A recent case has highlighted why it’s important for developers to properly think out their drainage strategies from day one, and not to make assumptions about the rights the land benefits from, whether riparian or coming about through long use.
The case in question is Bernel Limited and Canal and River Trust.
Bernel owned land in a village near Macclesfield and had consent to construct 9 dwellings on it. To facilitate their development, they proposed draining surface water and treated sewage via a pipe which crossed the development and flowed into the adjoining River Dane Feeder Canal, owned by CRT.
Bernel argued that the pipe was either a culverted natural watercourse so they had riparian rights in respect of it or, in the alternative, that the land had acquired an easement through long use. CRT refuted both claims.
The Judge found that the pipe wasn’t a watercourse, so the claim failed. The Judge made some very useful remarks which give rise to the following key points of which developers should take note:
Where a feature clearly is a watercourse or can be established as such then:
If prescriptive easements exist:
Developers (and their relevant advisors) need to exercise caution when proposing to drain new developments to existing “watercourses”, including being satisfied that the geographical feature in question is indeed a watercourse. If it is, it must be clear that such riparian rights as do exist will accommodate the land in its developed state.
Riparian rights offer no assistance where substantial works have to be carried out e.g. the creation of a headwall or similar. In that case a developer will still need permission from the landowner or (if that party cannot be identified) they will need to put adequate insurance on risk.
Similarly, if arguing prescriptive rights of drainage, it must be clear that the intended development can rely on those rights, and that it can do so in its entirety. This is hard to establish for any sizeable development.
Further, whilst the delivery of a drainage strategy in the most cost efficient is understandably desirable, more expensive but potentially much more straightforward connections into adopted apparatus (where available) may prove cheaper in the long run and avoid unnecessary headaches.
For any developer who wishes to rely on riparian and / or prescriptive rights a comprehensive (and potentially expensive) natural drainage survey should be carried out which meets the Bernel v Canal and River Trust test i.e. the natural watercourse and its flow will need to be fully understood, measured, and monitored over a sufficient period to record the flow, any periods of non-flow, and also temporary flooding. This may well also mean a delay in the acquisition, or development. Any intensification of the flow, and expansion of the land area benefitting from the flow, will need to be fully understood as well.
For more information on the article above please contact Ian Ramsay Tompkins
We produce a range of insights and publications to help keep our clients up-to-date with legal and sector developments.
Sign up