You may not need it.
Whether or not a Legal Point of Discharge (LPOD) exists has been for a long time, a very grey and murky area. The consequences of this ambiguity have meant stalled projects, refusal of development applications, cost over-runs and quarantined development sites. We have heard of some developers even needing to store or pump out stormwater!
With recent changes to how LPOD requirements are determined, it might be that you do not need discharge consent at all.
Different Council’s apply different rules and whether a LPOD is achieved often comes down to the subjective and discretionary views of the officer assessing the Stormwater Management Plan. For instance, many Information Requests would ask for the establishment of an easement over the downstream property to secure discharge rights or alternatively, require the developer to obtain discharge consent from the downstream owner accepting the discharge. Many owners see this as an opportunity for a cash grab or refuse to engage entirely.
The reason for the ambiguity was primarily due to how the Queensland Urban Drainage Manual (or QUDM) set out the LPOD tests. There were two tests:
1. Stormwater must be discharged to land owned by Council or other statutory Authority (park, drainage or road reserve); and
2. Discharging the stormwater to that location must not cause an actionable nuisance.
Where test 1 was not achieved it was almost always interpreted (or misinterpreted) to mean all development requires a formal LPOD. If the discharge was into private property, it was further interpreted to mean an easement or discharge consent was required from the downstream owner for LPOD to be achieved. Where these could not be obtained, projects stalled and development applications refused.
The good news is that QUDM 2016 has been revised to include a ‘do you need it’ test which reads:
“Will the proposed development alter the sites stormwater discharge characteristics in a manner that may substantially damage a third party property?”
If the answer to that test is NO, then no further steps are required to achieve a LPOD. So essentially, if discharge from the proposed development does not create a nuisance, then the discharge is lawful. No consents required. No easements required.
The addition of this test reinforces that it is the responsibility of the developer to prove no nuisance, rather than the Council’s responsibility to assess and condition works to prevent a nuisance. A subtle but very pertinent point.
At PEAKURBAN, we have and are currently working on several projects where discharge is into private property. Proving no nuisance is very site specific and usually involves an assessment of several (or all) of the following aspects of the discharge:
- Concentration of flows;
- Diversion of flows;
- Downstream land use (cropping, grazing, flood affected).
- Peak flows;
- Frequency and duration of flows;
- Change in volume of flows;
- Velocity of flow.
Only one or two of these aspects might be important or relevant on any specific site – not all can be (or needs to be) addressed.
The key message here is that the new LPOD test is more reasonable and less ambiguous than earlier tests.
No longer should we see generic development approval conditions requiring easements or discharge consents from downstream property owners if it can be proven that the discharge does not cause nuisance or substantial damage to downstream property.
To avoid project delays, refusals and cost overruns, it is now more important that the analysis for ‘nuisance’ is undertaken properly, informed by site specific analysis utilising professional, skilled engineering judgment.