Drainage of land

• Reasonable actions under the Water Act

  The law concerned with the drainage of water is in the Water Act 1989 (Vic) (‘Water Act’). Under the Water Act, you are allowed to do things on your land that let water flow onto your neighbour’s land in a ‘reasonable’ manner (s 16).

  If you interfere with the reasonable flow of water or, by negligence, interfere with a flow of water in a manner that is ‘not reasonable’, you must pay for any damage caused to your neighbour.

  In deciding what is ‘reasonable’, the factors that are considered include:

  1. whether or not the flow, or the act or works that cause the flow, was authorised;

  2. the extent to which any conditions or requirements imposed under the Water Act in relation to an authorisation were complied with;

  3. whether or not the flow conforms to any guidelines or principles published by the Minister for Water;

  4. whether or not consideration was given to the likely impact of the flow on drainage in the area, considering the information that was ‘reasonably available’ about the cumulative effects on drainage; 

  5. the uses to which the land concerned (and any other land in the vicinity) are put;

  6. the contours of the land concerned;

  7. whether the water that flowed was:

     a. brought onto the land from which it flowed;

     b. collected, stored or concentrated on that land;

     c. extracted from the ground on that land and, if so, for what purpose and with what degree of care this was done;

  8. whether or not the flow was affected by any works restricting the flow of water; and

  9. whether the flow is likely to cause damage to any waterway, wetland or aquifer.

  Any legal action concerning the flow of water must, except in cases of personal injury, be taken to VCAT.

• Drainage rights

  You can get drainage or water supply rights over a neighbour’s land. It is important that you follow the procedure set out in Part 12 of the Water Act.

  Once you have decided what you need and how it is likely to affect your neighbour, discuss it with your neighbour (and the owner, if your neighbour merely occupies the land). It is helpful to put your proposal in writing.

  You must try to reach agreement with the owner of the neighbouring land. If agreement is reached, a formal document should be prepared that:

  • specifies any compensation agreed to be paid;

  • describes the access agreed to; and

  • is accompanied by a map showing the location and measurements of the proposed works (Water Act s 234(3)).

  For helpful information about reaching and drafting agreements with your neighbours, visit the DSCV’s website (www.disputes.vic.gov.au).

  If agreement has not been reached within a month of having given the owner of the neighbouring land notice of what you propose, you may apply to the Minister for Water. The minister must appoint:

  • an ‘Authority under the Water Act’; or

  • Melbourne Water,

  to decide the issue. In making their decisions, these bodies must have regard to whether:

  • any damage will be caused to the neighbouring land; and

  • whether and in what amount the payment of money will fully compensate the owner of the neighbouring land for any damage.

  If you (or the owner of the neighbouring land) are still dissatisfied, you may apply to VCAT for a review of the decision.

• Water offences

  Under the SO Act, it is a crime:

  1. to put any obstruction in any canal or river that is likely to hurt any person passing by (s 7(a)); or

  2. to destroy, damage, pollute or obstruct an aqueduct, dam, sluice pipe, pump, watercourse, pond, pool or fountain (s 9).

Drainage of land

Chapter: 6.4: Neighbour disputes

Contributor: Peter Cotter, Mentor and Lawyer, Leo Cussen Centre for Law

Current as of: 1 September 2024

Law Handbook Page: 523

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