaster homes built in (at least) the outer northwest and western volcanic plains of Melbourne. (Manufacturers and Marketers for overseas materials may also be part of the equation for flammable cladding... although international relations may be strained by joining them).
We would also like to see proof that Metricon Builders actually paid out of their pocket, for the disastrous result of the Softleys case in VCAT, Supreme Court… and finally the High Court… to allay fears of the conspiracy theory… that the powers-that-be are all in it together at the expense of building consumers…
After all, the powers-that-be and the governments seem to have done absolutely nothing to stem the rapid drop in the quality of new homes built since 1994... And have hidden the results of the puny audits carried out by the building authorities.
Is there any truth in the rumour that Metricon Homes were partly funded to fight the case all the way to the High Court… because their backers thought that the Bellgrove vs Eldridge 1954 High Court precedent would hold firm for the sake of poor quality builders... particularly volume builders.
And the current bluffing / fighting / band-aiding regime used by repeat-offender builders against home owners could continue unabated.
Well it didn’t work…
So from now on, all builders of disastrous homes (not just Metricon Homes), run the high risk of being sued for re-builds of thousands of waffle-pod slab homes just in Victoria.
The new precedent has shifted the goal posts towards fairness to consumers.
THAT WAS JUST NOT SUPPOSED TO HAPPEN.
We wonder if the Metricon solicitors used along the way, will pay the costs for having advised Metricon Homes to fight the Softleys every step of the way? And who were these 'heroes' who were prepared to fight the beleaguered home owners?
VBAG trying to keep interested building connedsumers well informed.
.............COMING SOON --- A COMPLETELY NEW SERIES..............
...................THE HAZE SURROUNDING NEGLIGENCE..............
Negligence is a legal matter... but is a fairly simple concept to grasp when you give it a bit of thought. Basically...
A person is negligent when he/she fails to perform his/her duty of care and is liable for that negligence if detriment is caused by that lack of care..
A registered building practitioner is negligent when he/she fails to perform his/her duty to a minimum standard.
Soon to come will be a series of articles asking why each person or company involved with the process of construction of new homes, units and additions, should not be considered guilty of negligence if they failed in certain of their duties involved with what turned out to be thousands of decrepit waffle-pod slab homes.
The same would equally apply to many other houses such as lemons, partial collapses of portions of houses such as trussed roofs... and for apartment owners... the use of highly flammable cladding which places those apartment owners at risk, contrary to the National Construction Code and basic fire safety standards.
