Have Water Authorities Gone Too Far?

Joel Snyder
20 January 2020

As we understand it, there is a long-standing practice of water authorities entering private land to construct water or sewerage infrastructure without having the benefit of an easement or other rights to enter the land. As Victoria’s communities grow and demands on infrastructure reach all-time highs, this practice is increasing and becoming more noticeable amongst our private clients. This is because there is increased pressure being placed on water authorities to continue to roll-out their infrastructure to meet these demands.

While the Water Act 1989 provides various avenues for a water authority to recover contributions for the present-day costs of services or for new connections, it still does not resolve how a water authority can obtain the powers to lay the infrastructure on private land.

The ordinary practice used by public authorities are powers of compulsory acquisition. This typically involves the acquisition of land reserved under a planning instrument for a public purpose or where the Minister for Planning determined that a reservation is unnecessary, undesirable or contrary to the public interest. Given the demand for sewer or water infrastructure over private land, it appears however that water authorities are seeking to bypass this somewhat timely and complicated process.

It is for this reason that we believe water authorities are increasingly seeking to rely on board powers under the Water Act 1989 to continue its long-standing practice and avoid a compulsory acquisition. This includes section 133 which authorises an authority to enter land for the “purpose of carrying out any other function under [the] Act”. Our view is that these powers are being inappropriately relied upon for permanent works on private land in the absence of a suitable proprietary interest. We have been unable to identify any clear power under the Water Act 1989 for a water authority to continue this practice. The result is and will continue to be, various infrastructure within private land without notice to any future purchasers or the world-at-large. Similarly, a landowner’s right to due process and compensation are being avoided despite the fundamental Australian right to free and unencumbered access to their own land in the absence of clear statutory power to the contrary.

This is still subject to legal adjudication by a Court or Tribunal.

About Best Hooper – Victoria’s Property, Planning and Land Development Advisory Law Firm

Best Hooper has a rich history and remains as one of Melbourne’s oldest law firms, dating back to 1886. Over the years, our clients have benefitted from our industry presence and pre-eminent reputation consisting of leading town planning and land development lawyers. We are continuously recognised as industry leaders in a variety of publications, including Doyles Guide and Best Lawyers.

Best Hooper regularly advises and represents land owners in water infrastructure and land compensation matters, and are well positioned to assist with any strategic advice that may be required.
If you require more information please contact Joel Snyder on (03) 9691 0211 or jsnyder@besthooper.com.au or Emily Marson on (03) 9691 0234 or emarson@besthooper.com.au.