Resolving drainage issues on new development sites is an essential but often painstaking exercise. If additionally you need rights over land belonging to third parties, you may find them unwilling to give you what you want at a price you are prepared to pay.
So you may be interested to hear about a strategy adopted in a recent and relatively developer-friendly case, Bernel Ltd. v Canal and River Trust  which looked at the existence of rights dating back to Roman times, rights that are antiquated but not obsolete.
Tales of the riverbank
A developer wanted to build nine new homes and discharge the resulting surface and foul water through an old pipe of unknown origin which ran through the development site onto neighbouring land owned by the Canal and River Trust, and from there into the River Dane feeder canal.
The developer had an Environment Agency permit to dispose of foul water in accordance with a drainage scheme that mixed treated sewage effluent with clean surface water. The planners had approved the drainage scheme but the developer could not reach an agreement with the Trust, which had concerns about overloading the feeder canal.
So the developer tried to demonstrate that it had a pre-existing right to drain the site by way of either riparian rights or, alternatively, a prescriptive right based on long use. This article focuses on the riparian rights claim only. We will look at prescriptive rights another time.
Riparian rights? What are they, who has them and why claim them?
‘Riparian’ means relating to river banks but the term also applies to any natural watercourse such as a stream, brook, ditch, drain, culvert or any other passage through which water naturally flows. Watercourses drain land and help to prevent flooding.
Landowners whose land adjoins a watercourse, or has one flowing through it, are known as ‘riparian owners’. They have long established rights relating to the watercourse, including a right to discharge a reasonable amount of water from the riparian land into the watercourse, subject to the rights of downstream riparian owners and to various statutory regimes.
Riparian ownership comes with a wide range of responsibilities as well as rights - see Owning a watercourse – and you cannot claim the rights without also assuming the liabilities.
Is an old pipe a watercourse?
It might be, if the pipe can be classified as a culverted natural watercourse, i.e. a watercourse that has been enclosed underground but nonetheless remains a watercourse.
The developer reasoned that riparian ownership allowed it to discharge water onto the Trust’s land without permission. Unfortunately, the evidence did not back up its claim. The Trust’s expert was able to demonstrate that surface water percolated naturally through the ground, with some run-off onto the Trust’s land but not through the old pipe.
But significantly for developers, the court commented that, had riparian rights existed, they would have extended to discharging both types of water into the pipe and onto the Trust’s land.
The Environment Agency permit
The court also said that discharging treated effluent fell within the scope of a right to drain riparian land. There was no evidence that the additional effluent from the new houses would have overwhelmed the canal feeder, and as long as the flow did not exceed the limits set out in the Environment Agency permit, the discharge would have amounted to a reasonable drainage operation for riparian ownership purposes.
Evidence is king
If you want to establish riparian rights, you will need a proper basis for your claim and sufficient evidence to back it up.
In Bernel, the developer was unable to produce evidence of any stream or watercourse running along the route of the pipe, and there were no indications in old Ordnance Survey maps or other surveys to show the presence of a watercourse in the vicinity of the pipe.
For a natural watercourse to exist, there has to be a stream of water flowing in a defined channel or between something in the nature of banks. While a stream may occasionally run dry, there must be a course, marked on the earth by visible signs, along which water flows.
It is worth noting that the court preferred the evidence of the Trust’s expert witness who had carried out a physical investigation of the facts on the ground, to the developer’s expert who had relied on a modelling exercise
So can we avoid expensive drainage rights in future?
If your development does not adjoin a watercourse, you will need an easement to drain surface water over intervening land.
If there is an existing drainage easement, you will need to consider whether your proposed development will intensify use of the right, or alter the character of the site, so as to take it beyond the scope of the easement.
But depending on the circumstances, topography and evidence, Bernel could provide a useful solution, or at least one part of the drainage jigsaw, for smallish new developments. For larger sites, the volumes of water involved are more likely to take drainage outside the limits of riparian rights.
The detailed law governing riparian rights emerged from a body of nineteenth century case law, much of which related to the industrial revolution. It has since been circumscribed to a large extent by modern planning, environmental and drainage law. The interrelationships between these different bodies of law are not straightforward but we have expertise in all of these areas, so please contact a member of the commercial property team if you want specific advice.
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