The applicant in these proceedings owns and resides in Unit 13 of Units Plan 706, otherwise known as 'Mountain Vista'. Mountain Vista is located on the side of a hill, and Unit 13 is situated, as it happens, towards the bottom of that hill. When it rains heavily water runs down the common driveway and, despite a sump drain located at the front of Unit 13, water pools and enters the Unit 13 garage.
On 3 July 2017 the applicant filed an application against the Owners Corporation Units Plan 706. The application was brought under the Unit Titles Management Act 2011 (UTM Act). The applicant sought orders compelling the owners corporation to:
(a) undertake works in relation to the sump drain on Unit 13, the associated stormwater drainage pipes located on the common property, and the concrete common driveway;
(b) reimburse the applicant some $2,500 for property contained in his garage which has been damaged in flooding incidents; and
(c) rectify concreting of a small area of common property near Unit 13.
The Owners Corporation opposed the application in the main, conceding however that the area of concreting on the common property near Unit 13 should be rectified in some way.
The application was heard on 17 October 2017, commencing with a view of the units plan before resuming at the tribunal.
The applicant represented himself, He gave evidence, and relied upon evidence from Mr Andrew Skipper (a plumber) and Mr Fowler (a friend who had witnessed a flooding event) in relation to the drainage issues. He relied upon evidence from his father Mr Stephen Riley in relation to the concreting. He relied upon the documents attached to his application and those filed subsequently, including extracts of building plans, photographs and videos of rain events submitted on USB.
The owners corporation was represented by Ms Ross, a member of the Executive Committee, with other members of the Executive Committee also present. The manager for the owners corporation also attended the hearing.
The owners corporation relied upon evidence given by Mr Simon Collard (a plumber) in relation to the drainage issues, and Mr Riccardo Meneghal (an executive committee member and concreter) in relation to the concrete. The owners corporation relied upon the documents it had filed in the proceedings, including a 'timetable of drainage issues' with extracts of contemporaneous correspondence and minutes, a sewerage plan and other plans.
At the conclusion of the hearing, I made directions for the parties to each file submissions, for the owners corporation also to file a copy of the units plan and any approved stormwater or drainage plan, and the applicant to provide an index to the material filed on USB.
After each party had filed their further documents as directed, I understand that the applicant also submitted a further document to the Tribunal. It is well established that once a hearing has been conducted, and the decision reserved, that is the end of both written and oral argument. It is for this reason that, if further submissions or evidence is required, formal directions are made or leave granted. In accordance with the usual practice, I have not read the applicant's further submission.
[2]
The applicant submitted that since the units plan was built and registered, there have been ongoing issues about flooding. He argued that the garage to Unit 13 floods in medium and large storms, and that this flooding occurs because of inadequacy in the size of the sump drain, problems with the drainage pipes located on common property, and the camber of the main driveway.
He submitted that under section 24(1)(e) of the UTM Act it was the responsibility of the owners corporation to maintain the sump drain, and the pipes, so as to stop the flooding occurring. He submitted that in relation to the main driveway, it was the responsibility of the owners corporation to stop encroachment of water from the common property into his unit.
[3]
The owners corporation conceded that rain on the driveway is a problem, and that these problems for Unit 13, and for some other units, had been noted from the outset when the units plan was built in 1991. They submitted that the cause of the problem was the inadequately sized sump drain located on Unit 13, and that because the sump drain is owned by the unit the adequacy of the sump drain is solely the responsibility of the owner of Unit 13. The owners corporation pointed out that other owners - located further up the hill - had replaced their sump drains with larger drains, at the owners expense, which had largely dealt with the issue. The owners corporation also suggested that there might be a contributing factor of water seepage from Unit 12, which is situated uphill of Unit 13.
The owners corporation submitted that the government authorities had approved the plans of drainage and the driveway fall towards Unit 13, the inference being that the adequacy of the design was not questionable. The owners corporation submitted that there was no issue with the drainage pipes on the common property, that the problem was the sump drain and could be easily fixed by installation of a strip drain at the front of the Unit 13 garage. The owners corporation submitted that its plumber had put an electric eel down the pipes and had advised no pipes were blocked or broken. The owners corporation pointed out that garage doors are never watertight and in a bad downpour many other unit owners experienced flooding into their garages - one owner present indicated that in 26 years their own garage had flooded three or four times.
The owners corporation agreed that in heavy rain runoff goes over the ridge of the main driveway and flows directly towards the Unit 13 garage, and agreed that in principle the owners corporation had a responsibility not to direct the runoff into Unit 13. It submitted that it had on a number of occasions tried to rectify the main driveway, and had prioritised the area near units 2 and 13, but was unable to go ahead pending other work to be done.
The owners corporation was concerned by the precedent effect of a finding that the Unit 13 sump drain was the responsibility of the owners corporation rather than the individual unit owner, or by a finding that section 24(1)(e) of the UTM Act required the owners corporation to undertake anything other than maintenance to the current standard.
The owners corporation rejected any suggestion that it was obliged under the Act to 'improve' facilities on the common property, rather than simply 'maintaining' them.
[4]
Having viewed the registered units plan, and considered the plans and video footage provided, I am satisfied of the following facts.
Mountain Vista consists of thirteen single storey townhouses in all, each with its own garage. A central shared driveway extends, trunklike, from Derrington Crescent at the northern, and lowest, end of the site, branching into two limbs at the southern, highest, part of the hillside. The main driveway is made of concrete, it is of generous proportions and is not kerbed and guttered. The units, some with individual access driveways also of concrete, fan out from this central shared driveway. They are numbered in a clockwise fashion, from Unit 1 at the north-eastern and lowest point to the applicant's unit, number 13, located at the northwest lowest point and almost directly opposite Unit 2.
Unit 13 has a short individual driveway branching off the main driveway. The individual driveway is common property. There is a significant fall from the main driveway down the Unit 13 driveway to Unit 13's garage door. On the northern and lowest corner of the Unit 13 driveway, just under the eaves, is a small square sump drain about 200mm by 300mm. The units plan shows that the area which is unit 13 extends to the eaves.
Unsurprisingly, when it rains heavily there is a lot of water that needs to work its way off Mountain Vista and into the stormwater system in Derrington Crescent. Some of the rain falls on the roofs of the townhouses, and is channelled away underground by PVC pipes to tie into the stormwater main. Other rain falls on soft landscaping, and is to some extent absorbed. Other rain falls on impervious surfaces, such as the driveways and other concreting or paving, and as is the nature of water flows over these hard surfaces to the lowest point. While the main driveway has some central sump drains the operation of these is dependent upon runoff being directed to them. Because there is no kerbing and guttering on the main driveway, it is the camber of the driveway and its surface texture that directs the stormwater flowing over it.
Being situated on an elbow, close to the lowest point of the main driveway, and well below the central sump drain in the main driveway, Unit 13's driveway and garage is the unhappy recipient of much driveway runoff. This is particularly so when a heavy burst of rain leads the runoff to crest the spine of the main driveway.
I accept the evidence of the applicant, and it was not contested by the owners corporation, that in medium and large storms water pools outside Unit 13 and flows into the garage. I am satisfied that the Unit 13 garage door is not watertight when closed, and note that garage doors are not expected to be.
From reference to the plans, and the view, I am satisfied that the Unit 13 sump is located on Unit 13 and is thus the property of Unit 13.
From reference to the plans, the view, and the evidence of Mr Skipper and Mr Collard I am also satisfied that the sump is connected to the downpipes from the roof area for Unit 13 and its garage.
I am satisfied that the sump outflow connects to a single 90mm PVC pipe which is laid underground northerly towards Derrington Crescent, before making a 90 degree turn east to join the main stormwater drain under the common driveway. These stormwater pipes are all laid on common property.
I accept the evidence of Mr Meneghal (with which the plumbers agreed) that there is a decent fall from the sump outflow to the inspection hole at the corner, and then from that point to the main.
None of the above facts were contested. What is in contest, factually, is the reason why water pools in such quantities outside Unit 13 and thusenters the garage.
The applicant's plumbing witness Mr Skipper carried out a CCTV inspection of the relevant pipes which was recorded and put in evidence before me. Mr Skipper said that although the overall fall of the PVC pipes as described by Mr Meneghal was adequate, he observed that the pipes had areas of backfall. Mr Skipper said the effect of the backfall would be to act as a speed bump, slowing down the water in getting away.
Mr Skipper gave as his opinion that the Unit 13 sump was undersized for its location and purpose - its purpose he saw as being to salvage rain from the roof of Unit 13 and its garage, and surface water from the driveway. He estimated that up to 500 square metres of catchment area from the main driveway was directed towards the Unit 13 sump. He recommended a channel drain be put at the front of the Unit 13 garage to capture the runoff down the driveway.
He said that the 90mm pipe was also undersized for its purpose, as well as having problems with the observed backfall, and recommended that 100mm pipe be laid in its place. In cross examination he agreed that 90mm pipe was what one would expect from a 1990 build, and commented that "we run into problems like this all the time."
It might also be suggested that the sump overflows because of blockage of the pipes with leaves or other debris. However, the owner's corporation's plumber Mr Collard who inspected the drain in July 2017 after complaints it might be blocked or broken found no evidence of blockage or breaks. Mr Collard stated that leaves or other items in the sump drain itself could affect the outflow of water, and noted that currently the applicant has a small sump pump located in the sump drain.[1]
Although he did not look for or consider whether there was any backfall in the pipes, Mr Collard agreed that 90mm pipe was vulnerable to this occurring because it follows the lie of the trench. He agreed that backfall would slow down the stormwater from getting away, but said it would not stop it draining entirely.
Mr Collard also was of the view that the Unit 13 sump drain was inadequate to collect the surface water - even that emanating only from the Unit 13 individual driveway. He acknowledged that the main driveway has certain camber and a ridge or lip to direct the water, but considered that in a heavy rain that would be ineffective. This opinion is consistent with the video footage of water 'cresting' the driveway during one storm.
Mr Collard said that in his view the best solution would be to put a commercial grate drain 300mm wide by 230mm deep, across the front of the garage. Unlike Mr Skipper, Mr Collard considered that the 90mm pipes were adequate in their dimension, and that even if there was some backfall they should drain the water away quickly enough if there were an adequate drain.
I was impressed by both Mr Collard and Mr Skipper, however would prefer the evidence of Mr Skipper except for his opinion as to the size of the driveway catchment which seemed an overestimation to my non-hydrologist eye. In the end nothing turns on that point.
I am comfortably satisfied that the reason why the Unit 13 sump drain overflows and flooding of the garage occurs in heavy rain events is due to the interaction of a number of factors:
(a) the volume of surface water directed from the common driveway is too great to be funnelled down the small sump drain;
(b) the diameter of the PVC pipes combined with the fact that those pipes have areas of backfall produces a flow rate that is inadequate to service the volume of surface water from the driveway together with the volume of roof water from Unit 13 downpipes; and
(c) the sump drain location and surrounding topography is such that if the sump drain backs up water pools on the concrete footpath and into the garage, rather than overflowing onto the grassed common property and then downhill.
I do not rule out leaves, mulch or other debris as contributing to the flooding. Having viewed the footage of the water effectively 'pooling' or 'standing', common sense suggests that a partial blockage of the PVC pipes is likely a factor on those occasions. However, a functional stormwater drainage system should be able to cope with a small amount of such flotsam and jetsam. There is no evidence that the flooding events have always coincided with times of excessive leaf litter or mulch being washed away. The history of Mountain Vista documents similar drainage issues being reported from the first AGM in December 1991. Hence, I am comfortably satisfied that the predominate cause of the flooding is the design factors I have noted at paragraph 36, noting that some of those factors will likely have the effect of increasing the impact of any foreign bodies carried by the surface water.
[5]
When a units plan is registered, section 33(6) of the Unit Titles Act 2001 (UT Act) provides that the estates held by the former lessee/owner of each of the units, and the owners corporation, are subject to and have annexed to them those easements referred to in section 35 of that Act:
Leases of units and common property
[6]
(1) On the registration of a units plan, the lease of the parcel ends.
[7]
(2) On the registration of the units plan, the former lessee of the parcel becomes the holder of an estate in leasehold in each unit for the term fixed under subsection (5), subject to the provisions in the units plan for each unit, as if a separate lease of that unit for that term and subject to those provisions had been granted to the former lessee by the Territory under the Planning and Development Act 2007.
[8]
(3) On the registration of the units plan, the owners corporation becomes the holder of an estate of leasehold in the common property for the term fixed under subsection (5), subject to the provisions set out in the units plan for the common property, as if a lease of the common property for that term and subject to those provisions had been granted to the corporation by the Territory under the Planning and Development Act 2007.
(4) For subsections (2) and (3), registration of a units plan that subdivides a parcel of land under a declared land sublease ends the sublease.
[11]
(5) The term of the leases of the units and of the common property begins on the registration of the units plan and ends on the date (stated in the units plan) when, apart from the operation of this section, the term of the lease of the parcel would have ended.
[12]
_(6) The estate of which a person or the owners corporation becomes the holder under this section - _
(b) is subject to, and has annexed to it, any easement mentioned in that section; and
[15]
(c) is subject to, and has annexed to it, the easements given by this Act, section 35.
[16]
former lesseemeans the person who was the lessee of the parcel immediately before registration.
[17]
Sections 34 and 35 of the UT Act create easements on units and the common property in relation to utility services and conduits, including rainwater drainage:
[18]
This division applies to the following rights (unit title easement rights) that the owner of a benefited estate may have against the owner of a burdened estate:
[19]
(b) rights to utility services, and to their provision by any reasonable form of utility conduit (including rights for the collection, passage and drainage of rainwater by encroaching eaves, gutters, downpipes or similar structures);
[20]
_(c) all ancillary rights necessary to make the rights mentioned in paragraphs (a) and (b) effective, including a right of entry by the owner of the benefited estate at all reasonable times on the burdened estate for the inspection and maintenance of - _
[21]
(ii) facilities for any utility service on the estate; and
[22]
Note Estate is defined in the dictionary as a unit or common property (in this context).
[23]
(1) On and after the registration of a units plan, the owner of an estate (a benefited estate) has against the owner of another estate (the burdened estate) any unit title easement rights that are necessary for the reasonable use and enjoyment of the benefited estate.
[24]
(2) A unit title easement right under this section is an easement annexed to the benefited estate.
[25]
(3) An easement given by this section exists even if the same person is the owner of both the benefited and burdened estates.
[26]
(4) A person carrying out work in the exercise of a unit title easement right under this section must make good any damage done in carrying out the work.
[27]
Note Estate is defined in the dictionary as a unit or common property (in this context).
[28]
Similar provisions existed under section 27 of the Unit Titles Act 1970, which was in effect when Units Plan 706 was registered.
The effect of these provisions is that upon registration, the owner of Unit 13 was given easement rights against the owners corporation in relation to the PVC pipe stormwater system for the drainage of stormwater from the sump drain. At the same time, the owners corporation was given easement rights against the owner of Unit 13 in relation to the Unit 13 sump drain, because that sump drain is a utility conduit for the removal of stormwater from the common property.[2]
Although the sump drain is part of Unit 13 and is owned by Mr Riley, because it is a facility associated with the provision of stormwater drainage from the common property, section 24(1)(e) of the UTM Act places an obligation on the owners corporation to maintain it:
Maintenance obligations
[29]
(1) An owners corporation for a units plan must maintain the following:
[30]
(e) if a utility service mentioned in the Unit Titles Act 2001, section 35 (Easements given by this Act) is provided for the potential benefit of all units - facilities associated with the provision of the utility services including utility conduits; ...
[31]
The owners corporation submitted that a distinction should be drawn between 'maintaining' the sump drain and 'improving' it. The question of when maintenance becomes improvement - and thus beyond the obligation of an owners corporation - can often involve fine distinctions, particularly when the surrounding factors change over time.[3]
The word 'maintenance' is defined in the dictionary to the UTM Act as follows:
[32]
maintenance_, of a building, a facility for a utility service or a utility conduit, means maintenance in good repair and working order, and includes - _
[33]
The meaning of the term 'good repair' is self-evident. The expression 'working order' is variously defined to mean:
[34]
The state of being completely functional or operational. (Oxford Online)
[35]
The state of something, as a mechanism, when it is functioning properly. (Macquarie Dictionary)
[36]
A condition in which a machine etc works satisfactorily. (Oxford Dictionary)
[37]
The condition of a mechanism when it is functioning properly (Dictionary.com)
[38]
On a narrow reading 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 individual facility or conduit under consideration remains in good repair and working order. A broader reading, which has regard to the function the utility service is intended to perform, would conclude that it cannot be said to be 'completely functional' or 'functioning properly' if the utility service does not perform as desired.
Because the maintenance obligation under section 24, and the definition of 'maintenance', are each directed to the 'facility' or 'conduit' rather than the overall utility service, I consider the narrow interpretation must be preferred. One must consider the state of repair and functionality of the individual facility or conduit, rather than the functionality of the utility service as a whole.
[39]
What does the 'maintenance' obligation require in relation to the stormwater?
[40]
I am satisfied that the Unit 13 sump, while belonging to the applicant, is a conduit or facility for the passage of rainwater from Unit 13 and the common property and thus falls within the owners corporation's maintenance obligations under section 24(1)(e). I am satisfied that the PVC pipes are on common property, and as a conduit for stormwater for both Unit 13 and the common property they are also required under section 24(1)(e) to be maintained by the owners corporation in good repair and working order.
I am satisfied that the size and design of the Unit 13 sump drain has been inadequate for its task since the units plan was built in 1991. It has never been up to the job of collecting driveway runoff that it was intended to perform. In addition, further hard landscaping to common property has been undertaken since the units plan was built, which likely contributes to the current amount of run-off. However, the sump drain is itself in good repair and working order. The owners corporation is not required by section 24(1)(e) of the UTM Act to replace, relocate or redesign the sump drain.
From the evidence of the plumbers and given the background history of flooding, I am satisfied that the diameter of the PVC pipes running from the Unit 13 sump drain to the stormwater main is inadequate for the original and current catchment. However, although 90mm pipes may be inadequate for the stormwater system to work effectively, improvement of the size of the pipes does not fall within the maintenance obligation of the owners corporation under section 24(1)(e) of the UTM Act.
I consider the observed 'backfall' in the PVC pipes amounts to a lack of good repair and working order. There may also be some damage to the pipes as a consequence of tree root incursion as far back as 2009. I cannot say with certainty whether the backfall has been present since 1991, or is a recent phenomenon, due perhaps to the presence then removal of nearby trees. In any event the backfall amounts to a current lack of good repair and working order, which falls within the maintenance obligations of the owners corporation.
I will make orders requiring the owners corporation to re-lay the 90mm PVC pipes from the Unit 13 sump drain to the main drain. If there are any broken pipes, they will be identified and rectified in this process.
I decline to make orders in relation to concreting work on the main driveway. Although there was some discussion of resurfacing or further sculpting the surface of the driveway to better direct the runoff, these arguments were not developed in the hearing or written submissions and this work does not fall within the maintenance obligation of the owners corporation under section 24 of the UTM Act.
[41]
The applicant sought reimbursement of the value of belongings which he submitted were damaged through the effects of water entering his garage in heavy rain, on the basis that the owners corporation was well aware of the risk of flooding and that any flooding would cause damage to items in the Unit 13 garage.
In relation to the claim for compensation, the owners corporation argued that as a new owner the applicant would have been aware of the drainage issue from the time of purchase, as this was well documented in the owners corporation minutes. A number of other units had been similarly afflicted, and had installed bigger sump drains at their own expense. The owners corporation argued that it was not aware that the applicant was conducting a business from home (leading to items being damaged), and that there was contributory negligence in that once aware of the flooding the respondent should have put items up higher so that they would not be damaged in further flooding events.
The claim for compensation raises questions about the tribunal's jurisdiction under the UTM Act. The answers to those questions are not always clear.
Part 8 of the UTM Act sets out when an application may be made to the tribunal, and the orders that may be made. Sections 125 - 128 detail kinds of disputes and identifies the parties to those disputes who may apply to the tribunal. Section 129 then sets out the tribunal's powers when an application is properly brought before it.
This application was brought under section 125 of the UTM Act. The key requirement for an application to be brought under section 125[4] is the existence of a dispute relating to an owners corporation for a units plan, between the corporation and a specified party. Either party to the dispute can bring an application to the tribunal, and after hearing the application the tribunal may make any of the orders listed in section 129(1), or pursuant to section 129(2) any other order it considers 'reasonably necessary or convenient' to 'resolve' that dispute.
The first jurisdictional question is: does this dispute 'relate' to an owners corporation for a units plan? In one sense, any disagreement between the owners corporation and a specified party would satisfy this definition. The question has previously been approached by the tribunal as being one of degree. Certainly, if the dispute relates to one of the parties doing or failing to do something required by the UTM Act, this has been considered to 'relate' to an owners corporation for a units plan.[5]
Once an application is brought by a relevant party, in relation to an eligible dispute, the second question is what legal framework does the tribunal apply in deciding the application? How does the tribunal decide what orders to make to 'resolve' the dispute, and what must it satisfy itself of in deciding whether to make an order?
Procedurally the answer is clear - the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides the procedural framework for the tribunal to conduct the hearing.
In terms of the substantive law to be applied by the tribunal, the UTM Act does not set out what the tribunal should have regard to when deciding an application. Given the objects of the ACAT Act require decisions to be 'fair' it is can be assumed that the Tribunal does not exercise its jurisdiction whimsically, idiosyncratically or arbitrarily, but has regard to the facts,[6] and the parties' rights and responsibilities under common law and statute, in reaching a rational decision.
But how far does the tribunal go in considering the parties' rights and responsibilities? If the reason advanced for 'why' the tribunal should make an order sounds a lot like a claim in negligence, should the tribunal approach it as such, applying the principles and statutory constraints that apply to such an action on a cause of action, and only making orders if those requirements are met?[7] Or can an application that falls short of satisfying the requirements for a civil claim still be the subject of orders by the tribunal, if the tribunal considers those orders are 'reasonably necessary or convenient' to 'resolve the dispute'?[8]
There is nothing in the UTM Act which deals expressly with this question. An examination of the explanatory statement to the UTM Act, and the second reading speeches, is of limited assistance. There is also no uniform approach when one has regard to other jurisdictions, each of which has differently phrased legislation. For example, in Victoria, it is accepted that a claim for breach of statutory duty - provided the duty is one imposed under the relevant legislation - may be brought in the VCAT in its unit titles jurisdiction. However, claims for negligence and nuisance may not be.[9] In NSW under the previous legislation[10] a claim for breach of statutory duty could not be brought,[11] however under the current legislation[12] this is expressly provided for. An action for breach of statutory duty in relation to maintenance obligations is now clearly provided and may be brought in the NCAT; parties are bound by the determination of the Tribunal within its jurisdiction and the jurisdiction of a court is excluded in that respect.[13]
The facts giving rise to the claim for compensation in this case might be characterised as a negligence claim or a claim for breach of statutory duty. In providing their rationale for why orders should or should not be made, the parties talked about the owners corporations 'duty' and 'contributory negligence' by the unit owner. The reason advanced for why it would be 'fair' for the Tribunal to make these orders 'to resolve the dispute' are clearly grounded in negligence or breach of statutory duty and thus require the Tribunal to decide the question of the content of its jurisdiction.
The answer to this question turns on how broadly one interprets the phrase 'dispute relating to an owners corporation for a units plan'.
These words used in Part 8 of the UTM Act are open to being interpreted as granting the tribunal an unlimited jurisdiction to determine disputes, including, in declining breadth:
(a) all civil causes of action between an owners corporation and specified parties; or
(b) all civil causes of action between an owners corporation and specified parties where a part of the cause of action relates to obligations imposed by the UTM Act or UT Act;
(c) a subset of civil causes of action between and owners corporation and specified parties where a part of the cause of action relates to obligations imposed by the UTM Act or UT Act (eg. breach of statutory duty but not including negligence or nuisance);or
(d) no civil causes of action between an owners corporation and specified parties.
I consider that the final, and narrowest interpretation is to be preferred as being the interpretation that best promotes the purpose of the legislation.[14] Although the second reading speeches and explanatory statement indicated that the new jurisdiction would be expansive, those expressions must be interpreted with reference to the prior legislation which provided only a limited 'deadlock orders' power to the Magistrates Court. Any of the more expansive interpretations would have been such an extraordinary change to the legal landscape that one would have expected to see a clear reference to concurrent jurisdiction, and the implications of such, in the speeches if not in the legislation itself.
While it is not a strong point in isolation, it can be noted that a preference for the narrow interpretation is consistent with the history of amendment of the UTM Act. The Tribunal has for some time expressed the view that an application for outstanding levies to be recovered as a 'debt' should be brought in the tribunal's civil jurisdiction rather than under the UTM Act.[15] However, the expansive interpretation of Part 8 would permit a civil debt application to be determined in the unlimited UTM Act jurisdiction. The Legislature has not taken any steps to amend the UTM Act to clarify that such a civil debt claim can be brought in the unlimited UTM Act jurisdiction, despite the UTM Act having been amended specifically in relation to the recovery of unpaid levies.[16] This failure to amend the legislation in this respect might be taken as an indication that the tribunal's current interpretation of its jurisdiction, in that respect, is correct.
Consequently, I am not satisfied that the claim for compensation whether cast as a negligence claim or a claim for breach of statutory duty, can be brought under the UTM Act. There is no rationale under the UTM Act on which it might be considered to be 'reasonably necessary or convenient' let alone 'fair' for the order for compensation to be made to 'resolve the dispute'. The claim for compensation under the UTM Act must be dismissed.
If the evidence in the case had indicated that the compensation claim if brought as a civil claim was likely to be successful, I would have directed the applicant to file a civil dispute application, taken further submissions from the parties, and decided that application with this matter. However, I was not satisfied on what I have heard that a civil claim was likely to be successful, so I did not take that step. For the parties' benefit I will summarise the reasons why I did not think those claims would be successful.
First, in relation to a claim for breach of statutory duty I am not satisfied that the Legislature intended that a failure to comply with the maintenance obligations under the UTM Act could form the basis of a claim for breach of statutory duty. I note that the legislation in Victoria, where such an approach has been taken, has some key difference to the UTM Act. The UTM Act might be considered more similar in this respect to the former NSW legislation, where such an action was considered not to be available.
Secondly, in relation to the claim in negligence I am satisfied that the owners corporation owes a duty of care to unit owners in relation to how it manages the common property, and rainwater runoff from the common property. I am satisfied that the garage to Unit 13 has flooded, on multiple occasions. I am satisfied that as a consequence the applicant has suffered loss.
However when one has regard to Chapter 4 of the Civil Law (Wrongs) Act 2002 I do not consider on the evidence as it was before me that the applicant would be successful in his claim. Noting that the applicant purchased the property around 2007, if the flooding which caused the damage which led to the loss now claimed for occurred prior to six years before this application was brought, it is outside the limitation period prescribed by the Limitation Act 2001. Any claim for loss occurring in the early years would be out of time, and a claim for loss occurring in later years while within time in my view would be subject to a finding of 100% contributory negligence. Also as noted earlier, garages are not expected to be waterproof in relation to groundwater, and other garages in the units plan which no longer experience drainage issues flooded from time to time over this period. I do not know which rain events caused the flooding that caused the damage that led to the loss, and cannot exclude that the flooding which caused the damage would have occurred in any event as an extraordinary rain event.
Because I have not considered these potential civil claims, there is no bar to the applicant bringing such claims in the future, in the appropriate jurisdiction and of course subject to the necessary time limits.
[42]
In relation to the area of new concrete on common property near Unit 13's driveway, undertaken in 2016, the applicant submitted that this concreting was poorly done, and was so much higher than the surrounding concrete as to become a trip hazard. He submitted that it was the owners corporation's responsibility to ensure there were no trip hazards on common property, and this should be ground down or taken out and re-poured with expansion joints so as to minimise the risk of future lifting.
The owners corporation agreed that this area of concrete was too high, and indicated it was happy to remove and re-grass that area, or grind the concrete down to an appropriate height.
Effectively, the parties were in agreement that this area of concrete needed rectification, and remained in dispute as to how to rectify it. I am satisfied that the area of concreting on common property adjacent to the Unit 13 driveway does require rectification, and will order that it be taken up and re-poured.
[43]
The Tribunal is satisfied that the owners corporation has an obligation under the UTM Act to maintain the Unit 13 sump drain, and the associated PVC pipes. This obligation under the UTM Act to maintain these individual parts of the stormwater system does not extend ensuring the overall adequacy of the stormwater system. The Tribunal is satisfied that the PVC pipes have areas of backfall, such that they are not completely functional, and will require those pipes to be taken up and re-laid.
The Tribunal is not satisfied that an owners' corporation's failure to meet its maintenance obligations under the UTM Act gives rise to a claim for breach of statutory duty.
The Tribunal is satisfied that the owners corporation owes a duty of care to the unit owners in relation to its management of the common property, and that a breach of this duty may give rise to a claim in negligence. Additionally, the owners corporation should manage the common property in a way that does not cause a nuisance to other persons, including unit owners. Where a unit owner relies upon these principles as the reason why the tribunal should make orders against the owners corporation to 'resolve the dispute', this is not within the jurisdiction of the tribunal under the UTM Act but should be brought in the appropriate civil jurisdiction.
In this case, it remains open to the applicant to bring such claims against the owners corporation.
I note that the owners corporation at all times during this hearing conceded that there was a problem with the management of stormwater, but did not consider that the owners corporation was required under the UTM Act to undertake the works requested by the applicant. That is correct. However, the owners corporation may be required to better manage the stormwater on the other legal bases identified above. It will be a matter for the owners corporation to decide whether, having regard to the evidence given in this hearing, and the owner's corporations' other legal obligations, it wishes to take the opportunity to upgrade the PVC pipes to 100mm when those pipes are re-laid; or install a grate drain on the common property at the front of the Unit 13 garage (or further uphill), so as to better manage runoff from the common property.
The orders of the Tribunal therefore are:
The owners corporation is to remove and repour the concrete adjacent to Unit 13 driveway within one month of these orders.
The owners corporation is within three months of these orders to:
(a) remove the existing 90mm PVC pipes between the Unit 13 sump drain and the mains; and
(b) re-lay with at least 90mm PVC pipes.
[44]
[1] The current presence of the sump pump can be discounted as the historic cause of flooding, which is documented back to the first AGM in 1991
[45]
[2] It might be argued that an easement in relation to the sump drain is not strictly 'necessary' for the owners corporations use and enjoyment of the common property, however as a matter of fact in this units plan the unit 13 sump drain is the mechanism by which the owners corporation manages stormwater in that location. It seems that, if the owners corporation was to redesign the stormwater collection and passage from the common property, so that the Unit 13 sump drain was no longer required, the legislated easement to the sump drain would simply disappear.
[5] A similar approach is taken in relation to the jurisdiction to make orders in relation to a 'tenancy dispute' or 'occupancy dispute' under the Residential Tenancies Act 1997
[49]
[6] As found by the Tribunal having regard to the evidence
[50]
[7] If the tribunal did exercise its jurisdiction in that way, it would seem to follow that a separate civil action could not be brought between those parties on the same facts, the action having been determined.