2 March 2021

Gungahlin Pool developer absolved of liability for any future damage

| Dominic Giannini
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Gungahlin pool

The Gungahlin pool at the Leisure Centre will be closed until at least December for repair works. Photo: Dominic Giannini.

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.

Gungahlin pool.

The Gungahlin pool at the Leisure Centre will be closed until at least December for repair works. Photo: Dominic Giannini.

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.

READ MORE Gungahlin Council President issues ‘please explain’ to Berry over pool woes

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.

Gungahlin pool.

The Gungahlin pool at the Leisure Centre will be closed until at least December for repair works. Photo: Dominic Giannini.

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.

Gungahlin pool.

The Gungahlin pool at the Leisure Centre will be closed until at least December for repair works. Photo: Dominic Giannini.

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Is anyone able to check if this particular developer (or one of it’s other entities) made any donations to any political party?

Yep they ADCO constructions have made donations to political parties.

In the time frame the pool was built they donated $16,500 to the QLD Liberal National Party.

So the pool has been out of action for a year, and they are just concluding the tender process for repairs now, then the repairs will take another year. No wonder people get frustrated with governments.

Life doesn’t work like that.

It’s quite clear that for the last year they have been in dispute with the builder over this issue. And as someone who has been in dispute with a builder one thing you cannot do is fix an issue yourself and then somehow claim costs. You must negotiate to have the issue rectified in the first instance. It takes time and explains the relative silence and secrecy over the whole thing.

Whilst I get accused as a labor stooge from time to time in this case I cannot see what government has done wrong or how they could have handled it any differently within the rule of law we have in this country.

They are as much a victim of this issue as the whole Gungahlin community has been.

The other week you were claiming the silence was due to pending litigation which now as we see (and I said) was false. The silence was always more due to the fact that we’re trying to mininise scrutiny on a stuff up of their own making.

And how do you think the government is a victim? It’s literally their own processes, procurement and certification that has created the problems that we are now forced to pay for.

They clearly did not have the necessary controls in place to deal with the risks involved. And that was fully within their remit to manage.

Actually think you will find this “outcome” actually backs up my comments. Do you think both parties came to a $400,000 agreement without there having been some form of legal litigation process going on in the background? Which would of course be done in relative silence rather than in the public via the media as you think should have been done.

As for the government being a victim they 100% are. This builder has plenty of experience building swimming pools going by their long list of previous projects all presumably without any great issue otherwise they wouldn’t be in business.

What happened here who knows but wouldn’t say that what ever happened is something that could have been foreseen or pickup through more process, certification or inspection. I mean to say it’s happened years after it was finished how do you think it would have been found whilst being built.

Similar to the issue I had with my home and builder. Their poor work was only found later and couldn’t have been foreseen. Going by your view of the world which of course is political driven, I would be the one responsible for the poor workmanship of my builder who was a respected builder. Turns out in my case they got done over by one of their subbies.

There isn’t pending litigation because they’ve settled, not because JC’s claim was “false”.

That’s some mighty revisionist spin you’re attempting there. This outcome is almost completely the opposite of what you said was going to occur.

JC Quotes:

“On top of that there is mostly likely a legal battle being had or brewing with the company that built the place.”

“Also there are few articles that suggest the government is seeking legal advice over payment for repairs. Says to me proceedings won’t be far away.”

“fix the issues and take legal action later”

“And I would have an educated guess that is so to no prejudice any case they have against the builder. Fairly common with legal action and explains why things have taken so long and why information made available to the public is scant.”

And finally:
“In the fullness of time it will all become clear.”

At least you were right about the last bit, in the fullness of time it was clear that we would have to front up the money and there was no legal proceedings coming because as the minister has outlined:

“is that if the suggestion was that we should go into some litigation arrangement with the developer, that it was unlikely to be successful.”

Exactly as I said, if there was a significant chance of successful litigation, the government would have been screaming it from the rooftops. It is the Developer who has settled to make the issue go away and they have clearly come out of this best. A small “Go away” payment and absolved from any future liability and still able to bid for other projects.

Now let’s talk about the actual issues and why they are different from your “house”.

First, to get this out of the way: “Going by your view of the world which of course is political driven”

Yes my view is politically driven. A drive for good governance and in this case for efficient expenditure of public funds. But what my view isn’t, is the slightest bit politically partisan unlike others in here. If the woefully incompetent local Liberals were in charge, my comments would be identical.

Now that’s out of the way.

The government is literally the ones who set the regulatory framework, so are fully in control of the legal requirements for building and certification in the ACT. Any problems in this area are automatically in their direct area of control. So your house problems may be similar in root cause but you however are not in charge of the rules of the game. The government is and should be held accountable for problems in this area.

Secondly, the level of design specification, procurement, contract management, construction controls and commissioning etc. are also fully in their control on this project. They aren’t comparable to your house problems because the government has dedicated professional resources to manage risks in this area and far more market power to wield than you do.

The government writes and signs the contracts that these type of major projects occur under. The idea that they aren’t responsible for the outcomes or are at the whim of dodgy developers and builders is laughable.

Thanks for quoting me, especially this line:

“ On top of that there is mostly likely a legal battle being had or brewing with the company that built the place.”

Now you can nit pick my words as much as you like and draw your own petty point scoring but simple fact is government silence and the length of time it has taken to get to this point is quite clearly because they have been in dispute/taking legal action against the builder. Which is what I was saying weeks ago.

It has turned out different to what I expected that is for sure. I thought it would lead to years of legal proceedings and that the government would win. But sadly I am not a fortune teller.

What I am though is someone who can think and use my brain to see what is going on. Wheras people such as yourself are just after a political hit.

Oh and as for government responsibility you are making the assumption the issue could have been foreseen and mitigated through either design, specification or inspection. That assumption is laughable.

And the comparison to the issue I had in my house is similar. There is no way I could have foreseen the issue that I had and made other choice and that’s where I do have control.

And also unless there was a government inspector in my house every minute a tradie was here there would have been no way to pick up what they did. And that btw is the fools who put my stairs in removed a structural piece of timber to make their install easier. The builder did fix the issue after a brief battle (the issue like the pool started as a cosmetic issue) and the outcome of that was from a legal view point they fixed it as a form of good will rather than any form of liability. But similar to the pool too where the builder is “not liable” but has made a contribution to repairs.

Strange that you think someone holding the government to account can only be doing so for a “political hit”.

Also strange that I would then laud them for policies like their taxation reform and attack the Liberals for their inability to even be remotely effective isn’t it.

Its almost like some people are able to not be partisan hacks.

Secondly, I never disputed that the government would be attempting to negotiate an outcome, that was obvious. But the claims of imminent litigation with the government in a strong position was obviously not true. A political entity like the government with a strong legal position does not act silently on these types of matters.

I also find it amusing that above you were saying that you can’t fix the issue yourself, then claim costs yet last week you were saying that the government’s budget allocation was becaue they were going to do just that.

“the assumption the issue could have been foreseen and mitigated through either design, specification or inspection.”

Actually it is quite possible to do just that. As I said, it is also quite possible to control potential longer term risks through your contracts, with extended defects liabilities, penalty clauses, bonds and the like.

Your opinion that the government couldn’t foresee or control these risks seems to indicate you don’t have a very high opinion of the local government or the public service’s ability to do their jobs.

As for the regulatory framework, you’re thinking too small with just inspectors, the government also controls the standards and qualification requirements in numerous other areas which could help to minimise the risk for these types of projects. There has been a general reduction in capabilities and expertise industry wide as companies try to maximise profits and exploit the more lax regulations that have been creeping in. Whilst some of this does fall outside of the local government’s control, they definitely have areas that they do control and would make a marked difference to projects across the city.

Hardly a surprising result, the government’s relative silence on the issue and the budget allocation made it pretty obvious that successful litigation wasn’t really on the table and who was going to pay for this stuff up. Us.

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