The Victorian Civil and Administrative Tribunal recently upheld a decision of Greater Western Water that a property developer be required to construct a new sewer branch, rather than relying on an existing combined drain.
Such an approach was found to reflect sound principles relating to a water authority seeking to manage sewerage infrastructure in an orderly manner.
GWW is not alone in adopting a general policy requiring developers to establish new sewer connection points, rather than relying on existing combined drains. The Tribunal has supported this general policy as a means of “future proofing” key service assets, and has shown a reluctance to depart from the policy where there is no persuasive reason why a new sewer connection would be unachievable or prohibitively costly.
In Cowra Square Pty Ltd v Greater Western Water Corporation [2023] VCAT 964, the Victorian Civil and Administrative Tribunal (VCAT, or the Tribunal) upheld Greater Western Water Corporation’s (GWW) decision that a property developer be required to construct a new sewer branch, rather than being able to rely on an existing combined drain.
GWW’s Land Development Manual (Manual) provides that where land proposed to be developed is currently serviced by a combined drain with an existing lot, the combined drain cannot be used to connect additional lots – new sewer connection points are required at the developer’s expense.
Background to dispute
A developer was proposing to develop 9 units on a property which is currently serviced by a combined drain running through the adjacent property. The developer sought permission from GWW to connect to the sewer main, which GWW granted subject to the condition that the developer fund the provision of a new sewer branch to service the development.
The developer sought review of this condition on the basis that there was sufficient capacity within the existing combined drain, which had no history of failures, such that a separate sewer branch was not required.
VCAT’s decision
VCAT was required to consider whether there existed overriding circumstances that would warrant a departure from the general policy in the Manual requiring developers to install new connection points, rather than utilise existing combined drains. The developer submitted that:
- there was no reason requiring that the policy be followed on the facts of the application;
- there would be no material change to the status quo in terms of administration or functionality if the new development was permitted to connect to the combined drain; and
- the combined drain is physically capable of servicing both the neighbouring property and the 9 units that would result from the development.
In its decision, VCAT expressly supported the Manual’s approach to “simplify the management of private sewer infrastructure by removing shared private services and, in doing so, avoid potential for disputes, and enable more timely and cost effective management of private sewerage infrastructure”. VCAT considered that GWW’s policy as set out in the Manual reflected “sound principles relating to service infrastructure seeking to manage sewerage infrastructure in an orderly manner” and provided a “legitimate starting point” for the redevelopment.
The Tribunal ultimately decided that the developer had failed to show overriding circumstances that would warrant a departure from the Manual. The Tribunal also took into account that the continued use of the combined sanitary drain may constrain future development of the adjoining property (ie any development of the adjoining property would require direct sewer branch connection at the neighbouring property owner’s expense).
The Tribunal also held that it was “appropriate for GWW to elevate the consideration of orderly planning for services when making a decision about this new connection as triggered by the re-development of the land” and considered that this approach is “particularly apt where there is no other persuasive reason why the proposed infrastructure would be unachievable or prohibitively costly.”
Significance
GWW is not alone in adopting a policy requiring developers to establish new sewer connection points, rather than relying on existing combined drains. The decision in Cowra Square Pty Ltd v Greater Western Water Corporation [2023] VCAT 964 endorses the efficacy of this approach, as a means of “future-proofing” key servicing assets. Given combined drains are generally older infrastructure, and their continued use can lead to disputes between neighbouring landowners, significant overriding circumstances must be shown by any developer seeking to connect multiple lots to an existing combined drain, rather than establish a new sewer connection.
Article written by Jane Hall and Benjamin Kilbride at Ashurst.
