Stormwater easements and why council policies are wrong

Stormwater easement: you probably don’t need one.

An easement is required, under common law, when the stormwater would be a nuisance.

A nuisance is:

-       where the stormwater flow is larger than it would be naturally

-       where stormwater causes a significant interference with an occupier’s interest in the beneficial use of their land

But

-       a higher land owner does not require an easement over a lower land owner merely because surface waters flow from one to the other

-       if a more concentrated flow occurs because of natural use of the land, generally there will be no nuisance

There is a common law right for an upstream landowner to allow water to flow downstream to neighbouring properties through a natural watercourse or depression.

Therefore

-       Drainage by natural gravity (as long as the flow is not artificially increased) is not a nuisance and does not require an easement

So what?

If the peak flow rate is preserved (or reduced) from the natural drainage, there is no nuisance and no easement is required.

How does this help?

Preserving the natural flow rate is something that can be done with engineering solutions, even for the most intensive development projects.

-       Charging roofs up to the street

-       Adding detention systems

-       Making more surfaces pervious

What does this mean?

If a large portion of the site can be captured in a detention system, it’s not that hard to match natural flows. And there is no limit on the development size. A 50 storey tower could get a DA with no easement.

Not only that, for sites lower in the catchment, the natural peak comes very late in the storm. It’s a simple matter to show that developing a site without any stormwater detention can reduce the peak flow compared to the natural peak. And an easement is not required.

Thanks to my colleague Gavin Shapiro, Parter at Hones Lawyers for the handy legal tips on this one. (We got a real project over the DA line using this argument).

Call to action

If you want a bit more advice solving this problem or evaluating a potential site, drop either Gavin or me an email

gshapiro@honeslawyers.com.au

ian.warren@stellenconsulting.com.au