If a property owner or developer (the Developer) has submitted a development application to make renovations to or subdivide their property or for a change of use or operational works (Development Application), it is paramount they consider the connection of stormwater pipes, any overland flow paths and lawful points of discharge. If no lawful point of discharge exists, excess water may run onto neighbouring properties or backflow and cause damage, leading to disputes and legal action.
Any new stormwater infrastructure required under a development application may need to run through neighbouring land to reach a lawful point of discharge. Should this be the case, the Developer is required to obtain the consent of the owner(s) of the downstream land.
The consent process may be as follows:
- The Developer must seek consent from the downstream owner(s) and enter into a formal agreement, often in the form of an “Owner’s Statement of Consent or Refusal” (Consent Form).
- The downstream owner(s) may either grant or refuse consent for the drainage and should set out in the Consent Form what it will and/or will not allow to take place on its property. The Council also uses the Consent Form to inform its decision in relation to the development application. If no response is provided by the downstream owner(s), Council will consider consent to not be granted.
- If consent is not granted by the neighbour, the Developer must explore alternative options for drainage and lawful points of discharge. A common example is connecting to a drain or road controlled by the Council. Alternatively, the Developer may attempt to make arrangements for a mediation with the neighbour to discuss options.
It is also crucial to note that should consent be granted, the consent is specifically tied to the development application and must be current and in progress. Should the property be sold or the legal property owner change, or should the stormwater drainage plan be amended, notice should be given to the neighbour, and further consent should be obtained.
Stormwater Easements
A stormwater easement allows a person, or Council or another authority to install and maintain stormwater drainage infrastructure located within private property. Stormwater easements are registered on the title of the lot, and the easement document sets out matters including who is to maintain the easement and the infrastructure within it, and any restrictions it imposes on the property.
A stormwater easement may negatively impact the value of a property, as it can restrict land use and limit future development opportunities. However, the nature and extent of the impacts are dependent upon the location, size, and use of the easement. In certain situations, for example, if the easement is a private agreement or whereby the land is already subject to registered interests, the consent of the mortgagee(s) over the property may be required (for example, a general consent from the bank). The registration of an easement over an asset by a property owner may also trigger tax liabilities, such as Capital Gains Tax.
When purchasing a property, it is critical that appropriate searches and due diligence is undertaken, to ensure buyers are aware of anything impacting the property. The new “seller disclosure scheme” under the Property Law Act 2023 (PLA) provides that sellers must now disclose any and all types of encumbrances affecting the property. Therefore, sellers will be required to disclose all registered easements, inclusive of stormwater easements. Unregistered encumbrances are also required to be disclosed. Even a verbal agreement must be disclosed.
Therefore, it is wise to consider obtaining advice from the relevant professions prior to granting any stormwater right, or entering into any agreement or creating any possibility of an estoppel1, to assess the extent of its impacts and ensure fair compensation.
Statutory Easements
In Queensland, a statutory easement grants someone a legal right to enter or use all or part thereof of a landowner’s property for a specific purpose. Common examples where this may occur in Queensland may include the installation of a support structure such as a common wall, or installation of pipes and drains to manage stormwater
Section 180 of the Property Law Act 2023 (Qld) (PLA) allows the Supreme Court to impose an easement in the following instances:
(1) A person having an interest in land (the benefited land) may apply to the Court for an order imposing a statutory right of use over other land (the burdened land) if the statutory right of use is reasonably necessary for the effective use and development of the benefited land.
(2) Also, a person having an interest in land (also the benefited land) may apply to the Court for an order imposing a statutory right of use over other land (the burdened land), relating to a utility, in favour of the public utility provider providing the utility, if the statutory right of use is reasonably necessary for the effective use and development of the benefited land.
The case of Donskoi v Whitaker-Mead [2025] QSC 166 clarified the test for granting a statutory right of use. The test is as follows:
(1) The right of user sought is necessary in the effective use in any reasonable manner of the applicants’ land (s 180(1)). This matter in turn requires consideration of two factors:
(a) whether the proposed use is a use in a reasonable manner of the applicants’ land; and
(b) whether that use is reasonably necessary;
(2) It is consistent with the public interest that the applicant’s land should be used in the manner proposed (s 180(3)(a));
(3) Monetary compensation for the respondent is adequate (s 180(3)(b)); and
(4) The respondent’s refusal to accept the imposition of the obligation of user is unreasonable in all circumstances (s 180(3)(c)).
Planning Act 2016 (Qld)
Section 263 of the Planning Act 2016 allows a local government to take land for infrastructure purposes (which would include taking an easement for the drainage of stormwater) in circumstances including to facilitate a private development. For example, where a private developer has a development approval and has taken reasonable steps to get agreement of a downstream owner for infrastructure that is necessary for the development.
Sections 263A and 263B of the Planning Act 2016 (Qld) gives the State Government powers to take land (including an easement) for infrastructure that is necessary for development, and the reasonable steps have been taken to obtain the agreement of the owner of land, but the owner has not agreed.
Once the land has been taken, impacted property owners may follow the compensation claim processes set out in Part 4 of the Acquisition of Land Act 1967 (Qld).
Acquisition of Land Act 1967 (Qld)
The Acquisition of Land Act 1967 (Qld) (AOL Act) allows the State and Local governments to resume land for all sorts of public purposes, such as roads and railways. The AOL sets out the processes for the acquisition of land and claiming compensation for same. The Acquisition of Land Act 1967 (Qld) (AOL Act) sets out the processes for the acquisition of land and claiming compensation for same.
Section 6 of the AOL Act provides that:
- When for any purpose it is not necessary that the constructing authority should take the whole estate in any land, but it is sufficient for such purpose to take an easement, the constructing authority may take such easement only and for that purpose the provisions of this Act shall apply as if the easement were land.
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(3) The taking of an easement over land does not extinguish any interest in the land existing immediately before the easement is taken.
As per the above, once the land has been taken, impacted property owners may follow the compensation claim processes set out in Part 4 of the Acquisition of Land Act 1967 (Qld).
Milne Legal provides advice and represents clients in relation to stormwater drainage issues, easements, and a range of other town planning and environmental law matters. If you would like to get in touch, please contact our office on (07) 3210 0943 or email us at admin@milnelegal.com.au.
This publication is general in nature. Its content is current at the date of publication. It does not constitute legal advice and you should always seek legal advice based on your particular circumstances prior to making any decisions relating to matters covered by this publication. Certain details may have been sourced from external references, and we cannot assure the accuracy or timeliness of such information.