The applicant in these proceedings owned and resided in unit 13 of Units Plan 706 which is located on the side of a hill and consists of 13 townhouses each with its own driveway and garage. As Unit 13 is situated towards the bottom of that hill, when it rains heavily water runs down the central shared driveway onto the individual driveway of the unit and, despite a sump drain located at the front of Unit 13, pools and enters the Unit 13 garage damaging the contents inside. The Tribunal was satisfied the sump drain in front of unit 13 is lot property. The sump outflow connected to a single 90mm PVC storm water pipe which was laid on common property and connected to the main drain. After considering evidence from both sides, the Tribunal found that the dominant reason for the flooding was design factors of the PVC pipes and the sump drain.
The applicant filed an application seeking orders that the owners corporation undertake work in relation to the sump drain on unit 13 and the associated PVC pipes. The Tribunal was of the view that although the sump drain is part of unit 13 and owned by the applicant, because it is a utility conduit for the removal of stormwater from the common property, section 24(1)(e) of the UTMA placed an obligation on the owners corporation to maintain it. This sub section applies because upon registration of the units plan, sections 33 to 35 of the Unit Titles Act 2001 resulted in the owners corporation being given easement rights against the owner of unit 13 in relation to the unit 13 sump drain and the owner of unit 13 was given easement rights against the owners corporation in relation to the PVC pipe stormwater system.
The owners corporation then submitted that a distinction should be drawn between ‘maintaining’ the sump drain and PVC pipes and ‘improving’ them. The Tribunal held that the maintenance obligation under section 24 does not require an owners corporation to ensure the overall adequacy of a utility service or conduit but only to ensure that the sump drain and pipes remain in good repair and working order. Therefore, although the size and design of the sump drain is inadequate for its task and the diameter of the PVC pipes is inadequate for the storm water system to work effectively, no replacement or redesign of these can be ordered as they are “in good repair and working order”. However, the Tribunal did accept that the observed ‘backfall’ in the PVC pipes (which slowed down the speed of water flow) and possible damage to the pipes due to tree root incursion amounted to a lack of good repair and working order. The Tribunal made orders that the respondent re-lay the 90mm PVC pipes from the Unit 13 sump drain to the main drain.