Water that is unable to enter the underground drainage system will find its natural way to the nearest watercourse via overflow paths. These overflow paths are typically roadways, public reserves, pathways and often through private property.
Property owners must maintain the stormwater pipes, gutters, downpipes, gully pits and any other components of the approved stormwater system on their property in good condition and in compliance with any Council requirements.
The Common Law position requires that the upstream landowner may not alter the property that would result in a change in the location, concentration, volume, velocity, frequency, duration or intensity of overland stormwater flows, such that an actionable nuisance could result. Further, the downstream landowner is bound to accept ‘natural’ overland stormwater but is not bound to accept flow which is altered as above or frequency by reason of development on the upstream land.
When constructing hardstand areas, the property owner must control stormwater in order to prevent it from flowing on to adjacent property such that it causes an actionable nuisance. It is preferable to minimise the area of water-resistant surfaces such as concrete or paved areas and driveways.
If the property has a stormwater installation, defined under the Local Government Act 2009 such as roof gutters, downpipes, subsoil drains and stormwater drainage for the premises, Council may direct the property owner to connect to Council’s stormwater drainage system, if available and practical to do so.
The Local Government Act 2009 pt 3 d 2, makes provisions for the control of stormwater, and Council is empowered to issue property owners with written notice if they are in breach of this Act.
Drainage easements are registered on some land titles to provide legal protection for underground drainage systems and overland flow paths for stormwater run-off.
Storm water drainage systems usually have an over land flow path and may have an underground drain associated with it. The underground drain is usually designed to carry a one in two year to a one in ten year storm event with the over flow from a higher intensity storm or blockage in the underground drain being carried by the overland flow path.
Drainage easements that are registered in favour of Council for the purpose of storm water drainage give Council the right to construct and maintain underground drainage systems through the easement and to maintain over land flow paths that are clear of obstructions. The area of land covered by the drainage easement belongs to the property owner but typically there are restrictions as to what can be done on the drainage easement. Such restrictions will be detailed in the Easement documents, but typically structures and anything that has potential to affect water flow would not be permitted.
If there is an easement on your property it must be maintained and kept clear of debris and obstructions to allow the natural flow of stormwater. Maintain all vegetation on the drainage easement; and obtain approval for connections to any underground drain and obtain approval for any works other than maintenance.
It is Council’s responsibility to maintain any built drainage structure that is located on a drainage easement e.g. underground pipes, inlets, open concrete channel or concrete invert.
There are two ways of connecting roof water to a legal point of discharge:
- Roof and surface water is conveyed to the kerb and channel;
- An inter-allotment drainage system in accordance with Queensland Urban Drainage Manual.
However, if neither is available, a stormwater absorption/dispersion trench may be installed three metres from any downstream boundary, with the approval of Council. An engineer's certificate will be required.
Local flooding occurs when components of the stormwater drainage system, such as pipes and gully inlets, are undersized or blocked, or when the overland flow path is blocked by a building or fence. You may be liable for damages if the building and/or fence on your property increases flood levels or the frequency of flooding to your neighbour’s property.
Overland flow between private properties usually occurs when the natural terrain is sloping.
A site has been excavated to build a concrete slab, e.g. cut and fill style construction; Retaining walls, drains or other structures have been built that result in stormwater being concentrated, diverted or redirected on to other property.
Landscaping can change the topography of a property and the way it sheds water. Ideally, runoff should be promoted towards the street, or to a drainage system if provided.
An upstream property owner cannot be held liable merely because surface water flows naturally from his land on to the lower land of a neighbour. However, the upstream property owner may be liable if the water is made to flow in a more concentrated form than it would naturally flow, such that an actionable nuisance results.
You may experience drainage problems when stormwater runs off public land or the road and it forms ponds or runs through your property. Enquiries regarding run-off from public land or the road should be directed to our Customer Service Centre on 4913 5000 or 1300 790 919.
Where there is a dispute relating to overland flow, and where the work carried out by the ‘offending’ owner is not work which is regulated under the Council’s Planning Scheme or the Standard Building Regulation, and does not otherwise constitute a contravention of any previous planning or building approval, the issue is a private one to be resolved by the owners under the Civil Law of Nuisance, and not a matter where the Council has any regulatory jurisdiction.
Landowners are encouraged to talk to their neighbours about the problem and to seek a mutually suitable solution. If this is not possible, the Dispute Resolution Centre provides a non-legal mediation service. They may be able to assist without the need for expensive legal proceedings. They can be contacted on (07) 3239 6007.
The services of a mediator may also be sought through the State Government Community Justice Program (contact the Local Magistrates Court for details). Finally, you can seek legal advice about the feasibility of taking civil action against the party creating the problem if you feel your property has suffered or been exposed to potential damage.