Legal action should only be a last resort to problems between neighbours. Trees often cause friction. Lighting fires is subject to regulation. Trespassing can include dumping rubbish. Neighbours are responsible for the costs of building or repairing fences. The Water Act covers drainage matters between neighbours. Drainage rights can be obtained over a neighbour’s land. Owners of domestic animals can be responsible for any harm they cause others, such as if your dog escapes and bites someone. Dog bites should be reported to the police or local council. Restricted breed dogs include Pit Bull Terriers. Residents can complain of noise to their local council. The use of lawn mowers, power tools, record players and musical instruments may be banned at certain times. Regulations on the music from pubs, cabarets, community halls and entertainment venues seek to balance the interests of all parties. Noise standards also cover cars, motor cycles, mini bikes, go karts and trail bikes.

Contributor

Peter Cotter

Solicitor, Leo Cussen Centre for Law

Drainage of land

Last updated

1 July 2020

Reasonable actions under the Water Act

The law concerned with the drainage of water is in the Water Act 1989 (Vic) (‘Water Act’). Under the Water 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 are considered include:

  1. whether or not the flow, or the act or works that cause the flow, was authorised;
  2. the extent to which any conditions or require­ments imposed under the Water 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 consideration was given to the likely impact of the flow on drainage in the area, considering the information that was ‘reasonably available’ about the cumulative effects on drainage;
  5. the uses to which the land concerned (and any other land in the vicinity) are put;
  6. the contours of the land concerned;
  7. whether the water that flowed was:
  1. brought onto the land from which it flowed,
  2. collected, stored or concentrated on that land,
  3. 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).

For more information, see Chapter 12.2: Appealing government and administrative decisions.

Drainage rights

You can get drainage or water supply rights over a neighbour’s land. It is 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 and drafting agreements with your neighbours, visit the DSCV website (www.disputes.vic.gov.au).

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 Chapter 12.2: Appealing government and administrative decisions, for further information).

Water offences

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).

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