a) the underground drainage system (including any waterproofing) and underground sewerage system at the site described in the Plan of Subdivision RP19604 is part of the common property; and > > b) the cost of repairing and maintaining the underground drainage system and the underground sewerage system is to be borne by Owners Corporation RP19604; and charged equally to the lot owners.

2. The respondent's application dated 28 July 2025, for leave to make an application in relation to the same facts and circumstances as an application which has been withdrawn, is refused.
3. The proceeding is listed for directions hearing on 21 May 2026, via Zoom.

1. More than 80 years ago, two semi-detached units were built on a single "immoderately"[1] sloping block of land in Toorak. The units share a common wall, with Unit 2 at the rear, uphill portion of the block; and Unit 1 at the front, downhill portion of the block. There is a drainage system under the block. It consists of interlinking agricultural drains,[2] conduit pipes,[3] and stormwater pits and travels down the eastern and western sides of the property. A sewerage system also serves both units. It consists of two underground pipes. Each pipe has inlets from each unit. The two pipes merge into a single pipe to the east of Unit 1, before exiting at the eastern boundary.
2. Sally Barter, who is the respondent in OC239/2025, purchased Unit 1 (the front, downhill block) about 20 years ago. Issues with drainage, and disputes with her neighbours about these and other issues, have been a persistent problem for her since that time. This is the fifth VCAT case she has been involved in relating to these issues. She has described her difficulties as "almost 20 years of heartbreaking conflict".
3. Alison Naughton, who is the applicant in OC239/2025, purchased Unit 2 (the rear, uphill block) about five years ago, in early 2021. This is the second VCAT case she has been involved in relating to these issues. The first was an application brought by Ms Barter against her in 2022. Ms Barter withdrew that application on 8 October 2024, nine days before the date set for the final hearing.
4. Ms Barter and Ms Naughton agree that there are serious problems with the drainage and sewerage systems under the block; and that repair works are required. Where they differ is on:
   1. who owns the drainage and sewerage systems;
   2. who should be responsible for the cost of repairs to the drainage and sewerage systems; and
   3. who should pay for repairs to Ms Barter's front fence, which she says are required because of issues with the drainage system.

1. Although the units were built in the 1940s or earlier, the block was not formally subdivided until 1982. Under the plan of subdivision, the area below ground and more than 15 metres above ground is common property. There is also a strip of common property on the eastern boundary, which provides a driveway for Unit 2 and pedestrian access to the front doors of both Units 1 and 2. Otherwise, the whole of the rear part of the property is allocated to the owner of Unit 2 and the whole of the front part, to Unit 1.

Figure 1: Extract of plan of subdivision (with shading to show ownership)

1. The drainage and sewerage systems were first constructed over 80 years ago, when the units were built. Since that time, they have been modified and repaired repeatedly. Comprehensive records of these modifications and repairs were not available at the hearing. Understanding the elements of the drainage and sewerage systems is a process of deduction based on old plans; more recent CCTV inspections and excavations; and records of previous works. It is not possible to chart either system with any precision. However, for present purposes, a good working description of the drainage system, can be obtained from a mud map from April 2010, but subsequently annotated[4] to incorporate the observations of various inspections (see Figure 2). A good working description of the sewerage system can be obtained from the sewerage plan attached to the Yarra Valley Water Property Sewerage Plan for the block, which appears to date back to the subdivision in 1982 (see Figure 3).
2. According to the mud map, the drainage system commences with agricultural pipes in the backyard of Unit 2 (the uphill side of the block). These agricultural pipes then connect into two conduit pipes - one running down the eastern boundary and one running down the western boundary. Further agricultural pipes are positioned under the building near the mid-wall which joins Units 1 and 2; and at the front fence. Downpipes from the roofs of Unit 1 and 2 connect into the eastern and western conduit pipes at various points. Four stormwater pits collect water to prevent overflow.

Figure 2: Mud map from April 2010[5]

1. According to the sewerage plan, the sewerage system is constructed in a rough "Y" configuration. One branch commences at the rear of the Unit 2 garage. It travels under the garage then down the driveway before crossing under Unit 1. It has inlets from both Units 1 and 2. The second branch commences on the eastern side of Unit 2 before travelling under the courtyard of Unit 1. It also has inlets from both Units 1 and 2. The two branches join together and the combined sewerage pipe then exits the block on the eastern boundary (in the courtyard belonging to Unit 1), before connecting to a sewer main.

Figure 3: Extract from Yarra Valley Water Property Sewerage Plan[6]

1. Ms Naughton argued that both the drainage system and the sewerage system were common property. She relied upon the fact that both systems were located below ground, in the common property, and serviced both units by:
   1. in the case of the drainage system:
      1. removing excess groundwater throughout the block; and
      2. collecting and removing rainwater from downpipes servicing both Units 1 and 2.
   2. in the case of the sewerage system, collecting sewerage from inlets from both Units 1 and 2.
2. She also relied on the earlier case of Barter v Bushett[7] in which both VCAT and the Supreme Court accepted that the drainage system under this particular block was common property.
3. Ms Barter argued that the drainage system and the sewerage system should not be treated as indivisible systems. Rather, she argued that each branch of each system could be subject to separate ownership according to the person who benefited from that particular section, with the owners corporation granting the owner(s) an implied easement to travel through the common property. Thus, she argued that the conduit and agricultural pipes under Unit 2 serviced only Unit 2, and so were owned by Ms Naughton; and that the agricultural pipes under Unit 1 served only Unit 1, and so were owned by Ms Barter. However, she said that the conduit pipes under Unit 1 on the western boundary carried water collected under both Unit 1 and Unit 2, so were owned by both Ms Barter and Ms Naughton; and that the conduit pipes under the driveway carried water collected under Unit 1, Unit 2 and the common property, so were owned by Ms Barter, Ms Naughton and the owners corporation.

Figure 4: Ms Barter's position on ownership of drainage system

1. Ms Barter made a similar argument with respect to the sewerage system. As shown in Figure 5, she argued that ownership of a section of the sewerage pipes depends on whether that section transported sewerage from one or both units, which in turn depends on the location of the individual inlets from each unit.

Figure 5: Ms Barter's position on ownership of sewerage system

1. I have concluded that the drainage system and the sewerage system should each be viewed as single systems, subject to single ownership, and that the owner of these two systems is the owners corporation. I have reached this conclusion having regard to the following matters.
2. First, the drainage system and the sewerage system are built below ground, which is in the common property.
3. Second, at the time of the subdivision, s 12 of the Strata Titles Act 1967 (Vic) granted each unit an easement through the common property for the passage or provision of water and sewerage.[8] That implied easement continues to operate today. However, the existence of an easement for the passage or provision of water, sewerage or drainage does not determine the question of the ownership of the infrastructure required for that purpose.
4. Third, there is no evidence of an express intention to divide ownership of the drainage and sewerage systems. It follows that there is also no clear record of how it was intended that the systems be divided. This creates practical difficulties given, over 80 years down the track, there are no precise plans of either system available. Expert reports provided for the hearing depicted differences in the configuration of the systems. It also appeared from the evidence at the hearing that a downpipe from Unit 1 had been relatively recently routed to feed into a pit underneath Unit 2, but this was not reflected in the mud map reproduced in Figure 2. Given 80 years of adaptations and repairs, there are likely to be other features of the drainage and sewerage system which are not reflected in Figures 2 and 3. In this context, division of ownership of the systems according to use is impracticable. Had the original subdividers intended there to be such a division, they ought to have clearly documented it.
5. Fourth, Units 1 and 2 were built on a steeply sloping block. An effective drainage system was required for the benefit of both units - without this, building Unit 1 on the downhill portion of the block would not have been possible. The design and construction of the entirety of the drainage system thus benefits both units.
6. Fifth, the drainage system services both units, by preventing water ingress and removing rainwater from downpipes. It also serves the common property, by fulfilling its obligations in relation to the removal of groundwater and preventing unreasonable flows of water through the common property. This protects the above ground interests of the owners corporation and Units 1 and 2. It also protects the owners corporation and each of the owners of Units 1 and 2 from potential liability under s 16 of the Water Act 1989 (Vic) for a flow of water that is not reasonable.[9]
7. Sixth, the sewerage system also services both units and appears to have been designed and constructed for this purpose. Although parts of the pipes which comprise the sewerage system only receive inputs from Unit 2, both of its two branches receive inputs from both units. Further, both units benefit equally (in the sense of both being provided with a means for removal of sewerage) from the system. The fact that Ms Naughton's waste travels a longer distance through the pipes does not increase the benefit to her of the system. The public sewerage main travels down the entire length of the eastern boundary of the block. Had a stand-alone system been designed solely for Unit 2, it might have exited the block and accessed the main at an earlier point, rather than continuing through the land underneath Unit 1, collecting sewerage from inlets from Unit 1.
8. Seventh, other VCAT decisions concerning ownership and responsibility of balconies, windows, decking and associated waterproofing,[10] do not assist in determining the ownership of the underground drainage and sewerage systems in this case, apart from emphasising the factual nature of the enquiry and the "practical approach"[11] required.
9. Finally, in VCAT proceeding BP1030/2018,[12] Senior Member Walker determined that the drainage system under this block was common property. Senior Member Walker described the drainage as two systems, one travelling down the east side and one travelling down the west side of the property. I prefer to view the drainage system as a single system rather than two systems, given the evidence suggests that the two sides of the drainage system are connected by agricultural drains and the uncertainty of the precise extent and location of the current system. However, this is not a significant difference. I agree with his conclusion in relation to the ownership of that system. Ms Barter's application for an extension of time to appeal Senior Walker's decision was dismissed by the Supreme Court[13] for reasons that included that the appeal had no real prospects of success. Although the decisions of Senior Member Walker and the Supreme Court are not binding in this proceeding, as neither Ms Naughton nor the owners corporation were parties to BP1030/2018, I draw comfort from the fact that both VCAT and the Supreme Court has drawn the same conclusion as me in relationship to ownership of the drainage system, and for similar reasons.
10. I conclude that the entirety of the drainage system and the sewerage system are owned by the owners corporation. I include within the drainage system any underground infrastructure required for its effective operation, such as waterproofing. I do not include above ground downpipes and other inlets that are identifiably for the benefit of individual unit owners, by either collecting and directing rainwater falling on an individual lot; or removing waste.[14]

WHO IS RESPONSIBLE FOR REPAIRS TO THE DRAINAGE AND SEWERAGE SYSTEMS?

1. I have concluded that the drainage and sewerage systems form part of the common property.
2. The OC Act states that the functions of the owners corporation include managing, administering, repairing and maintaining the common property.[15]
3. Under s 46 of the OC Act, an owners corporation must repair and maintain the common property and services related to the common property.
4. Under s 47A of the OC Act, a lot owner is prohibited from repairing, altering or maintaining the common property.[16]
5. The starting point, then, is that the owners corporation has the power and obligation to repair and maintain the drainage and sewerage systems as they form part of the common property.
6. However, Ms Barter argued that where an owners corporation provides a service to lot owners, the cost of that service should be divided according to the benefit principle. She said that the provision of drainage and sewerage systems were a service provided by the owners corporation to one or both units and that, accordingly, the cost of that service should be allocated according to the benefit principle. She argued that each system could be divided according to the benefit as shown above in Figures 4 and 5.
7. She also referred to s 47 of the OC Act, which provides:

(1) An owners corporation must repair and maintain a service in or relating to a lot that is for the benefit of more than one lot and the common property.

(2) An owners corporation may, at the request and expense of a lot owner, repair and maintain a service in or relating to a lot if it is impracticable for the lot owner to repair or maintain that service.

(3) In this section -

service includes a service for which an easement or right is implied over the land affected by the owners corporation or for the benefit of each lot and any common property by section 12(2) of the Subdivision Act 1988.

1. She argued that s 47(1) only applied if a service was for the benefit of more than one lot and the common property. She said that if a service was for the benefit of more than one lot but not the common property, or only one lot and the common property, s 47(2) applied and any repairs and maintenance was required to be at the lot owner's expense.
2. Ms Naughton argued that the cost of the drainage and sewerage systems should be borne by the owners corporation and split between unit owners according to lot entitlement (i.e.: 50/50).

MY DECISION ON RESPONSIBILITY FOR COST OF REPAIRS

1. The benefit principle is one of the foundational principles in the OC Act. It provides an important protection for individual lot owners, perhaps particularly in two-lot subdivisions. It is reflected in:
   1. section 12 of the OC Act, which provides that an owners corporation may require a lot owner to whom a service has been provided to pay for the cost of providing the service;
   2. section 23(3A) of the OC Act, which empowers the owners corporation to levy an additional annual fee if the owners corporation has incurred additional costs arising from the particular use of the lot by the lot owner;
   3. section 24 of the OC Act, which empowers the owners corporation to levy special fees and charges designed to cover extraordinary items of expenditure and states that such fees and charges "that are carried out wholly or substantially for the benefit of some or one, but not all, of the lots affected by the owners corporation must be levied on the basis that the low owner of the lot that benefits more pays more"; and
   4. section 49 of the OC Act, which provides that:

(1) An owners corporation may recover as a debt the cost of repairs, maintenance or other works carried out wholly or substantially for the benefit of one or some, but not all, of the lots affected by the owners corporation from the lot owners.

(2) The amount payable by the lot owners is to be calculated on the basis that the lot owner of the lot that benefits more pays more.

(3) The works referred to in this section may be to the common property or a lot.

1. However, in the present case, I find that the drainage system is for the benefit of both units and the common property. It services all three by removing rain and groundwater which might otherwise cause damage to Unit 1, Unit 2 or the common property; or create liability for the unit owners or the owners corporation for an unreasonable flow of water. Given the steeply sloping block, an effective drainage system is essential for the long-term liveability of both Unit 1 and Unit 2. It is simply not possible to differentiate or quantify any difference in benefit from the drainage system between the unit owners in the circumstances of this case.
2. I find that the sewerage system, in both its design and operation, benefits Units 1 and 2 equally. It provides the same service (the removal of sewerage) to both Units 1 and 2. It is not to the point that particular segments of pipe carry waste from only Unit 2 or that waste from Unit 2 travels further along the pipes than waste from Unit 1. That is a design choice grounded in the optimal method to provide a sewerage service to both units, rather than a reflection on the amount of benefit the system offers to each unit.
3. Section 47(2) of the OC Act (which says that the owners corporation may repair and maintain a service at the request and expense of a lot owner) is not applicable to the common property. The repair of common property is governed by s 46 of the OC Act, which states that an owners corporation must repair and maintain the common property and the services related to the common property.[17] In any event, even if s 47(2) of the OC Act were applicable to the drainage or sewerage systems, as the systems benefit both Units 1 and 2, the expense ought to be split equally between them.
4. Accordingly, the cost of repairing and maintaining the drainage and sewerage systems should be borne by the owners corporation and charged equally to the lot owners.

SHOULD MS BARTER BE ABLE TO CLAIM FOR REPAIRS TO FENCE?

1. Ms Barter and Ms Naughton agree that the front fence forms part of Unit 1's lot and is owned by Ms Barter.[18]
2. The fence along the front boundary of Unit 1 was replaced in about 2024. Ms Naughton paid half the cost of repairing agricultural and stormwater drains adjacent to the fence and applying a waterproof barrier to the fence. Ms Barter paid the remaining costs of replacing the fence.
3. Ms Barter says that fence was damaged when a stormwater drain adjacent to the fence pushed upwards into an agricultural drain, causing it to fail. She says this led to water collecting under the fence, which caused the fence to develop a large crack. It was this, she said, which led to the requirement to replace the fence. Ms Barter argues that, given this, either the owners corporation should pay the cost of replacing the fence or Ms Naughton should pay half the cost of replacing the fence.
4. Ms Barter accepts that there were some fine cracks in the front fence when she purchased the property. However, she says that those cracks worsened around 2016, due to the movement in the stormwater drain.
5. Ms Naughton accepted that the agricultural drain positioned near the fence failed due to movement of the stormwater drain; and that repairs to both the agricultural and stormwater drain were the responsibility of the owners corporation. She has paid half of the costs of these repairs, including waterproofing. However, she said:
   1. Ms Barter was informed the fence needed repair or replacement in 2005, before purchasing Unit 1.
   2. Ms Barter had been complaining of the need to replace the fence since at least 2010.
   3. Ms Barter had brought a claim for replacement of the fence against the then owners of Unit 2 in VCAT in 2019.
   4. In VCAT proceeding OC1679/2022, Ms Barter made a claim against the owners corporation and Ms Naughton, seeking replacement of the fence. This claim was listed for hearing on 17 October 2024. Ms Barter withdrew her application nine days before the hearing, after multiple submissions and two compulsory conferences. Ms Naughton had opposed the withdrawal as she wanted the issues determined. Ms Barter had provided no adequate explanation for withdrawing the application.
   5. In the circumstances, it was now too late for Ms Barter to make a claim against the owners corporation or Ms Naughton for the cost of replacing the fence.
   6. In any event, the fence was nearly 90 years old and according to the Archicentre report was already in need of repair and replacement by the time Ms Barter purchased Unit 1. There is no evidence that it was the damaged drainage system that necessitated the replacement of the fence.

MY DECISION ON WHETHER MS BARTER SHOULD BE ABLE TO CLAIM IN THIS PROCEEDING FOR REPLACEMENT OF FRONT FENCE

1. In VCAT proceeding OC1679/2022, Ms Barter sought to make a claim against Ms Naughton and the owners corporation with respect to the cost of replacing the fence.[19] She withdrew that application nine days before it was heard. Under s 74(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), an applicant who withdraws an application cannot make a further application in relation to the same facts and circumstances without the leave of VCAT. Because Ms Barter withdrew the application she made in relation to the fence in OC1679/2022, she requires VCAT's permission to re-agitate her claim against the owners corporation or Ms Naughton with respect to replacement of the front fence.
2. The front fence forms part of Unit 1's lot and is owned by Ms Barter. Ms Naughton or the owners corporation could only be liable to pay for replacing the front fence if the requirement to replace the fence was caused by a flow of water from the common property which was not reasonable.[20]
3. The fence was nearly 90 years old when it was replaced. Ms Barter was informed in an Archicentre report dated 15 January 2005, before she purchased the property, that the front fence was not level and required underpinning and replacement. An Adams Consulting engineering report from December 2005 noted diagonal cracking in the front fence and stated that it should be thicker and reinforced given the level of soil it was required to retain. This report suggested the soil either be removed and the fence monitored for ongoing movement (and rebuilt if this occurred) or the fence demolished and rebuilt with an improved design. Although Build-Plumb expresses the view that the damage was caused by the failures in the drainage system, this was based on Ms Barter's instructions that the fence was "only slightly damaged" upon her moving in in 2005 and that the Adams Consulting engineering report described the fence as "stable".
4. In submissions in this case, Ms Barter admitted that there were fine cracks present when she purchased Unit 1 but said that the cracking worsened from 2016. Ms Barter's evidence is supported by a report by Rapid Consulting Engineers dated 7 March 2019 which records that a Google Street View inspection shows cracking worsening between 2015 and 2018. I accept that the cracking in the fence worsened from 2016. However, given the concerns raised in earlier reports, I do not accept that the only issue with the front fence before 2016 was fine cracking.
5. In 2019, Ms Barter made an application in VCAT against the then owners of Unit 2. This application included a claim for the cost of replacement of the fence. As already noted, she also made a claim directly against Ms Naughton and the owners corporation in 2022, but withdrew that claim shortly before the listed hearing date.
6. It is apparent from the history outlined above that there have been significant and unexplained delays by Ms Barter in seeking to make this claim.
7. Any delay causes stress and reduces the availability of relevant evidence. In this case, Ms Naughton and the owners corporation can point to several specific ways they have been adversely affected because of Ms Barter's delays. First, Ms Naughton purchased the property about five years ago, effectively assuming responsibility for fifty per cent of the owners corporation. By that time, Ms Barter had already formed the view that the fence required replacement, as she included a claim in relation to the fence in her VCAT proceeding against the former owners of Unit 2. Second, in 2022, Ms Barter brought a claim against Ms Naughton and the owners corporation in relation to the cost of repairing the front fence. Ms Naughton was ready to proceed with a hearing of that proceeding on its listed hearing date in October 2024. However, that hearing did not proceed because Ms Barter chose to withdraw her application. Ms Naughton lost the time and effort she had expended to prepare for the hearing and has suffered the ongoing stress of not having issues she wanted determined finally resolved. Finally, there is conflicting evidence in relation to the cause of the need to replace the front fence, including among experts retained by Ms Barter. As the front fence has now been replaced, obtaining further expert evidence as to the cause of the need for the replacement is no longer possible.
8. There are also public policy considerations. Withdrawing an application only a few days prior to the listed hearing and then later seeking to re-agitate it is inefficient. It uses VCAT resources which might otherwise be directed to resolving other cases.
9. Ms Barter claims that she withdrew the previous application due to ill-health. Although VCAT understands that disputes can be stressful and that health issues may impact on the capacity of a party to represent themselves at a hearing, Ms Barter has not provided any detailed or specific medical evidence that she was unable to proceed with the hearing in OC1679/2022 for health reasons.
10. In all the circumstances, it is not fair or in the interests of justice to give Ms Barter permission to re-agitate this claim. Ms Barter's application for leave to make a claim against Ms Naughton or the owners corporation for the cost of replacing the front fence is refused.

1. The drainage and sewerage issues in this block have been the source of heartbreak and stress for both Ms Naughton and Ms Barter. A place that should have provided both a sanctuary and a wise investment has become a source of conflict, expense and uncertainty. Both Ms Barter and Ms Naughton have been forced to become experts in plumbing, drainage and sewerage issues, matters which might otherwise have held little interest for them.
2. But there were also positive signs at the hearing that Ms Naughton and Ms Barter could find ways to communicate, compromise and listen constructively that were not possible with previous ownership configurations. The next step is for them to sit down and talk with each other and try to reach agreement on the specific works which are required, and who is to perform them, as well as to design effective ongoing processes for communicating with each other and dealing with future decisions and issues. Given they remain neighbours, an agreed process will always be more effective than one imposed upon them by VCAT.
3. That process need not wait further direction from VCAT. However, to assist the parties, the proceeding will be listed for a directions hearing on 21 May 2026. At that directions hearing, VCAT will consider whether there are appropriate dispute resolution processes which could be used to assist Ms Naughton and Ms Barter to resolve any outstanding issues.

[1] Peter Leitner, Build Plumb Report dated 25 June 2018.

[2] Perforated drains designed to remove excess underground water.

[3] Solid pipes designed to transport water.

[5] Subsequently annotated and also shaded to coincide with ownership shown in Figure 1.

[6] Subsequently annotated to highlight the sewerage system in red and also shaded to coincide with ownership shown in Figure 1.

[7] Barter v Bushett (Building and Property) [2019] VCAT 774; Barter v Bushett [2022] VSC 172.

[8] This was carried over into s 12(2) of the Subdivision Act 1988 (Vic). Section 12 of the Subdivision Act 1988 (Vic) has been subsequently amended, but the creation of an implied easement for passage or provision of water or sewerage remains.

[9] Before the commencement of the Water Act 1989 (Vic), see the Drainage of Land Act 1975 (Vic). I note that in 2021, s 17A of the Owners Corporation Act 2006 (Vic) (OC Act) was enacted. This section clarified that the owners corporation owned any water that flows on the common property. I do not consider this to be relevant to the question of ownership of the drainage and sewerage systems.

[10] For example, Davies v Owners Corporation 1 PS414649K (Building and Property) [2019] VCAT 1159; Owners Corporation PS508732B v Fisher (Owners Corporations) [2014] VCAT 1358.

[11] Davies v Owners Corporation 1 PS414649K (Building and Property) [2019] VCAT 1159 at [35]; Owners Corporation PS508732B v Fisher (Owners Corporations) [2014] VCAT 1358 at [20]; Damjanovski v Owners Corporation 1 Plan No. PS503570D (Owners Corporations) [2025] VCAT 484 at [79].

[12] Barter v Bushett (Building and Property) [2019] VCAT 774.

[13] Barter v Bushett [2022] VSC 172.

[14] See Damjanovski v Owners Corporation 1 Plan No. PS503570D (Owners Corporations) [2025] VCAT 484 at [79].

[15] Section 4 of the OC Act. See also s 3, which defines function to include duty and authority.

[16] This prohibition would apply to the drainage and sewerage systems even if I am wrong in relation to the ownership of the drainage and sewerage systems, as it also applies to "a service on or relating to a lot that is for the benefit of more than one lot or the common property" - see s47A(2)(b) of the OC Act.

[17] See Barter v Bushett (2022) VSC 172 at [65] and [66].

[18] Compare Barter v Bushett (Building and Property) [2019] VCAT 774; Barter v Bushett [2022] VSC 172.

[19] She initially joined the owners corporation as an applicant, but by order made 19 September 2023, the application was amended to name the owners corporation was as second respondent.

[20] Water Act 1989, s 16.