Drain away from the street without an easement

Your DA approval just arrived.

And buried in the conditions is a drainage easement across the downhill neighbour's land.

The neighbour isn't keen. Now your project hangs on a conversation you were never meant to have.

Does this sound familiar?

Here's why it keeps happening.

Higher land has a natural right to drain onto lower land. Gartner v Kidman (1962) established this. No easement required. The lower owner has always had to accept natural overland flow.

But development changes things.

Build townhouses. Cover the site in roofs and paving. You've now got heaps more runoff than nature ever put on that land. Under Corbett v Pallas (1995), that increase is what triggers nuisance liability. Once you're sending more water onto the lower land than it naturally received, the lower owner doesn't have to accept it.

That's why council reaches for the easement condition.

But there's a way through. Shall I show you?

Design the detention system so your post-development peak flows stay at or below pre-development levels. The natural runoff right covers it again. No increase in burden. No nuisance. No easement.

Pretty useful principle to have in your corner.

We're working through exactly this on an LMR SEPP townhouse right now. Sloped site. Drainage falling to a downhill neighbour. The detention and infiltration design demonstrates equivalent flows at the boundary. That hydraulic evidence is what the legal argument turns on.

Getting the stormwater engineer across this at concept stage is pretty important.

After consent, it's a much harder argument.

Worth the fight with council.