What Are Your Rights Under The Water Act 1989 (Vic)?
By Stephen Williams, Solicitor, Lovegrove Solicitors.
Disputes between adjoining properties over the flow and drainage of water are common, acrimonious and often protracted. However, being aware of your rights and how to enforce them is an effective means of shortening the length and cost of the dispute as well as ensuring that you obtain a favourable outcome. Given that the focus of this article is on the flow of water onto other properties, we will consider what your rights and obligations are under the Water Act 1989 (Vic) (“the Act”).
The definition of flow in relation to water extends to the “discharge, release, escape, percolation, seepage and passage, and includes both surface and underground flow.” This definition of flow is sufficiently broad to permit a wide variety of claims, including those involving moisture damage to footings and walls.
The Act does not provide a blanket prohibition on the flow of water onto adjoining properties. To do so would deny the reality of the landscape that we live in. Accordingly, the Act permits the flow of water onto adjoining properties, where that flow is ‘reasonable’.
Where the flow of water from land is not ‘reasonable’ and causes damage or injury, the owner of that land will be liable to the person who has suffered the damage or injury (see section 16).
In determining what is reasonable, section 20 of the Act provides a list of factors which must be considered, including:
- whether the flow, or the act or works that caused the flow, was authorised;
- the extent to which conditions or requirements imposed the Act were complied with;
- whether the flow conforms with any guidelines or principles published by the Minister with respect to the drainage of the area;
- whether the likely impact of the flow on drainage in the area was considered;
- uses to which the lands concerned and any other lands in the area are put;
- contours of the lands concerned;
- whether the water was-
- brought onto the land from which it flowed; or
- i. collected, stored or concentrated on that land; or
- ii. extracted from the ground on that land- and if so, for what purpose and with what degree of care this was done;
- whether the flow was affected by any works restricting the flow of water along a waterway; and
- whether the flow is likely to damage any waterway, wetland or aquifer.
Liability can also attach to an owner of land who interferes (or negligently interferes) with the reasonable flow of water in a manner, which is ‘not reasonable’ and causes damage or injury.
In BE and D Mawby Pty Ltd v Bingham (Real Property) [2007] VCAT 813, a case involving a flow of water which was caused by motor vehicle colliding with fire hydrant. Senior Member Davis accepted that the “amongst the circumstances which should be considered in determining the reasonableness or otherwise of the flow is the degree of blameworthiness or lack of blameworthiness of the person or persons alleged to have caused the flow.” The Respondent driver was found to have caused a flow of water which was not reasonable within the meaning of section 16 of the Act and was ordered to pay damages.
The above case demonstrates the flexibility of the Act in applying to a wide-range of factual circumstances. At the other end of the scale is damage caused by vapour, moisture and dampness.
Additionally, liability can also arise where an agent of the owner causes interference to the reasonable flow of water. In that situation both the owner and agent/servant may be liable for the damage or injury caused.
Disputes under the Act must be heard and determined by the Victorian Civil and Administrative Tribunal (“VCAT”), except where the matter involves a claim for personal injuries (see section 19 of the Act). Where the Tribunal is satisfied that damage has been suffered, it may, pursuant to section 19 of the Act order:
- an interim or final injunction (including one to prevent an act that has not yet taken place);
- payment of a sum of money awarding damages in the nature of interest;
- make an order that is merely declaratory;
- the continuation, removal or modification of works; and
- payment of the costs of the removal or modification of works.
This article has not addressed the full ambit of the Act and does not discuss other relevant issues such as drainage or water supply rights over another person’s land. It is important that you seek advice from experienced legal professional for further advice in this area.
By Stephen Williams, Solicitor, Lovegrove Solicitors.
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© Lovegrove Solicitors 2013
