The Water Act applies a reasonable test to drainage matters between neighbours. A process exists whereby you can get drainage rights over a neighbour’s land. Water offences include putting obstructions in canals or rivers which may cause others harm.
Reasonable actions under the Water Act
The law concerned with drainage of water is to be found in the Water Act 1989 (Vic) (“Water Act”). Under this 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 will be looked at include the following:
1 whether or not the flow, or the act or works that cause the flow, was or were authorised;
2 the extent to which any conditions or requirements imposed under the 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 account was taken of the likely impact of the flow on drainage in the area, having regard to the information then “reasonably available” about the cumulative effects on drainage;
5 the uses to which the lands concerned (and any other lands in the vicinity) are put;
6 the contours of the lands 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 before the Victorian Civil and Administrative Tribunal (VCAT) (see Appealing government and administrative decisions, for further information).
You can get drainage or water supply rights over a neighbour’s land. It is, however, 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 (s 234(3)).
For helpful information about reaching agreements with your neighbours, visit the DSCV website and watch the video, “What’s an agreement and what sort of things need to be in it?”.
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 (see Appealing government and administrative decisions, for further information).
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).