Body Corporate and Community Management (Standard Module) Regulation 2020 (Standard Module)

MAINTENANCE; PROPERTY DAMAGE - whether the body corporate must repair a damaged pipe that drains stormwater from a driveway servicing two lots; whether the defective drain has damaged the applicant's property and the body corporate must repair it.

Act, ss 20, 36(1), 281; Standard Module, ss 180(1), 211(3).

1. Within two months, the body corporate must repair or replace the damaged stormwater infrastructure near the carport of lot 16.
2. The application is otherwise dismissed.

• [1] A grated drain lies at the bottom of a common driveway that slopes down to lots 15 and 16. Ms Smee of lot 16 says it overflows during rain, causing "cracks and slab movement all around it" that in turn have cracked the common wall between lots 15 and 16.
• [2] Ms Smee argues the drain is common property that the body corporate must maintain in good condition, and that the body corporate must now also repair the damage the drain has caused to her lot. She seeks orders in the following terms:

1. To have the common drain between units 15 and 16 fixed properly at body corporate expense due to this being a body corporate drain.

2. To have a water engineer assess how to properly fix this drain at body corporate expense as per structural engineers advice.

3. To have the cracks surrounding the drain fixed so that no more water can seep under the slab of the houses - cracks formed due to inadequate drainage of the drain could continue to channel water under the slab and cause further damage.

4. For the body corporate to have a suitable professional assess the slab under the house and if underpinning of the slab is required to carry out the works at body corporate expense.

5. To have the structural wall connecting units 15 and 16 fixed as seen in the structural report this wall adjoins the middle of where the drain is.

• [3] A plumber performed a CCTV inspection and "found the stormwater system that takes the drain in front of the garage appears to have failed in front of the carport of unit 16".[1] The body corporate committee concluded it was the owner's responsibility to repair.
• [4] All utility infrastructure forming part of scheme land is common property that the body corporate must maintain in good condition, with some exceptions.[2] Amongst the exceptions is utility infrastructure that is:

(i) solely related to supplying utility services to a lot; and

(ii) within the boundaries of the lot (according to the way the boundaries of the lot are defined in the plan of subdivision under which the lot is created); and

(iii) located other than within a boundary structure for the lot.[3]

• [5] But the failed pipe near lot 16's carport is not solely related to supplying utility services to lot 16. It drains water from the grated drain on the shared driveway, preventing water running off the driveway from flowing into either lot 15 or 16. Ms Smee says the drain's failure has caused water to enter lot 15's garage at times. Consequently, the pipe does not come within the exception. It is common property that the body corporate must restore to good condition.
• [6] The committee speculates that the pipe was damaged during renovations to lot 16. No evidence was submitted in support of that contention, though it would not relieve the body corporate of its responsibility to restore the pipe anyway. The body corporate must keep the common property in good condition, whatever the cause of its degradation. If it feels another party caused or contributed to the damage, it might pursue a legal remedy "as if the body corporate were the owner of the common property".[4]
• [7] Ms Smee asks that the body corporate has the grated drain assessed by a water engineer. She refers to a report by Peer Consulting Engineers, who she engaged to conduct a "general structural assessment inspection" of her lot on 30 August 2024.
• [8] Peer Consulting Engineers found that slab movement had occurred, as had cracking of the common wall between lots 15 and 16, primarily due to soil movement. He noted Ms Smee's claim that water ponds on the driveway and cautioned that "improperly directed stormwater may weaken the soil, further contributing to the settlement of the house". He recommended regular inspections and maintenance of the stormwater system, and said "engaging stormwater consultants/engineers immediately to assess the adequacy of the current stormwater drainage design is strongly advised".
• [9] None of this amounts to a finding that the overflowing driveway drain was responsible for the slab movement and wall cracking. The engineer took Ms Smee's word that the drain was overflowing at times and said the issue should be investigated because drainage defects "may" weaken the soil.
• [10] But a plumber has now identified the reason the driveway is not draining properly. There is no evident need for further investigation to resolve that issue. The body corporate only needs to have repairs carried out.
• [11] Ms Smee says the body corporate should also fix cracks in the slab around the drain caused by years of the drain overflowing. Where an applicant has suffered property damage due to a contravention of the Act (such as a failure to maintain common property utility infrastructure in good condition), an adjudicator can order the responsible party to repair the damage.[5]
• [12] But Ms Smee has submitted no evidence of these cracks. They were not mentioned by Peer Consulting Engineers. Assuming the cracks exist, there is also no evidence they were caused by the defective drainage rather than, for example, normal movement of reactive clay soils.
• [13] Ms Smee asks that the body corporate engages a suitable professional to investigate the slab under her lot and underpin it if required. But there is no evidence this is necessary either, or that the movement of the slab is due to the body corporate's failure to maintain the drain. Peer Consulting Engineers only said slab stabilisation would be required "if further deterioration in foundation settlement is observed". If slab stabilisation did become necessary, responsibility would rest with Ms Smee in the first instance.[6]
• [14] Finally, Ms Smee seeks an order that the body corporate must repair the wall separating lots 15 and 16. But, again, there is no clear evidence that the soil movement that cracked the wall was caused by the drainage fault. In its absence, the default position is that the owners of lots 15 and 16 must keep their lots in good condition.[7] If the wall forms the boundary, responsibility is shared between them.
• [15] For these reasons, the body corporate must repair the damaged drain near the carport of lot 16, but the remainder of the application is dismissed.

[1] A.K. Blair & Co, invoice 59097, 31 August 2023.

[2] Act, s 20; Standard Module, s 180(1).

[3] Act, s 20(1)(b).

[4] Act, s 36(1).

[6] Standard Module, s 211(3).