Whether a drain is a 'public drain' under s 198(1) of the Local Government Act 1989 (Vic) is a question of fact to be determined by reference to all the circumstances, not by a single 'critical characteristic' such as the drain's function of receiving public drainage water. A drain constructed on private land for the benefit and protection of private mining operations does not become a public drain merely because it receives water from public drainage infrastructure. The reasonableness of a flow of water under ss 16(2) and 20(1) of the Water Act 1989 (Vic) must be assessed having regard to the natural contours of the land, the use of the lands concerned, the history of consent and acquiescence, and the orderly development of the catchment area. A flow increase generated by gradual and orderly urban development over more than a century is not necessarily 'unnatural' for the purposes of the Gartner v Kidman principles.
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