More than 150mm of rain fell on Brisbane in the month of February followed by more than 300mm in March. While wet conditions are not unusual for South East Queensland, the volume and constancy of rain can create aggravation for home owners suffering from storm water issues, overland flooding and nuisance run off water problems from failing retaining walls, raised concrete driveways, neighbouring blocks or public lands.
The following information should help you to understand what is “environmental nuisance”, what are your rights if you are affected by environmental nuisance such as storm water flooding, what are your obligations as a home owner, what you can do to rectify the problem and whether you might be entitled to compensation for damage caused to your property.
What is environmental nuisance?
Broadly speaking, under the Environmental Protection Act 1994, environmental nuisance is an “unreasonable interference or likely interference with” a “physical quality of the environment”, eg land or water or buildings.
What are your rights if your property is flooded?
If the flooding that is affecting you is a result of non-compliance with a development condition for a development approval granted under Qld planning laws such as the Planning Act 2016, Integrated Planning Act or Sustainable Planning Act, you have a right to start enforcement actions seeking orders to stop the offence and restore the damage.
Before starting enforcement action, we recommend that you check what, if any, development conditions were attached to the property you believe is causing your property to flood.
If the property has a development condition that requires it to implement drainage control measures and ensure no adjacent property is adversely affected by water flow, it is possible the property is in breach of their development application, and you can ask the relevant Council to take enforcement action against the Lot Owner for failing to comply with development conditions.
Environmental Protection Act 2016
In addition, or alternative to pressing the Council to take action, you may have a personal right to restrain an offence and seek compensation under the Environmental Protection Act 2016. Not all overland flooding will be a development offence for which a Council can take enforcement action. If a private arrangement such as a ‘discharge approval’ has been reached between upstream and downstream owners where the downstream owner grants approval for the overland flow (usually for some form of consideration), Council will have no role in assessing a development offence. If a “discharge approval” has been a goodwill arrangement between neighbours, it may be revoked by subsequent owners unless there is a binding contract or a grant of easement. Enforcement of both would be a civil matter to be resolved between the parties, and Council would have no role to play. In these instances your right of remedy might be to restrain the “nuisance” being caused by the water.
Tort of nuisance
Private nuisance is the unlawful interference with a person’s use or enjoyment of land or some right over or in connection with the land.
Mere interference that causes damage may not constitute a “nuisance”. The interference has to be both substantial and unreasonable.
Any person who owns, or occupies the affected land can sue for private nuisance, and may claim compensation from the creator of the nuisance for damage or loss of value to property and/or any adverse effects on health, if the damage caused by the nuisance can be found to be reasonably foreseeable and unreasonable.
It is also possible to obtain court orders to stop or prevent the nuisance.
Based on the above, if a neighbouring property is causing significant storm water flooding to your property, causing damage or a loss of value to your property, you may have a right to claim compensation and/or seek a court order to alleviate the problem.
What are your responsibilities as an owner?
If you have purchased a property with a pre-existing nuisance you may be responsible for compensating the affected party for any ongoing damage. Prior to purchase, be sure to undertake due diligence with your conveyancer, as development conditions may be ongoing for the life of the development. A Town Planning Certificate should reveal any ongoing development conditions.
If you are the current owner of a property causing flooding to neighbouring properties, to minimize the risk of being sued for compensation you can:
1. ensure that the property’s drainage system complies with relevant building and plumbing codes, including any unresolved issues by the previous owner;
2. ensure any drainage works undertaken on your property are certified by a Registered Professional Engineer of Queensland;
3. ensure any retaining wall is built to meet the requirements of the Building Act 1975, and does not prevent the natural flow of water across the land;
4. ask your neighbor to resolve any drainage problems totally contained within their property; and
5. avoid landscaping your property or raising your driveway in a way that will direct water onto your neighbour’s property.
Is there a breach of a development condition?
Some development applications, including those for subdivisions, will include development conditions that broadly require the lot owner to ensure no adverse affects of “interallotment drainage” on existing adjacent properties. If, as a result of a development, you find your backyard filling with stormwater in a manner that has not occurred previously, you can ask your local Council to take enforcement action against the lot owner for a breach of a development condition.
Am I entitled to compensation?
If you can prove that the flooding has directly caused damage or loss (including loss of value to your property), compensation may be payable.
MDL are experienced experts in Planning and Environment law, and commercial litigation. If you are experiencing storm water flooding we encourage you to contact us to assess your options.