9 October 2018

Draining water from your land – rights and responsibilities

After a relatively dry summer, drainage might be the last thing on your mind, but as winter approaches we look at the issues that can arise when damage is alleged to have been caused by the flow of water as it drains away.

In this, the first of a series of three articles, we look at the law in general terms. In the second, we will look at the law in more detail and how it has evolved, considering what landowners should and should not do to avoid difficulties. In our third and final post on the subject, we will consider how the Government’s 25-year Environmental Plan and Agriculture Bill may move the issues on once more.

As a statement of general principle, owners of agricultural land have an absolute right for water to drain away from their land onto lower land, provided the water follows no definite course. They are not obliged to prevent water from draining away, where that water has come onto their land naturally, such as through rainfall or draining down from land above.

However, it is also well established today that waters which flood onto a neighbouring owner’s land, causing damage, might amount either to either a nuisance or to a trespass. This may entitle the owner of the affected land to claim damages, or to obtain an injunction obliging the party at fault to take some action.

Between those two general statements of principle are many different degrees of potential liability. For example, what is the position of a landowner whose works to improve drainage have inadvertently caused flooding? If water collects and then escapes suddenly, could this lead to a successful claim?

Decided cases in this area of law date back to the days in which the old Cornish tin mines operated. At that time, provided there was no intent or negligence, a mine owner would have a defence to a claim from a flooded neighbour, even if they had altered their drainage system to increase the flow of water onto lower levels.

The law has developed since then, more recently in response to developing patterns of higher rainfall. Today, one landowner will owe a general duty of care towards their neighbours, to take steps that are reasonable to protect them from foreseeable harm. Failing to do so may lead to a claim in negligence. Further, if one party’s activities unreasonably interfere with those of their neighbour, a claim in nuisance might be established and if something – including water – comes on to land without permission, it will constitute a trespass.

In successful claims, damages can be awarded and, in cases involving nuisance and trespass, a court can be asked to grant an injunction which might either compel a party towards, or restrain a party from, taking action.

Increasingly, courts have imposed a greater degree of responsibility on landowners, encouraging them actively to deal with the water that comes onto their land. Courts tend more often to find landowners liable, if they neglect to act in this way. It seems likely that the law will continue to develop in this direction, but how and why? How might the law change further, given the Government’s environmental aims? We look at these questions later in the series.

For advice on these issues and others relating to fisheries and water law, please contact Esther Stirling at estirling@hcrlaw.com or on 01989 561 422.

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Esther Stirling, Partner
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