Common pipelines; easements, ownership and liability #3

One recurring topic of 2023 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 and to read #1 click here and to read #2 click here

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

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.