NSW Con­struc­tion Indus­try — an expert’s per­spec­tive (part 5 of 6)

Inter­view with Mark Kavanagh — Build­ing Consultant

Over the com­ing weeks, I will be releas­ing a six part arti­cle series. The arti­cles will doc­u­ment my dis­cus­sions with build­ing con­sul­tants who are in the know when it comes to the cur­rent state of the NSW con­struc­tion indus­try and the high per­cent­age of prop­er­ties which are found to con­tain build­ing defects aris­ing from orig­i­nal con­struc­tion works. 

These experts will give their per­spec­tive on the cur­rent sit­u­a­tion, the fail­ings, the pos­i­tives and their views as to what can be done to imple­ment change and help builders, devel­op­ers and con­sumers alike.

Present­ly, in place is the Nation­al Con­struc­tion Code (NCC), imple­ment­ed with a goal of achiev­ing a ​‘nation­al­ly con­sis­tent, min­i­mum nec­es­sary stan­dard of rel­e­vant safe­ty (includ­ing struc­tur­al safe­ty and safe­ty from fire), health, ameni­ty and sus­tain­abil­i­ty objec­tives efficiently’. 

There is appar­ent work to be done to achieve the goals of the NCC.


Mark Kavanagh — Build­ing Consultant

What is your area of expertise? 

Gen­er­al Build­ing Consultant

How long have you been involved in the con­struc­tion industry? 

35 years plus

How long have you been pro­vid­ing expert wit­ness reports in build­ing claims?

Near­ly 25 years

With the NCC in place, in your opin­ion, why do you think there is still such a high rate of defec­tive work aris­ing out of res­i­den­tial con­struc­tion in NSW?

A lack of super­vi­sion. A lot of trades­men are untrained or have lit­tle or inad­e­quate train­ing. That, com­bined with the super­vi­sion fac­tor, I believe is caus­ing a lot of the problems. 

Anoth­er fac­tor is that builders and devel­op­ers are also try­ing to push things through as fast as they can. In the past, if a mis­take was made, it would be addressed. Now with the lack of train­ing and or super­vi­sion, the mis­takes are either not picked up or in some cas­es appear to have been ignored.

The pres­sure imposed by Devel­op­ers and Builders to keep to a tight sched­ule, is a big issue. In the past, nor­mal­ly a con­crete pour would still be can­celled in the rain. How­ev­er, now it can be pour­ing with rain but the con­crete pour will still go ahead, using pumps to remove water from the form­work, accel­er­a­tors in the con­crete to make it set quick­er and pos­si­bly grind the sur­face of the slab at a lat­er date, all in order to keep the project mov­ing. Con­trac­tors don’t stop for any­thing, work has to con­tin­ue at all costs.

Anoth­er issue is that builders do not have access to the Aus­tralian Stan­dards as part of their licenc­ing. The larg­er builders may have the com­plete set, but to buy a sin­gle Aus­tralian Stan­dard is $200 +. This cost is exces­sive and as such lots of small­er builders and sub-con­trac­tors do not have access to these doc­u­ments to ensure that what works they are per­form­ing is in full compliance. 

It is my opin­ion that as part of your builders’ licence, you should have free access to the NCC and all ref­er­enced standards.

Were any con­cerns addressed in the recent changes to the NCC released in May 2019?

I don’t believe that the NCC itself is the prob­lem, how­ev­er a lot of the time it is dif­fi­cult to under­stand and find the rel­e­vant infor­ma­tion. It would ben­e­fi­cial if it was writ­ten by those who have hands on expe­ri­ence and in sim­ple language.

I still con­sid­er the prob­lems with­in the indus­try comes down to the con­trac­tors and the lack of supervision/​training and the pres­sures placed on them to get the job fin­ished. You can have the best builder in the world, but if you don’t have a suit­ably qual­i­fied and expe­ri­enced per­son super­vis­ing trained con­trac­tors, the works will not be com­plet­ed to a qual­i­ty stan­dard and in accor­dance with the NCC.

What are your con­cerns with respect to the increase in defects?

I hate to say, I can’t real­ly see any change in the indus­try hap­pen­ing fast. Defects will still be present, and peo­ple will still buy units. The lat­est media hype over Mas­cot and Opal will be on the front page for a peri­od of time but then peo­ple will forget.

The qual­i­ty of build­ings in gen­er­al with­in the stra­ta area have in my opin­ion got bet­ter over the years. How­ev­er, there are still some devel­op­ments being built that you would not touch. 

There would appear to be some ​‘media beat ups’ regard­ing the Mas­cot and Opal issues but there needs to be some form of release from a reg­u­la­to­ry author­i­ty advis­ing all of the true facts.

It seems strange that occu­pants can be sub­ject to an ordered evac­u­a­tion on safe­ty grounds. How­ev­er, the occu­pants are lat­er allowed to re-enter the build­ings (in com­pa­ny with appoint­ed guards) to remove their belong­ings. The build­ing is either in dan­ger of struc­tur­al fail­ure or not.

In real­i­ty, if the build­ings had suf­fered from such a struc­tur­al fail­ure such that there was the pos­si­bil­i­ty of full and or par­tial col­lapse (which should then require peo­ple to be evac­u­at­ed), sure­ly the exclu­sion zone should be much greater in size and not just tem­po­rary fenc­ing to the perimeter.

The cur­rent sys­tem of Pri­vate Cer­ti­fiers, I con­sid­er is inap­pro­pri­ate. How is it a builder/​developer can engage/​pay for an expert to check on the works and pro­vide a final sign off on the build­ing. As a build­ing con­sul­tant, I am iden­ti­fy­ing many basic defects that the Cer­ti­fi­er should have picked up and had rec­ti­fied pri­or to pro­vid­ing any sign off. 

What needs to be done to fix the industry?

That is a hard one. The only way you are going to see a change is to make the builders and devel­op­ers more eas­i­ly account­able for their actions which would hope­ful­ly then fil­ter down to the super­vi­so­ry staff and sub-con­trac­tors with bet­ter training. 

I believe the Depart­ment of Fair Trad­ing should be giv­en more pow­ers to inves­ti­gate build­ing dis­putes and take action against builders and sub-con­trac­tors where they fail to address proven defects

Fur­ther, home own­ers war­ran­ty insur­ance is a mas­sive prob­lem. The worst thing the Gov­ern­ment ever did was to cut out home own­ers war­ran­ty insur­ance for stra­ta build­ings 4 storeys and over. 

What is the dif­fer­ence for a per­son buy­ing a unit in a 3 storey build­ing as opposed to a 25 storey build­ing – why should the ones buy­ing a unit in a high rise build­ing not be protected?

The insur­ance sys­tem and the law are fail­ing the con­sumers – there is no pro­tec­tion. As an insid­er, the old sys­tem used to be a rea­son­able scheme which worked well – fair trad­ing asses­sors used to actu­al­ly be able to do some­thing but now that is a step that is a waste of time before going to NCAT or the Courts –there is no reg­u­la­to­ry control.

What are your thoughts on edu­ca­tion and cours­es avail­able at the moment?

I am not sure what is out there right now. What is evi­dent, is that there are time con­straints for super­vi­sors to actu­al­ly learn. These super­vi­sors are on site all day, man­ag­ing mul­ti­ple sites day after day and they just don’t have the time to edu­cate themselves. 

Every­thing is dri­ven by the dol­lar, get­ting the job done faster.

How cre­ative can you be in your area of exper­tise with rec­ti­fi­ca­tion scopes? Is it pos­si­ble to come up with a unique solu­tion that will solve the prob­lem, reduce poten­tial rec­ti­fi­ca­tion costs for a builder and achieve the results the con­sumer is look­ing for?

It depends on the defect. When we are work­ing for a stra­ta scheme with no fund­ing, you are always con­scious of cost. Where you have a bal­cony leak­ing down­stairs and you can rea­son­ably pin­point the prob­lem, you can pro­vide a localised option. How­ev­er, this localised repair may not be guar­an­teed and car­ry­ing out a sim­i­lar repair on high­er bal­conies may be too risky, with units below suf­fer­ing ongo­ing water pen­e­tra­tion if the localised repair fails. 

Or, we do it the prop­er way and do a com­plete fix which is more cost­ly. You always see if there is an alter­na­tive, but if you can’t guar­an­tee it, you have to give the client the choice of two options – less­er job, cheap­er to fix but no guar­an­tees; or spend the mon­ey required and do it prop­er­ly the first time. 

Many own­ers cor­po­ra­tion do not have any rights to claim against builders and devel­op­ers as they are already out of their war­ran­ty peri­ods, or the builder is not around and they have no insur­ance. Some Own­ers Cor­po­ra­tions sim­ply can­not afford to car­ry out reme­di­al repairs using the cor­rect approach and will either try to do the works using a non-rec­om­mend­ed option or not doing the works at all.

We often find when re-vest­ing a devel­op­ment for say a Cap­i­tal Works Fund report, that items iden­ti­fied in our report of 5 years ear­li­er are still evi­dent due to the lack of funds. This often results in the orig­i­nal issue wors­en­ing and there­fore increas­ing the rec­ti­fi­ca­tion costs 

Out of inter­est, what is the worst or most unusu­al defect you have seen in your time report­ing as an expert on build­ing defects?

One of the strangest things I have seen was the con­nec­tion of hot water to a toi­let. When the own­ers flushed, the cis­tern was filled with hot water. Mul­ti­ple flushing’s had steam ris­ing from the toi­let bowl. There is noth­ing in the Aus­tralian Stan­dards which says you can’t have hot water con­nect­ed to the toi­let – com­mon sense but noth­ing in writing!

Anoth­er exam­ple was in order for one occu­pant to turn on lights in the bath­room, she had to turn on one of the out­side lights first. 

The Court sys­tem, com­ments about the process…

Process is dic­tat­ed by the leg­is­la­tion, we have to abide by and live with it. 

It would be nice if things were expe­dit­ed. It doesn’t make sense to me why there is no leg­isla­tive require­ment for experts on both sides of a dis­pute to meet very ear­ly in the process and pro­duce a joint report/​scope.

This would allow mat­ters to reach an end/​settlement much ear­li­er than what is being achieved present­ly. I have per­son­al­ly been involved with a num­ber of claims where they have been in the court sys­tem for in excess of three years

Fur­ther, the time­frames of com­ply­ing with Court Orders are at many times unachiev­able for experts when they are ordered to pro­vide reports. I con­sid­er if there was a require­ment for experts to meet at the out­set, this would save a lot of time and money.