Lawbite: Drain onto my land? Not without my permission!

• United Kingdom

• Litigation and dispute management
• Real estate
• Real estate litigation - LawBite

23-02-2021

Bernel Ltd v Canal and River Trust [2021] EWHC 16 (Ch)

The High Court recently held that Bernel, the Claimant developer, could not drain onto neighbouring land without the neighbour’s permission as it did not have pre-existing riparian or prescriptive rights.

Bernel had acquired the development site which comprised of an existing house and its garden and a large adjoining field.  It planned to build nine new houses in the field and needed to drain surface and foul water from the development onto the neighbouring land.  A permit from the Environment Agency (EA) allowed it to discharge such water from the site into the pipe, however it did not have the neighbour’s permission and therefore needed to establish a pre-existing right to do this.

There was an old pipe on the site, through which water could flow onto the neighbour’s land.  Bernel argued that the pipe was classified as a “culverted natural watercourse” which gave rise to riparian rights meaning that it could discharge water into the pipe onto the neighbour’s land, without needing permission.

This was a question of fact for the court to decide, although expert evidence upon the status of the pipe was admissible.  The court held that the pipe was a drain or sewer rather than a culverted natural watercourse because there was insufficiently regular flow on Bernel’s land.  The EA’s assessment of the pipe when granting the permit was not determinative. As such, Bernel failed on the riparian claim. 

Barel’s alternative argument, being that it had acquired through long use a prescriptive easement to discharge surface and foul water from the site onto the neighbour’s land, also failed. The court decided on the facts that surface and foul water had never been drained from the site onto the neighbour’s land through the pipe. 

The court also considered how to decide the physical extent of the dominant tenement of a prescriptively acquired easement of drainage and the key distinction between:

(i)            an increase in the intensification of the burden from the existing dominant tenement, which is permitted, provided that:

(a)   the development does not represent a radical change in the character or a change in its identity, as opposed to a mere intensification of its use; and

(b)   whether the use of the dominant land as redeveloped would result in a substantial increase/alteration in the burden on the servient land

(this test was laid down by the Court of Appeal in McAdams Homes Ltd v Robinson [2004] 3 EGLR 93)

(ii)           an expansion of the dominant tenement, which is not allowed

The court determined that even had Bernel been able to establish the relevant use, it would only have been entitled to drain from the existing house and garden and not the development on the field (as this was an expansion of the dominant land). 

The court also stated that building nine new houses in the field would radical change the identity of Bernel’s dominant land, which although obiter commentary, is relevant to the test at (i)(a) above.

Key points

• do not assume that any existing rights to use drainage will apply to any proposed development of the land – each case depends upon its own facts
• riparian rights are a complicated area of law, often addressed by express grants of easements.  Such rights are often not registered at the HM Land Registry and therefore ought to be considered carefully
• a prescriptive easement may not extend to your proposed development if there will be a radical change in the character/extent of the land