Question: Do I have to allow access to my storage room to install a gas pipe that will serve my neighbour’s property, even if they pay for it? What are the legal implications of having their gas pipe on my property?
The neighbouring lot had a gas leak within their property, affecting only their facilities. The contractor suggested installing a new overriding gas line pipe on my side of the common or party wall between our two lots, inside my storage room.
The owners corporation would like access to my storage room to install the pipe and reconnect the gas service to the apartment. The lot owner will pay the costs.
Am I obliged to allow access? The pipe will be within my lot but will belong to and benefit only the neighbouring lot. What are the legal implications of having someone’s property (gas pipe) within my lot concerning future service and maintenance of this gas pipe?
Answer: You can set conditions to protect your interests.
If you decide to allow the gas pipe to be installed and grant access, you can set conditions to protect your interests. For example, you could require a formal agreement (such as a licence) that outlines:
- Ownership and maintenance: The apartment owner is responsible for maintaining, repairing, and covering all costs associated with the gas pipe.
- Liability: Any damage caused to your property during installation or use of the pipe must be repaired at the apartment owner’s expense.
- Future changes: If the pipe needs to be removed or relocated in the future, the apartment owner must cover the costs.
It may also be prudent to ensure this agreement is recorded with the owners corporation register and possibly noted on the title to protect you and any future owners of your lot.
If you choose not to consent, the apartment owner or the owners corporation could apply to the Victorian Civil and Administrative Tribunal to resolve the issue. Under Section 50 of the Owners Corporations Act 2006 (Vic), an owners corporation can authorise someone to enter a private lot to carry out repairs, maintenance, or other works, but only in specific circumstances, such as:
- Shared services: The works involve a service that benefits multiple lots or the common property (s47(1)).
- Impracticable repairs: The service relates to the lot owner’s property, but the owner cannot reasonably carry out the work themselves, and they’ve requested the owners corporation to step in (s47(2)).
- Breach notices: To undertake works specified in a breach notice if the owner has failed to comply within the given timeframe (s48(3)).
A ‘service’ under section 47(2) includes utilities like gas, especially where there is an implied easement under Section 12(2) of the Subdivision Act 1988. However, it is unclear whether the proposed location of the gas pipe is essential for the passage of gas (which could support the existence of an easement) or simply a convenient option.
Even with Section 50, the owners corporation cannot compel access without an order. In most cases, a Tribunal or Court order would still be necessary if access is disputed.
Fabienne Loncar Moray & Agnew Lawyers E: floncar@moray.com.au P: 03 8687 7319