In this latest article Kirsty Barsby, a member of our Development & Strategic Projects team, considers some of the issues which often come into play when looking at drainage for former farmland which is being developed for an alternative use.

Over the winter there was a significant amount of flooding across the country, with the drainage of land for any new development becoming an ever more topical issue.

Developers typically investigate what the planning department might consider to be a suitable drainage strategy for a site which is to be developed, but they sometimes overlook a check as to whether the site has the necessary legal rights to achieve the designed solution.

This potential problem is made worse for the developer where it has delayed formulating the final detail of the drainage solution until the site has already been acquired.

Drainage of land is complex and every property drains using different methods. Agricultural land oftens drains via a complex network of underground land drains which ultimately connect to a drainage ditch. The drainage and associated issues differ for every site.

These are some of the common questions which arise:

Is there a legal obligation to accept water draining from other property?

The legal position is complex but in short, a landowner is responsible for the drainage of their land and by law a person owning lower-level land has to accept natural land drainage water – that is ground water or surface water run off – from adjacent, higher-level land.

However, importantly, that does not apply where the owner of the higher-level adjacent land has carried out “improvements” and, as a result, the runoff is no longer “natural”. For example, natural runoff would not include water emerging form downpipes.

What is a drainage ditch?

A channel, usually dug at the side of a field in order to drain water away.

Typically, water from a field drains into the ditch via a network of underground drainage pipes and then flows from the ditch to a nearby stream or river – a ditch is a watercourse as defined in the Land Drainage Act 1991.

I want to sell some farm land to a developer who intends to drain via the ditch on the neighbouring property – can the developer do that?

First of all, you need to check whether there is a legal right to drain your land in this way.

The right may have been expressly granted when the property was acquired or could have been obtained by long use, or “prescription” as it is called.

Prescription is where a right has been enjoyed for at least twenty years and that use has been continuous, without secrecy and without consent.

Even where there is no express or prescriptive right there could be a riparian right, as explained later in this article.

Even if a right has been established – and irrespective of whether that right is express, prescriptive or riparian – then although a developer can rely on that right for its then current purpose, they may not be able to do so if the proposed use of the land will differ from the use at the time the right was originally granted or if the level of discharge will be increased by the change in use.

Illustratively, a right of drainage originally granted for the benefit of land used solely for agricultural purposes is unlikely to be adequate to permit drainage from the land after construction on it of twenty dwellings, unless either the wording of the right originally granted expressly contemplates future development or it can be shown that there would not be any substantial increase in the flow of water, both in volume and intensity, as a result of the construction of the dwellings.

What is a riparian right?

Where a watercourse runs through land or along the boundary of land then the owner of that land has a riparian right in relation to that watercourse and these include a right to discharge a reasonable amount of water from the riparian land into the watercourse.

The case of Bernei v Canal and River Trust shows just how useful riparian rights can be if they can be established but at the same time it also demonstrates just how difficult it can be to establish riparian rights and prescriptive rights in the absence of supporting evidence.

The case involved a site where the developer wanted to build nine houses and drain both surface and foul water through an old pipe on to neighbouring land, then on into a feeder canal. The developer attempted to argue that the pipe was a culverted natural watercourse and that, as such, riparian ownership would allow it to be used to discharge water on to the land owned by the trust. Unfortunately, the evidence in this case suggested that, rather than passing through the pipe, surface water discharged from the site by natural percolation through the ground and rights in the pipe where not relevant for the discharge of surface water.

Interestingly though, the judge did suggest that had a natural watercourse been established then the nine house development could have relied on the riparian rights because it would not have caused any further burden than the surface water already flowing from the land. Whilst this could potentially provide a useful solution for smaller developments, it is unlikely to assist larger ones where the volume of water would be much greater.

Will the water utility company be satisfied with the rights which the developer wants to rely on?

Possibly not and it might still be necessary to negotiate new, express rights to satisfy the water utility company.

As a tip, when any rights of drainage are being negotiated, it is prudent to ensure that they are sufficiently wide to include any development which is proposed, even though that development may result in an intensification of flow, and to ensure that the rights will benefit not only the land, but the undertaking of the water utility company as well.

Even when there are existing rights in place, if there is any uncertainty as to their adequacy then, in order to avoid arguments later about changes or intensification of use or about who is entitled to rely on the rights granted, it may be preferable to negotiate new bespoke rights.

Kirsty’s work in our Development & Strategic Projects team involves providing on-going, “end to end” assistance and support for clients through the lifespan of a project and, where that project involves agricultural land, the team works closely with colleagues in our specialist Agricultural and Landed Estates team to achieve best outcomes for clients and their projects.

If our specialist experience in these areas can assist you and your business, please talk to us today by calling 01482 325242 or e-mail Kirsty on: kirsty.barsby@andrewjackson.co.uk