Responsibility for stormwater nuisance (private land)
Council receives a number of complaints each year regarding stormwater run-off and overland flow from
private land causing a nuisance to an adjoining or downstream property. It should be noted that in such
instances council’s intervention powers are limited and can only be invoked depending on the
circumstances.
Interference with path of stormwater
There is no power under any Act for a local government to require a property owner to carry out new
building work or alter building work in relation to an existing building/structure (unless the stormwater
installation for the building/structure does not comply with the associated building development approval
or condition of the approval – not all buildings/structures require an approval).
Therefore, where dwelling houses, garages, fences, retaining walls, pools, sheds and the like have been
erected and are interfering with the path of stormwater, council does not have any legal provisions to
become involved.
Likewise, where a property owner has performed landscaping (i.e. constructed gardens, mounds, cut-off
drains, path ways, etc) which alters and/or diverts the path of natural overland flow and causes a
nuisance, there are no regulatory intervention powers available to council.
These matters are civil in nature and between the parties themselves, where clear remedies under the
ordinary civil law of nuisance are available (Parliament will not usually legislate something that already
has a “clear remedy” under the common law system).
In the first instance it is encouraged that the respective parties communicate and negotiate acceptable
outcomes in good faith, in order to avoid expensive legal proceedings. The Department of Justice and
Attorney General provides a mediation service, which may assist in achieving a resolution. The contact
details are as follows:
Dispute Resolution Branch
Address:
Level 1
Brisbane Magistrates Court
363 George Street
Brisbane QLD 4000
Postal address:
GPO Box 149
Brisbane QLD 4001
Phone:
07 3239 6269 or 1800 017 288 (toll free outside Brisbane)
Fax:
07 3239 6284
Roof catchments and stormwater installations
Where a roof catchment system, such as gutters and downpipes have been installed and there is
constructed council drainage (either roadside kerb and channelling or an inter-allotment drainage
network), within the specified distance and site conditions are amenable, then legislative provisions can
be invoked to require the property owner to connect their roof catchment system to the constructed
council drainage.
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Conversely, where there is no constructed council drainage within the specified distance or site
conditions are not amenable (i.e. the property slopes downhill and away from the street and there is no
inter-allotment drainage network at the rear of that property), then there are no intervention powers
available to council. This means that council can not enforce a property owner to install an on-site
dispersion system (rubble pit) on site in such circumstances.
Building development approvals
It is important to note that it is not always necessary to install gutters and downpipes to a building,
however if they are installed, they must comply with the appropriate technical standard and be installed
so as not to cause a nuisance to adjoining properties. What is, or is not necessary is ultimately the
responsibility of the private building certifier to determine at the time of assessing the building
development application.
Primary responsibility for stormwater installations approved under a building development approval will
remain with the individual private building certifier until the approval is finalised or has lapsed (no longer
current). The certifier has enforcement powers and should take appropriate action under relevant
legislation.
Council will refer stormwater complaints for privately certified buildings that are the subject of a current
building development approval to the responsible certifier in the first instance.
As previously mentioned, there is no power under legislation for council to require a property owner to
carry out new building work or alter building work in relation to an existing building/structure when the
associated building development approval has been finalised or has lapsed, unless council can link the
required work to contravention of a specific building development approval or condition of the approval.
When a building certifier defaults
Council has co-extensive authority under legislative provisions, so if the private building certifier informs
council that they do not intend to enforce the conditions of their building development approval relating to
the stormwater installation, council may issue a notice to the property owner or builder.
The High court decision in the Pyreness Shire Council v Day case does make council obliged to follow
the matter through to its most logical conclusion particularly if the stormwater installation is causing
considerable damage to land or buildings.
Should it be established from the resultant investigation that the stormwater installation was covered by
either the building development approval or condition of the approval, and therefore the certifier had a
clear duty to act and did not, they will be reported to the Building Services Authority for appropriate
disciplinary action.
For clarification, council is unable to act if the specific building development approval or condition of the
approval does not contain provisions relating to stormwater. (In practice, this should not be an issue as
most building development approvals usually contain some condition relating to the management and
discharge of stormwater).
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