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Topic
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Hi there
I am after any advice for the connection of natural gas to my apartment.
1. I live in a small strata development in Sydney registered in 1996. There are 18 units in total. 14 of the units had natural gas connected at the construction phase 30 years ago. 4 do not. I am one of the 4 that do not have gas connected.
2. A special by-law was registered for the provision of services, including gas, about 2 years ago. Amongst other requirements, it states that ‘no reasonable’ request for such a service can be refused.
3. I am in dispute with the OC due to the location of the gas copper pipes.
4. The by-law says that the pipes cannot encroach on another persons lot.
5. However, in order to run the supply to a proposed meter, I need to run about 2.9 metres of 20mm gas copper pipe in a neighbours lot. It would be attached to their brick external wall in their lot. The brick wall is considered to be common property. The gas pipe would be in their air space.
6. The owner has given me written consent to have the pipe located in their lot despite what the by law states.
7. The OC have rejected my application suggesting that I would require an easement to be drawn up to allow the pipe in her lot.
8. I understand that an easement is more permanent in nature but my question is whether the written consent offered is sufficient enough to allow the pipe to be attached.
9. The remaining gas pipes run on other external brick walls which are common property and the OC has not sought easements for their placement.
10. We are proceeding to Mediation in about 2 weeks.
Any advice appreciated.
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Replies
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wildbear – I assume you’re saying that because the proposed pipe is attached to the external surface of a Lot’s external (common) wall, then it’s in the air space of that Lot (?).
If that interpretation is correct, then it’s wrong!
The fact is that once a pipe or indeed any item is attached to the common property (wall) such that the property would be in some way left damaged should that item be removed (in this instance by masonry fixings), then that item becomes part of that common property.
Whilst I don’t know how your Plan’s Special By-Law is written, it should for that very reason contain a provision that shifts the responsibility for the ongoing maintenance of repair of gas pipes so fitted from the Owners Corporation (O/C) to you and any subsequent Owners of your Lot.
Again, I assume that the O/C) is talking about an easement because the area directly below the common property (wall) is part of the Lot (?), and so any maintenance that may be necessary on the gas pipe would require that Lot Owner’s permission for access and to possibly position a ladder.
If that interpretation is correct, then the O/C is also wrong!
IF the Owner of the Lot ever became obstructionist you could apply for a Utility Access Order under the provisions of the Access to Neighbouring Land Act (2000), or alternatively, at a stretch the O/C could itself gain access to have such maintenance or repairs undertaken under the provisions of Sect.65 of the Strata Schemes Management Act (1996) provided it then invoiced the costs to you.
I hope this assists in some way with the lucky-dip that pretends to be Mediation.
Final comments are to reiterate that your proposed gas pipe will form part of the common property, and whilst it will not encroach on another person’s Lot it would be somewhat difficult to maintain without trespass in the absence of a sky-hook, so I’d suggest some degree of caution about you relying entirely on a consent regarding access to that Lot from the current Owner that would not apply to any less-friendly future Owner of that Lot.
You’d do better to rely upon the means discussed in the 7th para of my last post.
@Whale said:
The fact is that once a pipe or indeed any item is attached to the common property (wall) such that the property would be in some way left damaged should that item be removed (in this instance by masonry fixings), then that item becomes part of that common property.
I sorry Whale but I don’t agree with this sweeping statement that anything attached to common property automatically becomes common property.
If that was the case then fitted kitchens and bathrooms (in fact anything att to a common wall inside the unit) that happen to be att to a common wall would be considered common property which they patently are NOT.
Both fitted kitchens and gas pipe are att to the common property and in the lot air space.
KWP – sweeping statements may be your forte on this Forum (
) but I acknowledge that mine is being the arch-conservative.So when I read Sect 65A of the NSW Strata Schemes Management Act (the Act) in the context of strata-savvy / bush-lawyer Owners and the often inconsistent rulings made by the NSW Civil & Administrative Tribunal (NCAT), then I read the provision that, in the absence of a Special By-Law stating differently, makes the Owners Corporation (O/C) responsible for the maintenance and repair of anything that’s been added to or erected on its Common Property by an Owner, as ipso-facto meaning that any such items are indeed part of that Common Property.
I agree that there are “degrees” of such changes and additions to the Common Property by Owners and that there may be an implied difference between those made on the external surface of a common wall and those made on the inside surface (i.e. within the air-space) of a Lot, but none of that’s stated in the Act and I’d sooner not leave decisions on such potentially contentious and expensive matters to interpretation by a third-party!
So whilst our Executive Committee doesn’t insist on Special By-Laws subsequent to Owners requests for our O/C’s consent to occasional renovations within Lots such as those to kitchens and bathrooms, we do cover its collective backside by including a clause stating that Owners’ acceptance of any consent and their undertaking of their renovations constitutes an understanding and acceptance by them of the requirement that they and subsequent Owners of the Lot are without limitation responsible for the on-going maintenance and repair of whatever it is that they’ve added to or erected on the Common Property.
What do they say about a stitch in time?
wildbear – having been on the receiving end of disparate rulings in the former Consumer Trader & Tenancy Tribunal in circumstances where our matters (2) were substantially the same, I’ve concluded that case law didn’t count for much in that Forum and I doubt that its metamorphisis to the NCAT as changed that too much; different horse with the same jockeys!
Suffice to say though that with regard to any additions and alterations to and the erecting of new structures on the Common Property, where Sect 65A(3) states that ….
“if a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, (then) the owners corporation has the responsibility for the ongoing maintenance”
….and your Plan’s Lawyer-written Special By-Law does include such a specification, then I think that supports my conclusion; albeit necessarily conservative in the context that I’ve outlined.
wildbear – here’s what I advised almost 3 weeks ago in post #2, so do what your Lawyer’s advising; get the service connected and if you don’t get or want the easement then rely on this……
IF the Owner of the Lot ever became obstructionist you could apply for a Utility Access Order under the provisions of the Access to Neighbouring Land Act (2000), or alternatively, at a stretch the O/C could itself gain access to have such maintenance or repairs undertaken under the provisions of Sect.65 of the Strata Schemes Management Act (1996) provided it then invoiced the costs to you.
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