Leaky building claims in Australia and limitations with the moisture management performance clauses in the Building Code of Australia
By Kim Lovegrove RML, FAIB, Senior Consultant and Mediator, Lovegrove & Cotton – Construction and Planning Lawyers
There is a proliferation of waterproofing claims and litigation in a number of Australian jurisdictions. Water damage in apartment buildings is costing many unit holders and body corporates an absolute fortune to fix. Further water moisture and penetration poses health risks as residents are exposed to fungal spores, which can cause asthma and respiratory related ailments.
A factor that may not be helping is the latitude that is afforded by the water egress provisions of the Building Code of Australia. Clause FP1.3 states:
A drainage system for the disposal of surface water must-
• Convey surface water to an appropriate outfall and
• Avoid the entry of water into a building
• And avoid damaging the building
A classic performance clause, it states what the outcome must be, but fails to stipulate what must be done to achieve the outcome, the wording is problematic.
The problem is too many buildings are being designed in circumstances where the performance objective is not being achieved because water is entering buildings from balconies and needless to say damaging buildings.
Balconies are being constructed with no “outfall”, absent any fall, the balconies are perfectly horizontal with the internal floors of the apartments. The problem is further compounded by the fact that short of certifiers undertaking onerous initiatives to carry out balcony water penetration tests (there is no legal requirement to that effect) for every apartment balcony prior to issuing an occupancy permit for that apartment, one would have little inkling in regards to the potential for water penetration.
No water flow balcony “down fall” is the downfall of many a building
Hence the proliferation of waterproofing disputes. We have had conduct of major water leaking litigation and can vouch for the fact that this type of litigation is on the rise. Our body corporate litigation expert and Partner Justin Cotton can recount scores of stalactites in basements, water damage rotting carpets, respiratory ailments emanating from water damage and mould and mildew.
The biggest problem with this BCA provision is that absent a prescriptive provision that makes it obligatory for there to be a balcony “lip”, step or discernible descending outflow gradient there is a “wing and a prayer” approach”.
There would be mileage in the code being amended to change the emphasis from pure performance to a more prescriptive tenor. Because the latitude afforded in the current wording is not ideally suited to the vagaries of water penetration. It is an area that requires codificafion “belts and braces” for at the moment we are definitely witnessing “lift off” and the last thing the building industry needs is a leaky building syndrome reminiscent of that which has blighted New Zealand over the last decade. Let us not forget BCA 1996 was modeled on the New Zealand Building Code.
