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.

For further information please contact:

Helen Kowal, Partner
Phone: +61 2 9777 8321

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.