Downstream owner’s consent is never needed
Councils are unnecessarily, and without legal justification, standing in the way of hundreds of developments involving the discharge of stormwater on to downstream land.
The State and Councils will not achieve their infill development aspirations if this continues.
The most that a Council can require is an easement over downstream land, but never a consent. There are 3 options for obtaining an easement. First, by agreement between the developer and downstream land owner. Second, by Supreme Court Order under s180 of the Property Law Act 1974. Third, by compulsory acquisition by the Council under s263 of the Planning Act 2016. Imposing a condition requiring consent obliterates statutory rights afforded to developers and to the Council itself, and the condition is unlawful using the reasoning of High Court of Australia in Beckwith v R  HCA 55; (1976) 135 CLR 569 at 574
On the procedural aspect of whether downstream land needs to form part of a development application, for a material change of use or reconfiguring a lot, the answer is always ‘no’. Neither downstream works nor drainage easements are the ‘use’ of land. The ‘piecemeal’/’Pioneer Concrete’ style of issue so often raised to oppose material change of use development has no application – Jahnke v Cassowary Coast Regional Council (Formerly Johnstone Shire Council) & Ors  QPEC 36. Similarly, the creation of a drainage easement is not ‘reconfiguring lot’.
What about the Council argument that, in order for a Council to impose, in an approval for a material change of use or reconfiguring a lot, a condition requiring a drainage easement or works, in order to have that condition ‘run with the land’ (a reference to s73 of the Planning Act 2016), the land the subject of the easement or works must form part of the development application? That argument, too, is wrong. Conditions have been regularly and lawfully imposed requiring things to be done somewhere other than on the land the subject of a development application, be they road upgrades, land dedications, and so on. Those conditions are milestone events – that must be complied with before something happens for the land the subject of the application. That ‘something’ might be the start of work on site, or the approval of a plan of survey for the land. The requirement to maintain the easement is fulfilled by the registration of an easement on the downstream land’s title. A condition in a development approval requiring its maintenance is not needed – it is superfluous.
As for development applications for operational works, they can be made over any land, without consent.
Councils have given themselves power to assess and decide the town planning and engineering consequences of development on stormwater by the inclusion of provisions in their planning schemes about stormwater. With that power comes the responsibility to determine, as the planning authority, how stormwater discharge is to be arranged in a locality.
Councils are not the gatekeepers for private property rights. How lawful access to land for building and maintaining infrastructure is to be dealt with is a matter between landowners and, if they cannot resolve their differences, a matter for the Courts. Councils cannot act in a way such as to deprive landowners of their statutory right to seek relief from a Court by mandating, by condition, a requirement to obtain consent from a downstream owner. To do so delegates to the downstream owner the right to veto development that has been approved by the Council in the public interest.
Councils ought to revisit their planning scheme codes, policies, and standard conditions of approval, to ensure that the Council is not requiring downstream owner consents, and not encroaching on the statutory rights of the owners of land to seek relief from the Courts.