Here’s What To Do If You Suspect This Is The Case.
Some of my clients are presenting me with ‘defective building’ dispute cases, which at first glance are based on allegations of slab movement. This begs the question, what is the cause of the slab movement? Is it the ground condition, is it damaged plumbing works under the slab and increasingly, is it caused by nearby trees (and/or landscaping)?
Many builders often refer their Owners to information guides such as the VBA ‘Minimising foundation movement and damage to your house’[i] or in Queensland the QBCC’s ‘A guide to preventing structural damage’[ii] (and many similar publications in other States and Territories). However, it is also important to remember that the issue of protecting your foundation begins at design stage.
A preliminary step undertaken by architects or builders (if design & construct contract) is to carry out site investigation works, commonly referred to as a ‘soil and survey’ investigation. This is designed to identify the soil conditions and any hinderance to the site which may affect the building works. Any engineering design for the foundation works will be based on these investigations. Commonly, the engineering design (and the architectural design) contains disclaimers about risk (for example, nearby tree, Owner/Builder to investigate the need for a tree root barrier). However, are disclaimers enough to absolve your liability?
Some issues each party should consider may include:
Some issues each party should consider may include:
It is important that they consider the existing site to ascertain what landscaping already exists.
It is not enough for an engineer to simply put a note on a plan that identifies to the builder/owner that they should make further enquiries about trees. Engineers are engaged because of their expertise, therefore if a tree already exists at the time of the design preparation works, the engineer should prepare a design that is adequate and compliant to cater for those existing trees and more importantly the potential growth of those existing trees at the preliminary design stage.
If there are no existing trees/landscaping, the engineer should have regard to any development plans which may propose trees to be planted as part of a building contract or the development works. Obviously, if there are development plans or no existing trees then the engineer cannot be expected to foresee landscaping that has not yet been designed.
If the developer as part of the head contract works, or as part of the tender invitation, is preparing a landscaping plan, then it is critical that details of that landscaping plan (even if only preliminary) should be provided to all contractors (builders, architects, engineers, etc) prior to any tender process to ensure all relevant parties have all the essential information. Whilst it is important that estate or development projects look appealing to potential purchasers, it is also critical that all elements of the development are compliant and fit for purpose.
Like an engineer, the builder must insure they are aware of any existing landscaping which is in close proximity to the property that they are to construct. Whilst a builder may not be able to ascertain if the engineering design is adequate for the landscaping and all trees, the builder should at a minimum be reviewing the plans and carryout out a physical inspection of the site to ask the necessary questions. That is to say, if there is an existing tree on the nature strip or on an adjoining property in close proximity to the building site, then the builder, acting reasonably, should make further enquiries with the engineer/architect whether the design caters for the current landscaping and also the future growth of that landscaping.
Some builders rely on the argument that cracking, which is not attributable to the workmanship of the builder (but rather caused by trees being planted too close or Owner’s failing to install a concrete parameter around the building), is not a defect. This is true, on the basis that the builder had completed adequate due diligence at the design stage (or if a construct only, upon reviewing the building contract).
If an owner has a landscape design already prepared or alternatively they are aware of the type of landscaping they want on their premises, then they should disclose that design to the architect, engineer and/or builder so they can prepare compliant designs and advise all the required costs. Further, upon taking possession of the site, the Owners should take care to ensure the landscaping complies with the guides provided by builders to protect their foundations.
It is also important to remember some important factors when looking at landscaping:
- You should consider all three elements of a tree: The crown (the span of the leaves); the trunk; and the root system. All three elements have the potential to damage a building in near proximity for example, we have probably all seen examples of a tree root system damaging a slab foundation due to the roots absorbing the moisture from the soil which then alters the soil conditions for the slab. But, what about the leaves/branches of trees causing damage to roofs or leaves blocking gutters?
- If you are aware of a nearby tree, then an arborist should be engaged to survey all existing vegetation on a site to provide recommendations for appropriate management;
- As stated above, a site survey prior to design should include all existing trees with an overlay of the development plans with the site survey, and should include all service easements to identify any hinderances to the property upfront;
- The on-site personnel, being construction personnel (including supervisors, contractors, etc) must be aware of landscaping (whether existing or planned) and ensure that any notes on plans or any arborist recommendations are complied with.
- Building contracts should contain requirements about trees and protect existing trees. Contracts with the Owners should also contain conditions about the management of trees, and the basis of the design (if preliminary landscaping plans were provided, or if no plans were provided then the Owner’s obligations to protect the foundations when they complete the landscaping).
One final consideration – timing to seek contribution from third parties
Just as a final point of consideration, this type of dispute can be very costly both in time and money if there are multiple parties involved. For example if the builder, engineer, Owner and developer all played a part in the design/construction failures. The recent decision at the end of last year in Smith v Henley Arch Pty Ltd (Building and Property)  VCAT 2024, Deputy President C Aird, provided a timely reminder that:
- In this case the builder applied to join the Engineer (who designed the footing system) and the arborist (engaged to provide arborist advisory services prior to construction, which included whether the concrete slab might be influenced by the presence of trees over time) for the purposes of a proportionate liability defence under Part IVAA of the Wrongs Act 1958 and a claim for contribution under s23B of the Wrongs
- VCAT has the power to order the joinder of parties pursuant to section 60 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). The powers of the Tribunal under this section are very wide.
- The Engineer and the Arborist opposed the application for joinder contending that it was a ‘building action’ which has a 10-year limitation period to bring a building action (under s134 of the Building Act 1993), and the builder’s attempt to join the engineer was outside that 10-year period.
- The Builder contended that a s23B claim is not an action for damages and therefore is not a ‘building action’ pursuant to s129 of the Building Act.
- In this case, it was held that the ‘building action’ is the Owner’s claim against the Builder. Whereas the claim by the Builder against the engineer and the arborist is, in effect a conditional claim, which will only succeed if it is found liable to owner and therefore not, of itself, an action for damages or loss or damage.
- Accordingly, pursuant to s24(4)(4), the limitation period of 12 months from the date on which the application is served applied – namely, the Builder has 12 months to make a claim for contribution against a third party and seek to join them to the proceedings. It is irrelevant if this 12 months is outside the 10-year limitation period provided under the Building Act, as a contribution claim is not a ‘building action’.
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