Do You Have The Drainage Right You Need?

People planning to extend property or carry out new development usually think about the need for planning permission, building regulation approval and, if wise, check for restrictive covenants on the deeds. However, something which is often overlooked or given insufficient attention is the need for the necessary rights of drainage. The recent case of Bernel Ltd v Canal and River Trust [2021] EWHC 16 (Ch) illustrates this.

Bernel Ltd v Canal and River Trust

A developer (Bernel Ltd), with planning permission to construct nine dwellings, was unable to establish the necessary right to drain the site onto neighbouring land owned by the Canal and River Trust and into the River Dane feeder canal. A drainage pipe serving other properties ran through the development site. The developer claimed the right to use it either:

• As a cultivated natural stream, meaning that as a ‘riparian owner’ the developer enjoyed a right to drain water into it; or
• A right of drainage had been acquired by ‘prescription’ (long use)

But the Court rejected the developer’s claims, finding:

• The pipe was not the site (or a relocated site) of a cultivated natural stream.

For there to have been a watercourse, such as to give rise to riparian rights, there had to be a stream of water flowing in a defined channel or between something in the nature of banks. Nothing indicated this (there was no evidence of any significant amounts of surface water from the site draining off by use of the pipe).

The evidence pointed to surface water percolating naturally through the ground, possibly with an element of run-off onto the Defendant’s land along the boundary line, but not through the pipe.

What are riparian rights?

Had there been a watercourse, the developer would have enjoyed riparian rights. Where watercourses run through land, the landowner enjoys various common law riparian rights, including:

• The right to receive a natural flow of water;
• A right to fish (subject to any necessary permits);
• A right to protect against erosion; and
• A right to extract water for ordinary purposes (subject to Environment Agency consent based on volume). Use of water for other purposes is subject to not interfering with the rights of other riparian owners. In addition, a riparian owner would be entitled to drain surface water naturally into the watercourse and, while it could not increase the flow of water by artificial means, “reasonable drainage operations” would be permissible.

The Court considered that draining surface water and treated foul water in accordance with an approved scheme permitted by a permit that had been granted by the Environment Agency would have amounted to a “reasonable drainage operation” and would therefore have fallen within the rights available to a riparian owner. However, no watercourse was found to have existed.

Easements by deed or long use

Even where there is a drainage easement, either on the deeds or acquired by long use, difficulties can still arise on adding a user to it – what is the land which has the benefit of the right? Has there been a radical change in the character or identity of this land imposing a substantial increase in the burden on the neighbouring land? If so, this would take the claimant’s user outside the scope of the easement.

Properties need drainage. However, before committing to expenditure on property extensions or development, have the drainage position checked.