Private Storm water issue (Brisbane City Council)

Hi gang,

Excuse the essay...

We have recently begun site prep work for a new construction and completed the cut and fill last week. The block sloped about ~3m over 40m length, so the cut was about 1m into the existing level. No development application was required to be lodged, and we have council approval to begin construction.

We were surprised to find a very dodgy looking private storm water pipe (for roof water) running into our block from what appears to be the neighbours home directly behind us. It is only 6" under the ground, so there is no way it could have ever been certified in the first place. Due to the gradient of the land, it runs now directly into our backyard.

We did all the standard dd investigation when purchasing the block including DBYD, a discussion with BCC town planning and our own town planner, and also had to undertake a sewer realignment so we had professional plumbers digging around the area too.

There is no easement, and we have spoken to council (BCC) and the certifier that certified the neighbours' build initially (it was constructed 12 years ago). The council has absolutely no records of a stormwater pipe running through our block, and the certifier has stated that the plans they certified required stormwater runoff directed to the front of their block, not through the rear.

We have made a complaint to the council, and they have wiped their hands of it, and basically told us it is a civil matter.

From every bit of research we have done, there is no documented evidence or permission for a pipe to be running through the block, and his house appears to have been completed without complying with the certification.

As such, we have approached this neighbour, in what we think it an attempt to do the right thing, offering to share the cost of trenching and connecting a pipe, along with giving them our documented permission to use our block for the runoff. Probably a few grand max split between us.

His response was basically "**** off", not our problem.

We have tried to do the right thing, in light of the fact there appears to be no cut and dry direction to how to treat this matter (he doesn't appear to understand he could be in the wrong and responsible for the entire cost), this neighbours' response really irked me so we are trying to decide what to do now.

Given the pipe shouldn't be there and appears to have been illegally installed, are we within our rights to basically say "well OK, we are blocking up this pipe, and will not give you permission to use our land to find a Legal Point of Discharge going forward"? I recognise this would possibly end up making our life difficult too, but I'm more interested in whether this would be acceptable or not. We always try to do the right thing by neighbours, but it is good to know where we stand.

We are waiting for our solicitor to come back to us with some advice, but I thought this was an interesting one that people may have come across before, or people may come across going forward so it may be of assistance to others.

Cheers

 

Council is somewhat right that it is a civil matter.

your neighbors, as you wrote are benefiting from storm water discharge to your land.

leaves you with few of option.

1. go cowboy.. get rid of pipe and seal the end of pipe
2. Get Registered surveyor in, get a quote ,document every thing,and send registered letter to neighbor explaining issue and cost.
3. speak to @RPI ,

 

I guess the crux of my query is "are we responsible", or "we broke it we fix it" which is his argument.

Is there some provision or law we don't know about or can't find that says "if its there, legal or not, documented or not, its my problem"

The issue is it's only going to be a few grand maximum to address, but the response was so frustrating I would be willing to burn an hour or two (understatement??) of a solicitor's time to answer it is likely to be his issue, not ours. Especially if it means we can actually demand he compensate us for using our land to get a legal point of discharge after being such a clown about it.

 

short answer is it is your problem ATM.

if i was you , this is what i would have done, as i said above (you may not agree)

• get registered surveyor in. document location of pipe and put that on plan
• get trade in to give you a quote of removal and sealing it off.
• write a registered letter to neighbor explaining cost and work required.
• if no response, get rid of pipe and seal the end. let him handle his storm water discharge.
• if **** hits a fan and you end up in court, you have proof of your action
• speak to solicitors.

there is an excellent thread about "litigation or not" by RPI. you may want to read that as well.

 

• Cut it off at the boundary.
• Cap it off.
• Forget about it.

 

It's probably a dodgy illegal connection. However I remember hearing about something called an implied easement. If you block was divided from theirs, then they might have some legal to force easement?

I'm surprised council consider it a civil matter. Surely they care about a modern pipe matching any approved development?

 

Job done!
There's no easement for that. His pipe on your property. Simple.
Don't waste your time and money. Bag of rapid set at the boundary and keep going about your business.... Oh just check the fence is on the boundary first!

And 6 inches is miles of cover! Lucky to get an inch these days

 

We are running one of these at the moment except that the pipe was only discovered during a particularly nasty rain event a few months back when it leaked all through our clients property and did substantial damage to the inside of the house.

Legal opinion - Dirty letter from your solicitor should sort it.

Practical opinion - do what piston said (could have some legal issues if blocking the water caused damage on theirs or neighbouring properties. if you cut it without capping it and water flowed onto your land that would be old school legal nuisance by their property to your property)

 

So there seems to be a consensus that its unlikely this pipe is legal.

This implied easement/private agreement thing is the only concern I have, but I'm told there is no agreement lodged with council, nor is there anything with the certified documents (as discussed with an employee of the company that certified the house in the first place). Is there any other way this could be legal/my responsibility?

We are going to set up the infrastructure during the trenching anyway, but it will depend on how this turkey behaves in the near future as to whether we let him use it. Based on how much of a clown this guy has been, especially since we offered to pay for half of what is essentially all in his benefit and completely to our detriment, we will not only be demanding he pay for the entire work, but also some compensation to attain the use of our block. We normally just try to deal with this sort of stuff as amicably and simply as possible, but his attitude was so appalling, we are willing to investigate bending him over.

 

If you're building a drain down that side of the property, put a pit towards the back with a connection point facing the rear boundary. After having cut and capped his service (just to peace him off - do it before a major rain event), then have them approach you to hook up.

 

That is exactly the plan. We are building the infrastructure during trenching to allow this connection. We need to do some more research into the legality of his SW pipe, looking at certified plans etc. If we attain indefensible evidence it shouldn't be there, we then demand he pays for it, along with our permission to use the infrastructure we set up.

If not, we fill it in, and it's his problem.

This is NOT what we wanted. We believe our offer was more than fair.

We just need to get a better picture of the legality, but the consensus of everyone we speak to, including council, town planner, certifier, two separate plumbers we work with, my solicitor mate, and people here, appears to be we are within our right to cap it off and let them try to sue us. It would be hard for them to really get any great wins considering we initially offered to share the cost of something only they benefit in and they basically spat in our face

 

Don't connect his pipe into your pipe out where it may have an impact on your service. If the flow from yours plus his is to much for the one pipe it'll back up.make sure yours is stand alone to his, or at the most downstream point near the main so that it can handle the flows. You don't want to be Mr nice guy and still get screwed
and keep a note in your diary the day you visited him and what you told him.that way you have a record if need be in the future

And please take some photos of his gutters overflowing in the next decent storm

 

Hi Bob, we wouldn't be allowed to anyways from a building certification standpoint. The plan is to run a completely separate pipe to allow for his flow. This means we are future proofed for any issues. If he plays ball and coughs up, we will allow him to connect, if not, we fill it in.

We currently have set up a flexipipe connection to the front of our block so it doesn't affect the build.

This gives us time to ensure there is no trace of agreements, and the certification is definitely flawed, and that we are in fact, completely in our right to go ahead and fill in his pipe.

It appears however we cannot gain access to the certification documents from BCC without permission of the owner. Do you guys know if there is a way around this? Surely in dispute this should be available to a party requesting it?

 

It sounds like your going above and beyond. Document all the work you have done researching and being knocked back as you are not the owner, keep dates and names of all phone calls and info
I think you've done more than enough.

 

Thanks Bob,

For the dollars involved in actually doing this job, (forgetting any perceived value reductions in our block etc), we really just wanted to get this done and move on. At the end of the day we have a sewer manhole in the rear of this block, so it's not like it is going to stop us putting a pool in there etc, and no easement etc would be required.

For us it is now a matter of determining basically clear as day that we are in the right, and hopefully accessing the certification documents will prove this.

 

I think it's already clear you are in the right. I vote for "bend him over". People who summarily dismiss you when they don't have a legal leg to stand on, and you're trying to be a nice guy and offer more than you have to, really get up my nose.

 

Just a simple question do you intend to live in the new location?,and if yes this may blow out into something that just gets worse over time,or bunnings have rapid set concrete for below ten bucks when on special,money talks and bull#### walks..

 

We do not intend to live here, however we were planning on keeping this property as a rental, and have found it's always easier to have decent relationships with neighbours.

We already have some other turkey on a different site threatening to sue us because "we didn't do an environmental impact study" when we built, and his kitchen is losing a bit of sunlight meaning we are costing him financially as he has to turn his kitchen light on a little earlier hahaha.

I have a number of bags of rapid set at home, but I still am not 100% certain we are legally entitled to do this. Also, if we do, our problem is not solved, as his roof water will probably still end up in our back yard, however this would then be a council problem I believe.

Until I am, we have the temp fix.

 

If you were Johnny numbat digging in a vege garden garden and busted his pipe then planted your garden and years later it blocked.what would happen then? He would have to get it re laid in his property once he worked out what was going on, at his expense for a plumber. you've done him a favour so far

 

Update on this - After confirmation from our solicitor that our position is strongly supported by the law, we asked them to present the neighbour with a legal letter highlighting such.

This seems to have done the trick.

The initial response of the neighbour was so arrogant and rude, but he seems to have calmed down a bit now, and is asking us "why the communication lines went down" initially???

After a long winded email apologising for our position, he has asked to take us up on our initial offer of bending over and sharing the costs of letting him use our block.

All we initially wanted was a quick and amicable solution, and were prepared to bend over backwards to do so. However the infuriating response of this neighbour, coupled with further research by us into the actual burden we would be creating for ourselves means this is no longer going to be the case. We will not be allowing him access to our block, and he is going to have to pay to discharge his storm water elsewhere.

It has certainly been a time consuming and frustrating experience, however a good opportunity to build a relationship with a solicitor that we will not hesitate to refer any other issues to.