This article is about balcony floor drains.
A lot owner was concerned about her balcony’s floor drains which are ponding every time it rains. She contacted the caretaker and the body corporate manager, both of whom advised that the suspected blockage is not a body corporate responsibility. Their reasoning? Drainpipes are her responsibility when located on her balcony solely for her benefit, ie “hers + hers = hers”.
Her enquiries to the Commissioner’s Office suggested otherwise, ie the drainpipes are not the owner’s responsibility unless and until they protrude past the surface of her balcony floor tiles.
But the body corporate remains unconvinced.
The UOAQ prefers the Commissioner’s view, which aligns with numerous Adjudications and the material provisions in the BCCM legislation.
We will attempt a simple road map through these provisions.
The Scheme
It is a 10-level complex with 60+ residential lots. There is a large basement carpark below the podium level, with a daunting display of pipes and wiring of all sizes, and different materials, suspended from the ceiling.
The scheme is administered under the Accommodation Module (Module).
It is registered under the Land Title Act 1994 as a Building Format Plan (BFP). This means, for example, that when one lot is separated from another lot by a floor, the lot’s boundary must be located at the centre of that floor. Ditto for boundary walls and boundary ceilings.
And that floor, or wall, or ceiling, is known as a “boundary structure“.
The Scheme’s Balcony Floor Drains
Each lot enjoys a large balcony which is ‘on title’, ie the balcony forms part of the lot. Unlike some schemes, the balconies are not exclusive use areas (EUA)1.
Every balcony has at least two floor drains, and there are many more floor drains located on common property around the complex. All up, at least 150.
The balcony drains are fully embedded in the “boundary structure“. The grates sit flush with, or slightly below the tiles, ensuring they are not a trip hazard and do not impede run-off from the balcony into the drainpipes.
Everything entering these balcony drains ends up – or should end up – in the storm water pipes in the basement carpark. The scheme is about 20 years old, and every year these basement pipes have blocked up and a contractor has had to blast out the accumulated debris with a spear jet.
It seems, however, that little thought has been given to how much sediment was being left behind over these last 20 years, settling in the pipes upstream of the basement pipes … especially the 45mm drainpipes embedded virtually horizontally in the balcony floors.
Until now, that is. At least two owners have noticed the rainwater is not getting away as quickly as it once did, and invariably there is prolonged ponding on their balconies whenever it rains.
We have no idea whether these pipes can be flushed out and, if so, at what cost. But first, the owners and the body corporate need to sort out who is responsible for maintaining them.
We see this as a four-step process; the relevant law; the general rule; the two exceptions.
1: Which part of the BCCM law are we looking at?
Schedule 6 in the Body Corporate and Community Management Act 1997 (Act) defines “utility infrastructure” and “utility service”, and includes “pipes” and “drains” which provide a “drainage” service.
It seems the balcony floor drains are utility infrastructure, and, as such, there are rules specific to the maintenance responsibilities of utility infrastructure which need to be assessed.
2: What are these maintenance rules?
General Rule: There is a general rule that, subject to some exceptions, the body corporate is responsible for maintaining common property, including all utility infrastructure.
Some Exceptions to the General Rule: There are two notable exceptions – one in the Act, the other in the Module – which transfer responsibility for utility infrastructure to a lot owner. Both turn on the same threshold condition, ie the utility infrastructure must supply services ONLY to the owner’s lot. This is the ‘sole service’ condition.
Section 20(1)(b) Exception: Sole Service … and Location, Location
A lot owner is responsible for maintaining utility infrastructure if it:
- provides a service only to a lot1; and
- is located entirely within the boundaries of the lot1; and
- is not located within the lot’s1 boundary structure, ie it must exit past the inner face of the boundary structure and into the lot.
All three conditions must be met … Mr Meatloaf’s Rule of ‘2 out of 3 ain’t bad’ does not apply.
In this particular scheme, the drainpipes do not exit past the boundary floor into the lot.
The s.20 Exception does not apply, and the general rule prevails. Cootha View[2015] QBCCMCmr 202 [51].
Section 170(4) Exception2: Sole Service … and Defined Device.
A lot owner is responsible for maintaining utility infrastructure if it:
- provides a service only to a lot; and
- is either a defined “device” or associated with a defined “device”, eg hot-water-systems, air-conditioning systems, solar panels etc… including associated pipes and wiring.
Notably, it does not matter where the device etc is located. It could be entirely within the lot, or on unallocated common property or even on common property subject to grant of exclusive use.
Again, both conditions must be met.
It seems that “device” contemplates something more complex than mere pipes or drains. They will only be caught by the s.170 Exception if associated with a defined device, eg an extraction pump. Calamvale Willows [2021] QBCCMCmr 39 at paragraph [5], and Ocean Plaza Apartments [2023] QBCCMCmr 9 at paragraphs [61] and [64].
In this particular scheme, it seems that the balcony floor drains and pipes are neither a device nor associated with a device. Therefore the s.170 Exception does not apply, and the general rule prevails.
By way of contrast: we are advised that each of the 60+ residential lots in the scheme in question has a dedicated split-system air-conditioning system housed in common property service rooms located on each of the 10 levels. These systems are connected to their respective lots, and only to their lots, by way of the usual conduits etc. These systems are obviously “sole service devices” caught by the s.170 Exception, and are the owners’ responsibility.
Summary
It would appear reasonably obvious that the body corporate – not the lot owner – is responsible for maintaining the balcony floor drains at this particular scheme. We hope this dispute can be sorted in-house, without either dragging in the lawyers or engaging in unnecessary formal disputation.
If anyone else is caught in similar disputes involving floor drains etc, it would seem that the starting point is this: the body corporate is generally responsible for maintaining all utility infrastructure… unless an exception to the general rule can be identified.
But be cautious, and seek independent advice if necessary, perhaps starting with the Commissioner’s Office.
- EUAs and Utility Infrastructure: It should be noted that the s.20 Exception refers only to the “lot” and does not include an exclusive use area (EUA) allocated to the lot owner.
An EUA remains common property and does not form part of the lot.
Moreover, section 177 of the Act prohibits a grant of exclusive use over utility infrastructure. Likewise, section 174 of the Module does not permit a grant of lease or licence over utility infrastructure.
The general rule re EUAs and utility infrastructure is that if it is located in the lot owner’s EUA, the body corporate retains the maintenance responsibility…unless the s.170 Exception applies.
- See also s.180 Standard Module, s.99 Small Schemes Module
Ross Anderson
Unit Owners Association of Queensland (UOAQ)
This post appears in Strata News #672.
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Ray…many thanks for your feedback.
My thoughts about the floor drains being within the boundary structure because they do not project past the surface of the boundary tiles, were informed by 2 Adjudications, ie Admiralty Towers [2011] QBCCMCmr 13 (and cited in Marc Mercier’s textbook Body Corporate Law in QLD: Practice and Procedure 2nd Ed.), and Cootha View [2015] QBCCMCmr 202.
Admiralty Towers concerned a leaking pipe between the unit’s wall sheeting and the boundary concrete block wall.
Cootha View involved, inter alia, a floor drain installed to eliminate water ponding on a private balcony…see paras. [46] and [51].
I also referenced a recent Q&A by Todd Garsden of Mahoneys, published in Lookup #669.
If you have access to another source which says that the boundary structure includes only the slab under the tiles etc then I would appreciate your making it available for consideration.
On a broader note, I welcome different views on matters like this. They just confirm for me that ‘Arry Tottle was right when he identified 2 Fundamental Truths about 2,000 years ago ie the Truth of Logic – things like weight, length, volumes are simply what they are -v- the Truth of Rhetoric/Judgment – things are what you say they are. Most of our law is based on what someone in authority says it is. And as a dispute progresses up the appeal ladder, the meaning of the law can change from rung to rung to rung. A classic example involved Ainsworth and Albrecht, where it went from Adjudication to QCAT to the Queensland Court of Appeal and ultimately the High Court of Australia. It was like watching a tennis game. And at every rung, the decision was right…until overturned on appeal.
I do not agree with this assessment, and neither do our lawyers. In particular the 3rd point of 20(1)(b). The boundary structure of the balcony is the slab. On top of the slab is the waterproof membrane, the screed, and the tiles. The drain sits flush with the tiles so it clearly extends beyond the boundary structure. Additionally, there is the question of maintenance. If the drain is blocked because the owner has not maintained the balcony properly (eg, plant debris falling into the drain), there is scope for responsibility to fall to the owner.