GENERAL
3.1 In most cases, persons using utility services that pass through several properties benefit by the existence of an easement of access over that service, entitling the user to enter the property on which the service is located in order to attend to the service.1 However, in the absence of such an easement, the user of the service is not allowed to interfere with the service, even where that interference is for the purpose of maintenance, repair, or relocation of the service.
3.2 One explanation of why there may not be an easement is that the properties through which the service runs were once commonly owned. When the common ownership ceased, new owners may have failed to ensure that easements over water pipes or sewer lines existed for the particular part of the property they were purchasing. The problem may have arisen due to an assumption that such a right was simply transferred with the purchased property, or by an omission on the part of the conveyancer. Whatever the reason, the failure to create and register an easement has given rise to a number of lasting problems. These difficulties have been compounded by the general reluctance of the Water Board to impose on new purchasers a requirement to install costly separate connections. Many properties today do not have a viable means of creating a separate connection at reasonable cost.
3.3 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.3
3.4 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,4 because at law easements over such services are not considered necessary to the land itself.5
3.5 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 submission6 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.
LIABILITY FOR COSTS
Role of the Water Board
3.6 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.7 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.
3.7 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
3.8 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.
3.9 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.9
PROPOSALS FOR REFORM RAISED BY DP 22
3.10 DP 22 raised several options for reform in this area. One suggestion put forward in the Discussion Paper was a scheme for the apportionment of costs for the repair or maintenance of a joint service similar to that which exists for dividing fences and which is contained in the Dividing Fences Act 1951 (NSW). This Act has now been repealed and replaced by the Dividing Fences Act 1991.10 The relevant provision in the 1991 Act that apportions costs in respect of a dividing fence is section 7.11
3.11 The other alternative the Commission suggested in DP 22 was the introduction of legislation modelled on s 22 of the Building Act 1984 (UK). This section allows a local authority, when determining that buildings should be drained either separately or in combination, to decide the proportions in which the expenses of constructing or maintaining and repairing the sewer are to be borne by the owners concerned. In some cases the authority may bear a proportion of the costs itself.
3.12 The submissions received by the Commission did not support either of these proposals in particular, but supported the general proposal that some method of apportionment should exist. The Law Society submitted that the apportionment of costs in such cases should be at the discretion of the court, and that costs should be apportioned in proportion to the benefits which are anticipated to accrue from the rights conferred.12 The Council for Community Justice Centres did not consider that there was any role for mediation, given the costs involved in re-organising such services.13
RECOMMENDATIONS
3.13 Because each user of a utility service has the use and enjoyment of that service as a whole, the Commission recommends that the maintenance and repair of that service should be the responsibility of all the users. Each user should contribute in equal proportions to the repair and maintenance of that service. An amendment to this effect, inserted in the Plumbing and Drainage Regulation (September 1989) would ensure that this recommendation is reflected at law, avoiding any of the current confusion.
FOOTNOTES
1. In January 1992, the Water Board estimated that within its area of operation there were approximately 3,000 properties affected by a joint water service and 32, 000 affected by joint sewer services.
2. Section 23.
3. As was the case in Industrial Non Woven v Weider (unreported) Supreme Court, NSW, Bryson J, ED 4968/87.
4. Union Lighterage Co v London Graving Dock Co [1902] 2 Ch 557 at 572; Ray v Hazeldine [1904] 2 Ch 17 at 20-21.
5. Pryce and Irving v McGuinness [1906] Qd R 591 at 608.
6. Board of Surveyors of New South Wales Submission (5 September 1991)
7. This policy came into effect during the 1980s, extending to copper service domestic water supplies between main and meter. Although nearly all services within the area of the Board’s operation are copper, there are still some galvanised iron services, which the Commission understands are gradually being phased out. In those cases, the Board will not intervene and liability for repair remains with the users of the service. There is an exception to the Board’s policy when, regardless of the type of service, it will not assume liability for the costs of repair where the damage to the service has been the result of direct interference.
8. Regulation 9 provides:
The owner of land connected to a water main, sewer or stormwater drain of the board must:
(a) install and provide, as prescribed by or under the Act, and
(b) at all times keep in good order and condition and free from defects the water service, sewerage service or stormwater service on the land from the water main, sewer or stormwater drain to the property.
9. Strata Titles Act 1973 (NSW), ss 59, 68.
10. Dividing Fences Act 1991 (NSW) s 7.
11. Further, section 15 of the Dividing Fences Act provides that once an agreement is reached by or among the adjoining landowners, or an order made by a local court, or land board, an adjoining owner has three months in which to perform his or her part of the agreement, after which the other owner may carry out the work as agreed upon and recover from the defaulting owner the amount agreed to be paid by that defaulting owner. Similar legislative intervention may assist users of joint utility services where they need to be repaired or maintained. However, a shorter compliance period may be appropriate, say seven days, given the inconvenience of not having water or sewage services disrupted.
12. Law Society Submission at 10.
13. CJC submission at 3.
