RESPONSIBILITY FOR UTILITY INFRASTRUCTURE MAINTENANCE
The person responsible for utility infrastructure – whether it be an air-conditioning unit, electricity wires and cables, smoke alarms, plumbing or stormwater drainage – is one of the most common questions that arise in a community titles scheme.
In order to answer this question, it is first necessary to consider who owns the infrastructure – which is determined by whether the utility infrastructure constitutes common property. If the infrastructure is common property, it is owned by the body corporate.
The Body Corporate and Community Management Act 1997 (Qld) (BCCMA) provides that utility infrastructure is common property, unless it is:
(a) solely related to supplying utility services to a lot; and
(b) within the boundaries of the lot; and
(c) located other than within a boundary structure for the lot.
There are also other exceptions that exclude utility infrastructure from being common property including where:
(a) the Body Corporate is party to an agreement which confirms that ownership does not vest with the Body Corporate; or
(b) the utility infrastructure is a device which measures water reticulation or supply of water for a community titles scheme established after 1 January 2008 and it was installed after 1 January 2008 under a permit issued under the Plumbing and Drainage Act 2018 or in relation to a compliance request made after 31 December 2007 under the repealed Plumbing and Drainage Act 2002 on infrastructure which supplies water to a lot or common property.
If the utility infrastructure is common property, then the Body Corporate has an obligation to attend to maintenance, unless a further exception applies.
One such exception can be found at section 180(4) of the Body Corporate and Community Management (Standard Module) Regulation 2020 which relevantly provides:
the owner of the lot is responsible for maintaining, in good order and condition, utility infrastructure, including utility infrastructure situated on common property to the extent the utility infrastructure –
(i) relates only to supplying utility services to the owner’s lot; and
(ii) is 1 of the following types—
(A) hot-water systems;
(B) washing machines;
(C) clothes dryers;
(D) solar panels;
(E) air-conditioning systems;
(F) television antennae;
(G) another device providing a utility service to a lot.
(Exception).
In Ocean Plaza Apartments [2023] QBCCMCmr 9 (OPA Case) the adjudicator considered the application of the Exception, relevantly providing (our emphasis):
While there is little doubt that grease traps are ‘utility infrastructure’ within the meaning of section 20 of the Act, the question arises whether the grease traps at the scheme constitute a “device” providing a utility service to the applicant’s lot and whether the relevant pipe is ‘associated’ with the grease traps…
…Even if I were to find that the grease traps are a device providing a utility service to the Commercial Lot, I do not believe that the Subject Pipes are “associated” with those devices. The Subject Pipes form part of the Sewerage System which is separate (but connected to) the Trade Waste System. I am of the view that “associated” must mean directly associated with the utility service supplied by the device. The cast iron pipe is not directly associated with the grease trap system because it is downstream from the grease trap system and carries both trade waste and effluent from the sewerage system. Unless the pipes relate only to the device supplying the utility service to the lot, it cannot be properly considered to be “associated” with the device for the purpose of subsection 170(4)(a) of the Accommodation Module.
Ultimately, the Exception will only apply to make a lot owner responsible for:
(a) a device (such as an air-conditioning unit) which solely services its lot in the Scheme; and
(b) cables, wires, pipes, sewers, drains, ducts, plant and equipment which are directly connected to the device and do not relate to other infrastructure services.
In the OPA Case, the cast iron pipes removed both trade waste and effluent from the Scheme and were not directly and solely connected to a device (such as a grease trap) which only serviced a single lot. For this reason, the cast iron pipes were not subject to the Exception and are the maintenance obligation of the body corporate.
Mahoneys’ dedicated body corporate team regularly advise lot owners and bodies corporate on the maintenance obligations of utility infrastructure.
Feel free to contact Mahoneys if you need assistance with determining body corporate maintenance obligations.
Article Contributed by Holly Oddo, Senior Lawyer, Mahoneys Lawyers and Advisors
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Good article. Who is responsible if water proofing in the bathroom of a Unit (or some Units in a complex) fails?
I am also interested in that. What if a leak occurs downstairs of our property and we can only get “contents” insurance because we live in a strata title apartment? Who pays for the repairs to the downstairs?
As the owner of a regularly waterlogged downstairs unit I can tell you my experience. The first time the body corporate’s insurance company paid. But they gave us a cash payout because they said the bathrooms upstairs needed to be waterproofed and as upstairs were not prepared to do that they could not guarantee repairs to my unit. Various other small leaks continued but upstairs always had an excuse such as it didn’t come from the bathrooms we spilt a bucket of water in the bedroom. As they were only small leaks it wasn’t worth the insurance excess. Then another big flood happened clearly from their ensuite so they stripped it out the very next day and when the insurance company came to investigate they denied the claim as the PDS basically says you can’t go interfering with the site before they can investigate. The insurance company were good enough to send in the driers to dry out my unit but that is all. Apparently your neighbours can do something against the PDS and your unit suffers the consequences of not being covered. That was two years ago my unit has no ceiling anywhere anymore and still mould. Upstairs are liable but they are refusing to pay and have their unit on the market. If the body corporate fix it they will have no legal recourse to recover the costs from upstairs and the body corporate is not liable anyway. If I want to recover the cost I must go through the BCCM which takes a year or two and if they sell in that time it is going to be harder to get an order for them to pay. The order is generally against the owner of the lot not the individual. It is the adjudicators discretion to make the current owner personally liable. Anyway if I ever get an order against them I then have to go to the magistrates court to get payment. In the meantime upstairs are lobbying the body corporate to pay for the repairs and some kind people think that is the way to go, just get my place fixed then try and recover it from upstairs but they won’t be able to. I am the only one with a legal right to do that. So as an upstairs owner unless you have someone as determined as me living underneath you can do what ever you like and never really be held accountable and your downstairs neighbours will end up having to live with mould and water spraying through fans and lights and tiggering the circuit breaker and eventually abandoning their unit. Of course if you are a decent person you will concentrate on making sure it never happens again rather than making sure you do not have to pay.
who is responsible for an expansion of a utility on common property for the changed needs of one lot , or because new lots are created .
in our layered scheme pbc common property is to be made available for more mailboxes – to service future lots in one of the sbcs. Is cost of purchase and installation of the mailboxes an obligation of the developer/subdividing lot owner or of the principal body corporate ?
Similarly new and expected commercial waste producing lots require extra space for their bin collection. PBC common property can be made available, but are other costs for the developer or lot owner to bear ?