Brendon has over 18 years’ experience practicing in the field of environment and water resources. His vast experience in local and regional scale projects includes water balance modelling, hydrologic modelling, 1D/2D hydraulic modelling, flood mapping in GIS, conceptual / detailed design, environmental management and permitting, erosion and sediment control, water quality modelling, drainage assessment and … Continue reading PEAKURBAN welcomes Brendon Bolt to the Water & Environment Team.
Can’t get stormwater discharge consent? You may not need it.
Posted at 2 Feb 18, 09:09
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.
PEAKURBAN expands into Water and Environment!
We are delighted to announce that Kelly McKendry has joined PEAKURBAN as Director of our newly created Water and Environment Team! Kelly has over 18 years’ experience in stormwater quality and quantity management as well as flood modelling. Notably, Kelly recently managed her own consultancy and is highly regarded in the industry having completed many … Continue reading PEAKURBAN expands into Water and Environment!
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Launching PEAK Ai – Improving Project Design, Planning and Execution
The engineering and construction industry is at the cusp of a new era, with new applications and tools that change how companies design, plan and execute projects. At PEAKURBAN we are always trying to maximise the value and improve the level of service we offer to our clients. Quite often this involves developing smarter infrastructure … Continue reading Launching PEAK Ai – Improving Project Design, Planning and Execution
Changes to the Security of Payment Act
By Troy Schultz, Principal Engineer, PEAKURBAN At PEAKURAN, we aim to stay on top of key changes so that we are equipped to continue protecting our client’s interests. You may be aware that the Building Industry Fairness Act 2017 (Qld) (BIFA) commenced on 17 December 2018. This replaces the Building and Construction Industry Payment Act … Continue reading Changes to the Security of Payment Act
Managing Costs and Value in a Slower Market
By Andrew Ngo, Principal Engineer, PEAKURBAN There’s a lot of media articles about slower sales and a tighter credit market across the country, especially in Sydney and Melbourne. Having been through a couple of ‘challenging’ times previously, this inevitably affects market confidence with developers attentions more sharply focused on finding cost reductions and optimising value … Continue reading Managing Costs and Value in a Slower Market
PEAKURBAN Turns 2
It’s hard to believe that it’s been 2 years since we opened the doors at PEAKURBAN. You never really know how things will turn out but the journey thus far has been both exciting and fulfilling. We started PEAKURBAN believing that the old way of doing business (at least in engineering circles) was fast disappearing … Continue reading PEAKURBAN Turns 2
PEAKURBAN Planning and Survey
We are delighted to welcome Tim Connolly (Director – Planning) and Nathan Wilson (Principal Planner) to the PEAKURBAN Planning and Survey team. Tim has over 30 years’ experience in statutory and strategic planning and has worked on many large and complex projects including Warner Lakes, Riverbank, Riverparks, Park Vista, Capestone, Brentwood, The Meadows and Ridgeview. … Continue reading PEAKURBAN Planning and Survey
How to Get Your Survey Plans Sealed Earlier
A key milestone for any urban development project is plan sealing, that critical event that facilitates registration of titles and settlements, and the trigger for project revenue to be realised. In talking with several developers, they describe an increasingly arduous and frustrating process of back and forward, multiple inspections, delays and inefficiencies. Whilst there’s always … Continue reading How to Get Your Survey Plans Sealed Earlier
Can’t get stormwater discharge consent? 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! … Continue reading Can’t get stormwater discharge consent? You may not need it.
Conversion Applications – Get the credits you are entitled to.
In talking with several developers recently, it seems that the issues around trunk and non-trunk infrastructure and what’s creditable v. non creditable is alive and well. A few developers that we’ve spoken with are quite frustrated in having received development approvals imposing conditions that require them to deliver (without credits) what they believe to be … Continue reading Conversion Applications – Get the credits you are entitled to.
Infrastructure Agreements: Negotiating the Right Deal.
By Andrew Hunter, Civil Engineer at PEAKURBAN Negotiating the right deal in an Infrastructure Agreement (IA) is critical in ensuring the commercial viability of a project. On too many occasions we have seen IA’s that are one sided, impose excessive infrastructure standards and as a consequence result in works or financial contributions that stall projects … Continue reading Infrastructure Agreements: Negotiating the Right Deal.
Is Poor Contract Administration Costing You Money?
By Ryan Ashworth, Civil Engineer at PEAKURBAN Poor contract administration can lead to lower development profits, protracted disputes, missed settlements and sub-standard infrastructure. Whether it’s a lack of site experience, a poorly constructed contract or just a lack of understanding of what’s required, it seems to be a common problem we hear throughout the development … Continue reading Is Poor Contract Administration Costing You Money?
Engineering value in a tough market – the site acquisition challenge
By Andrew Ngo, Principal Engineer at PEAKURBAN 2017 so far has been an intensely competitive year when it comes to buying development sites. Despite this, over the last couple of months we’ve helped four clients successfully acquire new projects – three residential development sites (1,830 lots) and one retirement project (145 sites). So, what have … Continue reading Engineering value in a tough market – the site acquisition challenge
Giving up too much land?
A number of clients have come to us recently raising concerns about losing too much developable land, due to easements and wider infrastructure corridors being imposed by Authorities. The reason, they advise, is for future maintenance requirements. What many clients may not be aware of is the maintenance method of “pipe bursting” which in many cases, means the … Continue reading Giving up too much land?