The developer of the problem-plagued Gungahlin pool has been absolved of liability for building defects, including if further damage or evidence is uncovered while the pool is being repaired, after settling the matter with the ACT Government for $400,000.
The settlement also included a disparagement clause.
Sport and Recreation Minister Yvette Berry said she was advised by the Government Solicitor that settling with the developer and tendering out the repairs would be the best course of action.
Costs are expected to exceed $400,000 but Ms Berry would not provide an exact amount until tender processes are concluded over the next few weeks.
“The issues are complex and there was no individual issue that was identified as the cause of the problem. In this case, it is not clear what the actual problem was that you can lay blame at anyone’s feet,” she said.
“The advice that I have, and the reason that we reached a settlement with the developer, is that if the suggestion was that we should go into some litigation arrangement with the developer, that it was unlikely to be successful.
“It would mean that the pool would be closed for several years and cost hundreds and hundreds of thousands of dollars in litigation costs.”
Three experts bought in by the ACT Government assessed a range of contributing factors including the adhesive used, the way tiles were applied, the construction of movement joints in the pool, potential issues about how long the concrete cured under the tiles and the pool’s drainage in March 2020.
It has since been determined that all the tiles, levelling screeds and coatings of the pool will have to be removed, and the repairs will then include the installation of a new “pool tiling system”, which includes waterproofing membrane and grout repairs.
No individual issue, or particular combination, that resulted in the tiles falling off was able to be pinpointed by the experts, Ms Berry said.
The experts were commissioned in June 2020 but the public remained unaware of the timeline for reopening the pool or the negotiations between the government and the developer until this week, causing increasing frustration and anger within the community about a lack of consultation and information.
Withholding information about the negotiations was on the advice of the Government Solicitor so as not to sour talks with the developer and keep them at the table until an agreement was reached, Ms Berry said.
Greens MLA for the Gungahlin-based Yerrabi electorate Andrew Braddock questioned whether developers had the ACT Government “over a barrel” when it came to issues such as this due to the need for the government to have the pool reopened in a timely manner.
“My concern is the Government has cut a deal in the interest of political expediency,” he said.
“I fear the $400,000 won’t come anywhere near covering the full cost of fixing the Gungahlin pool.”
Ms Berry rejected the assertions and said that she was advised by the Government Solicitor that the $400,000 settlement was a “reasonable outcome” due to the likely result of any litigation.
“The government has processes that builders and developers need to go through and they need to be able to prove that they have a good work history, that they meet all the guidelines that the government sees as appropriate before they get a contract,” Ms Berry said on Tuesday morning (2 March) when Mr Braddock’s comments were put to her.
When asked if there would be a review into the government’s procurement processes, she said “it is something the government could consider with this particular project”.
“There is pretty significant oversight of building contracts in the ACT. Building contractors and developers need to go through a process and if they can show that they can do a good job and meet all the requirements during that procurement process then they will get the job,” she said.
Ms Berry also rejected suggestions that the construction company should be blacklisted from future ACT Government contracts.
“They need to have a good work history and that includes industrial relations and good products. I do not think blacklisting any developer or builder or contractor is the way to go,” she said.
“If they have ticked all the boxes in the first instance that is because they have proven that they can develop a good product.
“But if the case is their resume changes and they cannot deliver a good product, then they won’t get the procurement.”
The pool is expected to open by the end of the year and compensation for Gungahlin residents and pool users is being considered by the government.