Drainage Rights: Don’t get Caught in Deep Water

If you are a developer, you may be pleased to find that the courts are now taking a more developer-friendly approach to the exercise of prescriptive rights. Although as a developer, you must consider any necessary rights of drainage, the recent decision of Bernel Ltd v Canal and River Trust [2021] EWHC 16 (CH) provides useful commentary for developers moving forwards.

The facts

The developer Claimant had planning permission to build 9 new homes on land off Sugar Street, Rushton Spencer, Macclesfield (“the Site”), and issued proceedings for a declaration enabling it to  discharge surface water through an unused pipe (“the Pipe”) into the neighbouring Defendant’s land, situated to the south west of the site.

The Claimant sought a declaration that the Pipe amounts to a culverted natural stream or watercourse and therefore the Claimant is entitled to discharge surface water and treated sewage effluent from the properties through the Pipe and onto the Defendant’s land as a riparian right. Alternatively, the Claimant sought prescriptive drainage rights to drain onto the Defendant’s land by long use.

The court rejected both arguments, but the case provides useful commentary on the use of prescriptive rights.

The Judge held that there had been no evidence of significant surface water historically being drained from the site. Therefore the Claimant did not have a riparian right because there was not a natural watercourse.

The McAdams test was explored by the Judge against the expansion of the benefitting site test (Harris v Flower). The question to consider under the McAdams test was whether the development of the land amounted to a ‘radical change in character’ or a ‘change in the identity’ of the land. If these two tests are satisfied, a prescription claim will fail because the use of the land has extended past that for which it was granted.

The Judge considered whether under the benefitting site test (Harris v Flower), the benefitting land had been expanded in size. The Judge found that the easement only accommodated part of the Claimant’s site i.e. in the immediate vicinity. This meant that the whole site did not benefit from the prescriptive right to drain.

There are a key couple of takeaways from this case. As long as a development does not increase the flow through the watercourse, changes can be made to the watercourse to accommodate a development. The McAdams test was re-stated by the court. To defeat a claim by a downstream owner, a developer has to show that a prescriptive right is being used in a radically different way, or that it changes the identity of the land.

The court established that the burden of proof would be for the downstream owner as opposed to the developer.

If you have any queries regarding drainage or water rights, please contact Sarah Finch in our Property Litigation team who would be happy to help.