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The High Court has issued a helpful decision in Atkinson v Waipa District Council for councils responding to claims of council liability for drains on private property.
Background
The decision deals with a long-standing dispute between the property owner and the Waipa District Council (Council) concerning use of a drain which is located on the property but forms part of the council stormwater system. The Atkinsons accepted that the drain was on their property when they purchased it in 1999 but claimed that the volume and velocity of water passing through the drain had increased over time, causing erosion and property damage. They argued that the ongoing use of the drain was a nuisance and that the Council was otherwise liable for negligence or under Rylands v Fletcher. They sought a mandatory injunction to prevent Council using the drain and damages totaling $2.5M.
The Council maintained that the drain is a private rural watercourse authorised to receive stormwater, with maintenance the owners' responsibility.
Statutory framework
The Court found that on the evidence, the drain was connected between 1970 and 1985, before the Atkinsons purchased the property. During that time, section 221 of the Municipal Corporations Act 1954 (MCA) and section 448 of the Local Government Act 1974 (LGA 74) empowered councils to lead stormwater into "watercourses", a term broad enough to capture the drain in question.
That legislation also empowered the Council to construct a drain on private land provided certain requirements were met, including prior written consent from the owner. Although no record of written consent was found in this case, the Court considered it inconceivable the connection occurred without following the statutory process.
The legislation did not require that ownership or control of the drain would pass to the Council. Rather, sections 224-228 of the MCA and sections 459-462 of the LGA 74 made it clear that the landowner was required to maintain the drain and Council could require the landowner to do a range of things, including cleaning, repairing, or altering the course of the drain.
The Court largely upheld the Council's position that this was a private drain, that Council had statutory powers to use the drain as part of the public stormwater system, and the property owner was required to maintain the drain.
Decision
The Court found that, given the Council's statutory powers, something over and above Council's use of the drain as part of the stormwater system would be required to establish nuisance, such as flooding to other parts of the property caused by excessive volumes of water being directed to the private drain. There was no such evidence in this case.
The Rylands v Fletcher cause of action was found to be misconceived as Council did not "store" stormwater that was then escaping to the private property. Rain was entering and exiting the network via the drain.
The negligence claim also failed given Council's statutory powers to discharge stormwater through the drain.
Key takeaways
The decision helpfully traverses relevant legislation applying to longstanding stormwater drains on private property and provides councils with some comfort against private law claims, where statutory processes have been followed and in the absence of significant flooding damage.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
