Water, water everywhere and not a drop to drain (without the requisite rights)

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.

What’s it all about?

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.

What was the outcome?

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:

1. Whether something is a watercourse or not is a question of fact for the judge to decide, but he will be guided by the technical and historical information available.
2. A watercourse is naturally occurring and not something which has been artificially created.
3. Periods of non-flow don’t prevent a feature from being a watercourse, but equally a dry channel that is only filled by temporary flooding would likely not be a watercourse.

Where a feature clearly is a watercourse or can be established as such then:

1. Changes to land upstream (say, for development purposes) should be “without sensible diminution or increase and without sensible alteration in [the water’s] character or quality” for those downstream i.e. if increased or altered drainage for a new development is going to negatively impact the flow of water downstream, it will be difficult to make a case for riparian rights being sufficient;
2. A relatively minor increase in the greenfield run-off rate would not necessarily prevent a development from being accommodated by riparian rights, nor the fact that run-off may be channelled through a particular route (here, the pipe);

If prescriptive easements exist:

1. A development won’t be able to rely on them if it represents a "radical change in the character" or a "change in the identity" of the dominant land as opposed to a mere change or intensification of the prior existing use. Development for multiple dwellings is, by its very nature, a radical change to the land in question.
2. As for riparian rights, courts will consider if there is a substantial increase or alteration in the burden on the land burdened by the drainage easements.
3. A developer has to check if the claimed prescriptive easements truly benefit the whole land – in the case of a site comprising a residential dwelling to be demolished and a paddock behind it, it may be only the land formerly comprising dwelling and its curtilage can make out a case for the easements.

What do developers need to take away from this?

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