NSW Buildings Impeding Access to Repair Pipes in Stormwater Drainage Easement

[Robin Dodd]

Four properties have their stormwater pipes passing through 1 property as a stormwater drainage easement in the Sutherland Shire Council area. This pipe has become blocked and requires repair or replacement. However, the owners of the property have large amounts of concrete pathways, retaining walls and a swimming pool erected beside the easement.

What is the legal situation under property law regarding expenses for the repair and or replacement of this stormwater pipe?

 

[Worldly1]

Hi Robin,
Where are you located?
What types of property are they? (Individual residential properties, commercial, part of an owners corporation?)

 

[Robin Dodd]

They are all freestanding dwellings and located at Gymea Bay in the sutherland council area of Sydney

 

[Worldly1]

My memory as a layperson is that the person who has the benefit of the easement usually has the responsibility of maintaining the easement (including repairs). But it would seem to depend here on who owns the pipes (and whether its a private or public easement).

Have a look at the Sutherland Shire Council page “Stormwater Drainage on Private Property” which provides some good information and also allows you to report drainage flooding/issues from a neighbouring property.
"Stormwater run-off and drainage can be a source of problems for some residents, especially if they believe the water is coming from another property. We understand that this can create friction between neighbours, and we do our best to ensure that proper action is taken if required.
When the council will take action
Environmental Health Officers investigate and take action on stormwater drainage complaints only where it relates to the flow of surface water from one property across the common land boundary onto another property, and where the following criteria have been met:

• evidence shows that the water has caused or is likely to cause significant soil erosion or physical damage to a building on the other land
• surface water has been directed to and/or concentrated in a particular area by a man-made structure or drain
• surface water is the result of defective roof drainage from a dwelling or outbuilding.

When the council will not take action
Officers have the discretion to take no action in circumstances where:

• the surface water is natural run-off from the property (or properties above) due to the topography and isn't redirected in any manner
• surface water is flowing down existing hard surface areas such as driveways, tennis courts, concrete slabs or paved areas
• the location of a dwelling or outbuilding impacts on surface run-off
• surface water run-off occurs only in periods of exceptionally heavy rain
• surface water is a result of overflows from stormwater absorption pits where contours of land and lack of access prevent direct connection of a building's roof water to the council's stormwater drainage system
• the run-off is from new development work that is the subject of a development consent and has been constructed in accordance with that consent
• the drainage problem involves discharges from defective or blocked private inter-allotment drainage easement.

Please note: Private inter-allotment easements are the responsibility of the property owners who are burdened by and/or benefited by the easement."

Also, perhaps check if the easement is public and maintained by the Council if they own the pipes - have a look at the Southerland Shire Council page “Driveways, footpaths, roads and other public places” - "An easement created under the Conveyancing Act 1919 that benefits Council for the purpose of controlling or conveying stormwater through the property burdened either above and/or below ground. The terms of the easement allow any authorised person to gain access for the installation, maintenance, repair or replacement of the drainage structures within the easement."

Hope that helps.

 

[Robin Dodd]

Thanks for this info however as the access to the stormwater pipe is significantly impeded by the developments do we still excavate and replace even if it means removal of the developments and after the pipe replacement who is responsible for restoring the developments?

 

[John R]

Hi Robin,

Have you discussed the matter with council? If yes, what have they said?

 

[Robin Dodd]

Yes I have I spoke with their Water Engineer who advised that there should be no developments on the easement and have referred the matter to the Health and Environment Council. I think that this relates to is the current developments on the property conforming or not but does not seem to address my issue of expense responsibility

 

[David A]

Hello Robin. Did you end up getting a resolution to this issue? We have a similar problem in Bangor.
At least 4 properties are affected (potentially 7 properties). Massive volumes of water are entering our back yard each time it rains. Even when the rainfall is minimal. (we are on the low side).

It has caused significant erosion to our property and the property behind us, Including the collapse of our retaining wall and sinking/cracking of the boundary fence.

We are currently having the wall replaced at our own substantial cost.

I contacted Sutherland Shire Council on Saturday as we suspected it may be a broken, blocked underground stormwater drain due to tit evidently not being surface water and the sheer volumes of water entering our property.

Our neighbour has old council documents/mapping that display the location of easement.

The on call officer promptly attended after we reported it and referred it to his office.

Council have contacted me this morning stating that it is not their asset and the easement is the responsibility of the residents that it benefits.

There is a possibility that an in ground pool that was installed in a neighbouring property may have been a contributing factor to a damaged easement.

Where to from here ?

 

[Naomi80]

Hi David,

I noticed your entry that was written in October 2016.. We have just purchased a house with the exact same problems as you had , unbeknownst to us!

I am hoping that you have reached a resolution ! I would love to hear from you or anyone with any helpful information as what to do next ! Our backyard is flooding (with 6 houses worth of storm water up hill that are situated on the same storm water private inter allotment easement ).

We have had cctv inserted at the discharge point (one house below us) and it appears to be blocked with building waste .

Hello Robin. Did you end up getting a resolution to this issue? We have a similar problem in Bangor.
At least 4 properties are affected (potentially 7 properties). Massive volumes of water are entering our back yard each time it rains. Even when the rainfall is minimal. (we are on the low side).

It has caused significant erosion to our property and the property behind us, Including the collapse of our retaining wall and sinking/cracking of the boundary fence.

We are currently having the wall replaced at our own substantial cost.

I contacted Sutherland Shire Council on Saturday as we suspected it may be a broken, blocked underground stormwater drain due to tit evidently not being surface water and the sheer volumes of water entering our property.

Our neighbour has old council documents/mapping that display the location of easement.

The on call officer promptly attended after we reported it and referred it to his office.

Council have contacted me this morning stating that it is not their asset and the easement is the responsibility of the residents that it benefits.

There is a possibility that an in ground pool that was installed in a neighbouring property may have been a contributing factor to a damaged easement.

Where to from here ?

 

[Tripe]

In general, the servient title holder does not need to maintain any easment, unless they share in its use.

If your storm water drains are blocked on another persons land, and they don’t use them, then it would be the dominate title holders sole responsibility to pay the cost to repair them.