Monthly Archives: January 2011

Common pipelines; easements, ownership and liability #3

Common walls and common pipes

One recurring topic of 2010 is the Ownership and liability of common water, sewer and gas pipes.
When we send out an emergency response team to a ruptured gas or water pipeline or an overflowing sewer, the first thing our team thinks about is rescuing the property under threat.
Often, it is after the emergency, that ownership and liability of the problem are hotly debated.
This series of 3 blog posts is aimed at clarifying some of that debate.

Our friends at the Law Reform Commission have helped to clarify this interesting subject and in part it reads:

LIABILITY FOR COSTS

Role of the Water Board

An important and related issue that was raised in DP 22, in respect of utility services, is establishing liability for the repair and maintenance costs of common service pipes for individual users. The problem only really exists in respect of joint sewer services, because the Water Board will absorb the costs of repair and maintenance of water services (joint or single) within the areas of its operation. In those cases where the Board does not assume responsibility, it can still do the repair work itself and then issue notices for payment to the users of the service. The Water Board Act 1987 (NSW) does not contain any guidelines in respect of apportioning the costs of the work carried out.

The Water Board does not assume the same level of responsibility in respect of sewage services. A liability policy similar to the water supply policy (as discussed above) was considered for sewage services, but was rejected as too expensive. Where the Water Board is aware that work needs to be done on a joint sewer service, the Board will issue a defect notice requiring the users to repair the service within a certain period of time. Sometimes repair is ordered to take place within 24 hours, if the damaged service is deemed to be a health risk. It may also be the case that the users of that service realise that the service is in need of repair and attend to the repairs prior to receiving a notice from the Board.

Existing guidelines for apportioning costs

There are no guidelines to assist the owners in dividing the cost of repairs, although DP 22 argued that Regulation 9 of the Plumbing and Drainage Regulation (September 1989) could be interpreted as making owners jointly responsible for the maintenance of their water service pipe, sewer or storm water drain.8 Some users may argue that they were not responsible for any damage to the service and thus refuse to pay anything; other users may argue that the cost of repair should be divided equally, regardless of which users were directly affected, on the basis that the service is jointly owned; and others may consider the amount charged to be excessive and only wish to pay an amount they consider appropriate. Although a recommended rate may be obtained from the Master Plumbers Association, this rate is not a standard or enforceable rate and the final figure charged may be higher or lower depending on the circumstances.

In practice, one user (usually the person most affected by overflow from the blockage) often pays for the repairs and is then forced to seek contribution from the other users, and when payment is not forthcoming, he or she may be forced to litigate for the recovery of the money. Whilst a user may wish to claim equally against each of the other users of the service, it is difficult to prove what their contribution should be. A plumber may be retained to give expert advice about who or what caused the damage to the service. This lack of legislative direction stands in sharp contrast to the specific contributions that unit owners of a Strata Titles plan are required to provide by way of levy where maintenance and repair of the common property is necessary.

A plumbing emergency and ducks we’ve rescued

We were called out to this plumbing emergency that brought an unexpected surprise.

Our client had a blocked drain and when we had just about completed that repair, cutting tree roots from her sewer pipes, she called out because she needed a hand in her back yard.

A mother duck that had been nesting in her dense rear garden had chosen today to take her babies for their first swimming lesson. The ducklings took to the water like ….. well, ducks to water. The only problem was that the water level in the pool was a little low, they couldn’t get out of the pool and they were getting very tired.

Our attempts to rescue them by hand and with the pool scoop, brought a tirade of squawking and flapping of wings from the mother duck. She didn’t want us anywhere near her babies! We found a plank in the back shed which we put in the pool and then draped an old towel along the length of the plank, then stood back.

When mother duck settled down she could see we were trying to help, she led the baby ducklings up the plank and after checking they were all out, she herded them back to the nest in the dense undergrowth.
She gave us another flurry of feathers when we tried to check on the babies.

Every day brings another adventure!

mrs-rogan-ducks-aug034

 

Common pipelines; easements, ownership and liability #2

Common walls and common pipes

One recurring topic of 2010 is the Ownership and liability of common water, sewer and gas pipes.
When we send out an emergency response team to a ruptured gas or water pipeline or an overflowing sewer, the first thing our team thinks about is rescuing the property under threat.
Often, it is after the emergency that ownership and liability of the problem are hotly debated.
This series of 3 blog posts is aimed at clarifying some of that debate.

Our friends at the Law Reform Commission have helped to clarify this interesting subject and in part it reads:

A user of a service may attempt to disconnect the joint service and force other users of the service to bear the cost of a direct connection to the main service. Such action will however, be illegal unless conducted in accordance with the Water Board Act 1987 (Water Board (Plumbing and Drainage ) Regulation 1989),2 or a court order declaring that the common user of the service has a right to discontinue the service.

The creation of permanent rights of access is seen as a means of avoiding problems of access in respect of utility services, and applications have been made to the courts over the years to have access to and over utilities such as water pipes and sewers recognised as easements of necessity. The courts have, however, gone to considerable lengths to hold that although such an easement may be considered by a landowner to be essential for the reasonable enjoyment of property, it is not an easement of necessity, because at law, easements over such services are not considered necessary to the land itself.

Although DP 22 raised the possibility of statutory recognition of these “trespassing” services as a means of rectifying the problem, the Board of Surveyors pointed out in their submission that few authorities know with any exactitude the location of their service lines. Consequently, the Board of Surveyors opposes the creation of statutory easements over them until such time as they are properly defined on title. The Commission agrees that such a step may be expensive and premature at this stage. It would seem desirable however, that steps are taken in the long term by the relevant authorities to locate such services, properly record them and establish the appropriate rights over them.

Don’t play Noughts and Crosses when you have sewer problems

Take the guesswork out of excavation!
Today’s post comes courtesy of Dr Marc Dussault, The Exponential Growth Strategist. At his recent Exponential Business Building Bootcamp, he showed a series of “impossible pictures” from Swedish Artist Erik Johansson. This photo was of particular interest. This is what we want to avoid with the use of Vaporooter when tree roots get into and block your pipes and drains.