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BUILDING & CONSTRUCTION NEWS ALERT: DEVELOPMENTS IN THE INTERPRETATION OF “BUILDING WORK” UNDER THE QBSA ACT

News Alert - 17 December 2013

Ooralea Developments Pty Ltd v Civil Constructors (Aust) Pty Ltd & Anor [2013] QSC 254 (Ooralea v Civil)

In September this year, Justice Daubney of the Queensland Supreme Court ruled that a contractor who performed road works was not entitled to be paid for the work as it did not hold a licence under the Queensland Building Services Authority Act 1991 (QBSA Act) [1].  This is a significant shift in what constitutes building work under this Act, and as such contractors need to be aware of the change.

 

Background

Under Section 42(3) of the QBSA Act, a person who carries out "building work" without an appropriate licence is not entitled to payment for the work.  Accordingly, it is necessary for contractors to examine whether the work they are performing falls within the scope of the QBSA Act and requires a licence.

In Ooralea v Civil, the contractor was engaged to supply, "all labour, materials and plant to construct... earthworks, roadworks, stormwater drainage, sewer and water reticulation..." 

On review of an adjudication under the Building and Construction Industry Payments Act 2004 (BCIPA), Justice Daubney held that the road works were “building works” under the QBSA Act, and thus required a licence.

 

Defining “building work”

At the time of Justice Daubney’s decision, the following works were excluded from the definition of “building work” under the Queensland Building Services Authority Regulation 2003 (QBSA Regulation) [2]:

  • Construction of roads on land which has been dedicated, notified or declared to be a road for public use;
  • Construction of roads on land which is taken under an Act, for the purpose of a road for public use;
  • Work consisting of earthmoving and excavating; and
  • Laying of asphalt or bitumen.

 

Interpretation of the QBSA Act

In Justice Daubney’s view, as the road in question had not been dedicated, notified or declared, it was not excluded under the QBSA Regulation, and thus was “building work” which required a licence under the QBSA Act.  The decision has been appealed.

The difficulties which can be faced by contractors in assessing whether a licence is required under the QBSA Act are evident given that Justice Daubney reached his decision despite the fact that:

  • earthmoving, excavation, laying of asphalt and bitumen were excluded under the QBSA Regulation from the definition of “building work”; and
  • there was no class of licence under the QBSA Regulation which contained within its scope road works.

The decision highlights that determining what constitutes building work under the QBSA Act is not necessarily a straightforward process.  Contractors should consider carefully whether the work they are performing falls within the scope of the QBSA Act, or risk being denied payment for their work.

 

UPDATE

Since the decision in Ooralea v Civil, the QBSA Regulation has been amended to clarify the exclusion from the definition of “building work” of construction, maintenance and repair of roads. 

Under the amended legislation, the definition of a “road” has been extended to include an area of land developed, or to be developed, for the public use of driving or riding of motor vehicles.  New exemptions have also been included, relating to work for a public utility easement and work on bikeways and footpaths.

The extended definition of works which are excluded under the QBSA Regulation appears to address the issues encountered in Ooralea v Civil, however it remains to be seen how this amended legislation will be interpreted by the Courts.

The amendments to the QBSA Regulation commenced on 1 December 2013 and as they are not retrospective, they will not apply to building work carried out prior to that date.

 

 

 

 

Tony Mylne
Partner
Phone: +61 7 3004 3545
Tony_Mylne@tresscox.com.au

 

Jasmine Blight - Solicitor - TressCox Lawyers

 

 

 

Jasmine Blight
Solicitor
Phone: +61 7 3004 3511
Jasmine_Blight@tresscox.com.au

 

 

[1] Now the Queensland Building and Construction Commission Act 1991. For the purposes of this article, the legislation will be referred to as the QBSA Act.

[2] Now the Queensland Building and Construction Commission Regulation 2003. For the purposes of this article, the legislation will be referred to as the QBSA Regulation.


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