Following her recent article about drainage and the development of agricultural land, Kirsty Barsby, a member of our Development & Strategic Projects team, replies to some specific enquiries we have received from our agricultural clients in relation to land drains.

Land drains play an important role in allowing surface water to drain freely from agricultural land. Developed by farmers, these complex networks of underground drains have been widely used since the mid-late nineteenth century. Each network is bespoke because their placement depended upon the topography of the surface at the time.

This hidden network of drains can lead to several issues and important considerations for landowners. Detailed below are some questions that we frequently answer for our clients:

1. Who owns the land drains?

A land drain is a watercourse as defined in the Land Drainage Act 1991. Usually, the primary responsibility for the maintenance of a watercourse rests with the landowner and, therefore, a landowner has the main responsibility for safeguarding their land and nearby property from flooding due to a blocked watercourse.

2. What about the Internal Drainage Board?

Each individual board has duties to exercise general supervision over all matters relating to the drainage of land within its district and has permitted powers to maintain “watercourses” but, whilst they may choose to maintain some drains, they are not obliged to do so. The board usually opts to maintain larger or arterial watercourses where there is likely to be more flow, but it may decide to maintain smaller watercourses for other reasons. Each board should have a definitive maintenance map showing all watercourses which that board has decided to maintain.

3. Why do I have to pay drainage rates even if I don’t have a watercourse on my land?

Drainage rates are levied as a charge on the agricultural land in an internal drainage district and are payable in respect of any land within a district, regardless of whether there is a watercourse actually sited on it.

4. I intend selling part of my land, so what do I need to do?

The likelihood is that the whole piece of land has one land drain network. You should ensure that the necessary rights are granted in the legal documents to ensure both parties have not just adequate rights to use the drains running under the other piece, but also rights of access to repair and maintain the drains in the future.

5. I have heard the neighbouring field is going to be developed. Can the owner use the drains under my land for the surface water drainage of that development?

There are several considerations here. Does the title to the neighbouring field include a right to use the drains in your land and, if so, is the right originally granted sufficiently wide enough to facilitate a change in use and any intensification of surface water run off which that might bring. Does the right allow the developer to install new surface water drainage? In reality, would the planning department consider this to be an adequate surface water drainage strategy for the development?

6. My drains connect to the neighbouring field, which has been sold for redevelopment. Can they dig up the drains?

No, not if you have a legal right to use those drains. Even if there is no express legal right on your title to use the drains, then you may have acquired a right by long use or prescription – this is where a right has been enjoyed for at least 20 years and such use has been continuous and without consent.

7. My drains connect to the drains under my neighbour’s land, but those drains are in disrepair?

Generally, unless the title deeds specify otherwise, each owner is responsible for repairing and maintaining the drains which are under their own land. However, failure to do so could lead to a claim in nuisance if the disrepair then causes damage to your land.

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.