When developing land situated above neighbouring properties, careful attention must be given to the natural flow of water. Alterations to drainage patterns can lead to excess runoff, causing damage to lower land and potentially giving rise to claims in nuisance. This article outlines the obligations of developers and landowners, the concept of a lawful point of discharge, the law relating to private nuisance and potential remedies available under Queensland legislation.
Waterflow Requirements in Property Development
Developers of upslope land must ensure that their works do not disturb natural drainage patterns in a way that causes harm to neighbouring properties. Appropriate drainage systems must be incorporated to direct stormwater to a lawful point of discharge. This responsibility also applies to any landowner whose property is situated uphill from another.
Identifying a Lawful Point of Discharge
The Queensland Urban Development Manual (QUDM, Fourth Edition) describes a two-step test to determine whether a discharge location is lawful. The point of discharge must:
- Be under the lawful control of the local government or another authorised entity, with permission to discharge. This may include reserves, park areas, drainage corridors, easements, road reserves, or natural waterways.
- Not cause an actionable nuisance or environmental/property damage to existing or future neighbouring landowners.
In Brisbane, the Stormwater Code (Part 9.4.9) of the Brisbane City Plan 2014 further requires that a lawful point of discharge be demonstrated whenever a development has the potential to alter stormwater flows. If peak flows increase, the applicant must show how stormwater will be managed and safely directed to an appropriate discharge point.
Private Nuisance at Common Law
Private nuisance concerns interference with an individual’s rights to use and enjoy their land. Stormwater runoff can constitute nuisance where natural flows are altered or intensified.
The Gartner v Kidman Principles
The High Court’s decision in Gartner v Kidman (1962) 108 CLR 12 established key principles:
- A higher landowner is not liable merely because water naturally runs downhill.
- Liability arises where the higher owner’s actions concentrate or increase the flow beyond what naturally occurs.
- Whether a use of land is “natural” depends on all of the circumstances, including the purpose of the land use and the manner in which water flow is altered.
- A lower proprietor may recover damages or seek an injunction where the higher landowner has unlawfully altered natural drainage.
Corbett v Pallas: The Five-Step Test
Moreover, in Corbett v Pallas (1995) 86 LGERA 312, the Land and Environment Court of New South Wales applied a structured approach to determining whether stormwater runoff constituted nuisance:
- Material damage must result from increased flow due to changes made to the defendant’s land.
- The plaintiff does not need to prove unreasonable use by the defendant.
- If landform changes relate to a specific type of land use that could be a defence, the burden shifts to the defendant.
- Unreasonable use is not a required element, but certain land uses may constitute a “natural” use.
- Whether a use is “natural” requires consideration of all of the circumstances and reasons for altered water flow.
If sufficient evidence exists to satisfy these factors, you may have grounds for a private nuisance claim.
Unlawful Deposit of Prescribed Contaminants
Section 440ZG of the Environmental Protection Act 1994 (EP Act) makes it an offence to unlawfully deposit prescribed water contaminants in a way that allows them to enter waterways, road gutters, or stormwater systems.
As per section 440ZF of the EP Act, contaminants include:
- Gases, liquids, or solids
- Odours
- Organisms (alive or dead)
- Energy forms such as noise or heat
- Combinations thereof
Schedule 10 of the Environmental Protection Regulation 2019 further lists contaminants such as sediment, soil, gravel, construction materials and plant matter (e.g. mulch or lawn clippings).
Should you be able to provide evidence of such contaminants entering stormwater from the adjoining property, this may constitute a breach.
Proceedings in the Planning and Environment Court
Sections 505 and 506 of the EP Act provide mechanisms for affected individuals to seek orders from the Planning and Environment Court (P&E Court).
Section 505: Remedy or Restrain Offences
A proceeding may be commenced by anyone whose interests are affected.
Section 505 of the EP Act provides:
“(1) A proceeding may be brought in the Court for an order to remedy or restrain an offence against this Act, or a threatened or anticipated offence against this Act, by—
…
(c) someone whose interests are affected by the subject matter of the proceeding; or
(d) someone else with the leave of the Court (even though the person does not have a proprietary, material, financial or special interest in the subject matter of the proceeding).
(2) In deciding whether or not to grant leave to a person under subsection (1) (a) , the Court—
(b) must be satisfied—
(i) environmental harm has been or is likely to be caused; and
…”
Section 506: Interim Orders
Pending the outcome of a section 505 proceeding, the Court may grant interim orders to stop harmful activities or require corrective action, even where:
- The offending activity is not ongoing, or
- There is no imminent risk of substantial environmental harm.
If you can demonstrate an offence such as unlawful environmental nuisance or depositing prescribed contaminants, these provisions may support a P&E Court application.
Are you facing a stormwater nuisance issue? Milne Legal provides advice and represents clients in relation to a range of town planning and environmental law matters, including stormwater nuisance. 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.