Easements

An Easement is a nominated section of public or private land that is used by someone other than the land owner to access drainage, sewer, water, gas, electricity or similar services.

Council’s preference is to discharge stormwater from a property through a gravity fed drainage system. However, due to various constraints, this may not always be possible.

When proposing a non-gravity based drainage system such as infiltration, charged or pump out on low level properties (i.e. developments that fall away from the street), evidence must be submitted to Council that an honest and reasonable attempt has been made to acquire an easement for drainage through any of the downstream properties or demonstrated that all avenues to establish an easement be impractical or unviable.

Applicants must first approach all downstream property owners wherever a drainage easement to drain the subject property could be established. Any request for a drainage easement must outline details of the proposed easement, the consequences of an alternative drainage system failing and present a monetary offer of compensation for the easement. The written request is to be generally in accordance with the proforma letter contained in Annexure N of Water Management Technical Manual. Council requires some written evidence to clarify that some negotiation has been undertaken with the property owner.

Where a neighbouring owner refuses to grant a drainage easement, the applicant must provide documentary evidence of this outcome. If the property owner cannot attain any written response from the adjacent downstream property owner, a Statutory Declaration stating the above must be submitted.

Section 88K of the Conveyancing Act 1919 allows for the compulsory acquisition of an easement over land if the easement is reasonably necessary for the effective use or development of other land that will have the benefit of the easement. There are several criteria outlined in the Act that must first be satisfied.

If you have been approached by a property owner who wishes to obtain an easement to drain water through your property, you may wish to contact Council for further information. Please also seek independent advice before granting or refusing the easement.

Please note, any costs associated with investigating or establishing the easement are the responsibility of the applicant. The applicant is responsible for negotiating with the downstream property owner to obtain a private drainage easement. It is not Council’s role or within Council’s jurisdiction to adjudicate on amounts of compensation. It is recommended that independent legal advice be sought.