Condominiums, Drinking Water Systems and the Safe Drinking Water Act

Posted by: Roy Gentles Recently we have run into a number of issues surrounding the interpretation of the Safe Drinking Water Act, 2002 (the “Act”).  Namely, several municipalities have declared that the system of works that supplies water to the unit owners of the condominium plan is a “non-municipal year round drinking water system”, a “non-municipal drinking water system” or in laymen’s terms a private drinking water system under the Act. The interesting part from our perspective is that municipalities only appear to be raising this concern when the project is being developed as a vacant land condominium plan.  As you may be aware, a standard condominium plan and a vacant land condominium plan can appear exactly the same once built out (although this is not always the case).  Yet, it appears that if two developments are built side by side, one a standard condominium plan and the other a vacant condominium plan, both of which have the exact same number of units, the exact same layout, and the exact same system of works distributing water, the municipalities would only consider the vacant land condominium plan a non-municipal drinking water system under the Act. Therefore, it appears that in most, if not all, of these cases it is not a safety concern that results in the vacant land condominium corporation having to comply with the added security, reporting, inspection, and testing imposed by the Act on non-municipal drinking water systems, but rather the location of the unit boundaries.  We draw this conclusion based on the fact that if there was a legitimate safety concern with the system of works distributing water itself, then the municipalities would not allow standard condominium plans to be exempt from these requirements.  Further, we are experiencing these issues in developments where one hundred per cent (100%) of the water supplied to the condominium has already been treated in accordance with the Act by the municipal drinking water system. This issue is yet to be resolved, but when considering what type of condominium to use for your development be aware that a vacant land condominium plan is likely to run into this issue.  We suspect that common element condominium plans and possibly phased condominium plans will receive similar treatment, however, to date we have not experienced this first hand. It should be noted that we have solutions to the concerns raised by the municipalities, which should satisfy even a strict reading of the legislation. If you’re considering developing a vacant land condominium, a standard phased condominium, or a common element condominium we strongly recommend discussing drinking water systems with your legal counsel at the outset of the project.