A stormwater drainage easement is an area of privately owned land that an owner has granted permission for others (usually Council, its contractors and agents) to construct stormwater drainage infrastructure, whether or not any drain exists.
Stormwater drainage easements have existed in Queensland for many decades if not centuries. They are a legal document and plan that form part of a private property land title. The easement usually only covers part of the property.
Easements are generally made at the time the property is first created. This can be through subdivision or by “acquisition” where the land title is amended later. The land owner is the “grantor” and the “grantee” is usually the Council for the area.
A stormwater drainage easement is an area within a private property where Council can do work related to stormwater drainage. The owner can enjoy the land but cannot do anything that would impede that drainage or the rights of Council.
Having a drainage easement does not mean there is any drainage infrastructure. It means that a drain could be constructed on your property in the future, at Council’s discretion.
Council can come back at any time to do more work, like adding more drainage infrastructure or changing the land and flow of stormwater.
Due to the age of easements and Council amalgamations, there may be several documents for the same easement. These documents may use different legal terminology and grammar but have the same intent.
The easement document generally gives us the right to carry out works on your property, but this will be done at our discretion.
The easement plan shows which area we can install drainage infrastructure. It does not show where stormwater will flow (this may be both inside and outside of the easement).
We may need to enter your property and complete work outside of the easement boundaries. Most easement documents allow us to do this, providing the constructed drainage infrastructure is inside of the easement area.
Maintaining the easement
We will maintain Council owned infrastructure that has been designed and installed as part of the drainage network. For example, pipes and concrete headwalls.
We will not maintain infrastructure related to drainage of the property itself, like roof water pipes or subsoil drains.
Maintenance of the easement area including open drains and creeks generally remains the responsibility of the property owner, this includes all vegetation management.
Owners must keep the easement free from shrubs and trees and should mow the area if possible as this will help the flow of water.
“Cleaning out” a drain on private property is not something we would do, unless we decide it is necessary to reinstate hydraulic capacity (the flow of water).
Open drains in drainage easements can lead to some ponding of water and sometimes scouring and siltation. We are not responsible for carrying out work to prevent this.
We have the right to undertake any work deemed necessary. If we have cleared a drain previously, there is no obligation for us to do so again. For example, we might clear a drain if it is causing an issue with a Council asset (like a road), this does not mean we will maintain it regularly.
You can complete work within the drainage easement area, e.g. improve its amenity or make it easier to maintain, but you must get approval from us first.
A reasonable request from owners to arrange work themselves, like cleaning out or tidying up an easement area, is likely to be approved if it does not destabilise the area, and subject to other environmental or planning and development constraints.
You must not build any structures in the easement area but you can put fencing across the drainage flow path at the property boundaries. This fencing must not stop the flow of water. All fencing, and any damage caused by the flow of water, is the responsibility of the property owner.
If the easement area includes a natural creek, it is likely that natural processes will occur. These include:
fallen or dense vegetation.
It is unlikely that we would approve intervention to natural processes.
What can happen if the owner does not comply with the easement conditions?
You must make sure the water flow capacity of the drain is not reduced by any action or inaction. For example, you cannot:
construct any buildings or structures in the easement area
add any fill or complete earthworks (without formal approval), or
allow the easement to become overgrown.
If you fail to comply with the easement conditions, we have the legal right to rectify the situation and apply any costs to the land (this will be charged on your rates account).