Private rights of drainage

Discussion in 'Legal Issues' started by Timjr, 17th Feb, 2020.

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  1. Timjr

    Timjr New Member

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    Hi all,

    We are looking at purchasing a property in Victoria and have chased down the title documents which have shown a nice surprise of a private rights of drainage to the neighbours property issued when the property we are looking at was carved off in 1914. It's in a very unfortunate position on the block. My main question is do we have the right to modify the easement if we replace with equal utility. E.g. if we changed it run down the side of our property and along the back fence. This would all be at our expense of course but I want to make sure that our future neighbours (for unknown reasons) could actually prevent us from doing this?

    Bonus question if you are feeling particularly helpful. The property we are looking at also has a right of carriageway to the same neighbour (running along the back which is where we would also like to re-establish the drainage easement). This carriageway has double gates into their property at one end (suitable for a car) but has been fenced off with a single pedestrian gate at the other end - it is not currently possible to drive a car but still possible to walk out to the side street (which is arguably of little benefit when they can do this from the footpath out the front). Does not using the carriageway as a carriageway (or vehicle way) constitute abandonment in any manner or does using it as a walkway suffice?

    Many thanks for any help you can provide!
     
  2. Scott No Mates

    Scott No Mates Well-Known Member

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    Gotta site plan showing what's going on?

    So your lot is benefitted by the easement? Is it in a difficult spot on your block or the neighbour's block? What is the purpose of the drainage easement - stormwater, sewer or just drainage?

    What do you mean that you want to reestablish the drainage easement - was it relinquished?

    Right of carriageway - how wide is it? Does it lead to a street? Who has abandoned the ROW?

    @lixas4 would chip in.
     
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  3. lixas4

    lixas4 Well-Known Member

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    Drainage easement:
    Given the age, the easement will probably not be in favour of council, but in favour of the abutting property. Is there a pipe in the easement? If there is, then if you want to re-align (move) it, you should talk to a civil engineer and a land surveyor. You will need to do a survey of the pipe and surrounding land, then design where it can go and confirm adequate fall in its designed position to allow it to still drain the water, then the surveyor will draw a variation of easement plan (or it can be done with a subdivision if thats what you are planning). Cant tell you the success of doing this without neighbours consent, would need to check with a property lawyer.

    Carriageway easement:
    Carriageway means lots of things, not just using cars. I believe walking is included. Abondonment of an easement needs 30 years of no use, and given there is still a gate, it would be hard to prove. Abandonment of a 'carriageway' easement also requires council consent.
     
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  4. Timjr

    Timjr New Member

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    Thanks both for the replies. If I wasn't clear the drainage easement benefits our neighbour. I'm not to sure whether there is actually any pipe in the easement but would rather assume there is at this stage. The pipe runs almost directly across our property from one side boundary to to the other and then directly down. Since we would just be reversing this (run down the side boundary and then across) I'm pretty confident the fall should be okay. I'll speak to a property lawyer and see whether the neighbour would have any possible grounds to oppose this considering it will have minimal impact (apart from a short period without sewerage).

    I didn't think there would be much luck with the carriageway - it was on the plans so not a surprise like the sewerage easement was. Just thought I'd give it a go as who doesn't like free land.
     
  5. Scott No Mates

    Scott No Mates Well-Known Member

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    This will require a surrender and regrant of the easement, neighbour would have to agree, can't be any worse than the existing alignment. You would be responsible for all costs.