O’Rourke v Beechwood Homes (NSW) Pty Ltd [2022] NSWCATCD 116

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: O'Rourke v Beechwood Homes (NSW) Pty Ltd [2022] NSWCATCD 116 Hearing dates: 8 April 2022 Date of orders: 07 July 2022 Decision date: 07 July 2022 Jurisdiction: Consumer and Commercial Division Before: D Robertson, Senior Member Decision: 1. Within four months of the date of publication of this decision, the respondent, Beechwood Homes (NSW) Pty Ltd, is to carry out the following works at xx Glenbrook Road, Glenbrook, in a proper and workmanlike manner: (1) Reconstruct the absorption trench from the base up, in accordance with the plans provided by Quantum Engineers, to restore its hydraulic capacity to infiltrate stormwater. This includes the gravel bed on which the trench is laid. The arches can be reused if practicable, the geofabric needs to be replaced and backfill material may be reused provided that it contains only coarse filter sand free of silts and fine particles as specified in the approved stamped design drawings. The reconstruction must include the geofabric blanket with 4 removable half brick keepers per pit and maximesh placed across the entry to the arches; (2) Reinstate the capacity of the weep holes of the stormwater pit by cleaning them out with an appropriate tool (such as a hand auger) to restore their capacity and replace any lost gravel below. If this should prove impractical the pit will need to be reconstructed to restore the weep hole capacity; (3) Provide a flood bund along the southern property boundary from the edge of the neighbouring house to the road reserve boundary; (4) Construct a defined overland flow path in the rear of the yard with sufficient capacity to convey peak 1 in 100 year storm flows from the upstream catchment to ensure this is directed away from the house and around the stormwater pit to prevent the stormwater pit from being deluged by overland flows; (5) Refine the temporary overflow strip drain so that overflows from the stormwater pit are dispersed across a wide area so they do not result in water ponding against the fence; and (6) Construct a grated drain across the driveway at the front of the house to further disperse overland flows of stormwater before they can enter the garage. 2. Pursuant to Schedule 4 Clause 8 of the Civil and Administrative Tribunal Act, 2013 (NSW) the applicant has leave to renew the proceedings if these orders are not complied with by the respondent. Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Statutory warranties – Warranty that works will be carried out with due care and skill – Whether approval of plans by Council absolves builder from responsibility to ensure adequate provision is made for the dispersal of stormwater Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Cases Cited: Bellgrove v Eldridge (1954) 90 CLR 613 Texts Cited: Nil Category: Principal judgment Parties: Kevin O'Rourke (Applicant) Beechwood Homes (NSW) Pty Ltd (Respondent) Representation: Nil File Number(s): HB 21/30597 Publication restriction: Nil