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Building & Construction Law - Defects in Swimming Pools
The NSW Home Building Act 1989 provides that a swimming pools and spas are included in the definition of “residential building works” if they are to be used in conjunction with a dwelling. If so, then the statutory warranties provided in section 18B of the Act apply to the swimming pool or spa.
We have acted in many cases involving defective swimming pools, for both owners and pool builders. The remedies available to rectify the defects vary from case to case as each matter is determined on its own facts. The dispute has almost invariably come down to a determination on the expert evidence of engineers and builders relied upon by the parties.
When are the defects so serious that a pool or spa should be demolished and reconstructed? In our experience, there need to be serious structural flaws in the construction of the pool or spa that cannot be rectified by reasonable methods other than demolition and reconstruction. Even cracks in the pool shell do not necessarily mean that demolition and reconstruction is the appropriate remedy. We will give a few case examples.
In a case in which we acted for an owner, we were able to obtain orders for damages for the full demolition and reconstruction of the pool. This was only after we had obtained expert evidence from a geotechnical engineer and a structural engineer. In preparing his expert evidence, the structural engineer jack-hammered the site of a long crack in the pool structure which went right through the pool wall and floor and was leaking. This exposed the fact that the pool builder had not used the required spacing of reinforcing steel for the pool structure, a fact that the pool builder had previously denied. The Tribunal ultimately found in favour of the owner and made an order for costs against the builder.
In a case in which we acted for a pool builder, the owner would not agree to settle the case for anything less than a full demolition and reconstruction due to a crack which had appeared in the pool wall. It came out in the evidence that the owner had used separate concrete contractors to build concrete surrounds adjacent to the pool which the concreters had then tied into the pool shell but not allowed for an expansion joint. The crack in the pool shell had occurred in the same area as a crack in the concrete surrounds. The Tribunal held that the crack was caused by others and not the builder. In this case, he Tribunal dismissed the application and made an order for costs against the owner.
In another case in which we also acted for a pool builder, the owner claimed for the full demolition and reconstruction of a pool due to the pool not having the deep point and hydrostatic valve directly in the centre of the pool. Engineering drawings required there to be a screw pier foundation right at that point. Longitudinal drawings also showed the deep point not in the centre of the pool. Therefore, the hydrostatic valve and deep point were not required to be in the centre. The owner was therefore unable to prove their claim.
The above cases illustrate that careful attention needs to be given to the expert and factual evidence in each matter. The NSW Civil & Administrative Tribunal will determine each matter on its own facts and with specific regard to the expert evidence filed by the parties. It is important that such evidence is thorough and properly addresses the issues in a manner that will assist the Tribunal to make a sound determination.
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