A key consideration when developing any plot of land is to ensure that the land has all the rights that are required over adjoining land for the benefit of the development. Required rights will usually include rights of drainage.
In the case of Bernal Ltd v Canal and River Trust, Bernal Ltd (a developer) sought to establish a right to drain surface and foul water from its development site onto land owned by the Canal and River Trust (CaRT) and from there into a canal.
The development site comprised an existing single dwelling with garden and immediate curtilage and an adjacent large field. There was a pre-existing drainage pipe serving other properties that ran through the development site and onto CaRT’s land.
Bernal claimed that the development site enjoyed the right to drain through the existing pipe on two bases:-
- That the existing pipe was a cultivated natural stream such that, as a ‘riparian owner’, Bernal enjoyed a right to drain water into it; or
- A right of drainage had been acquired by ‘prescription’ (long user)
The court dismissed both limbs of Bernal’s claim.
The court did not consider that the pipe was, or had been, the site of a culverted natural stream or watercourse that would give rise to riparian rights for the benefit of the development site.
In relation to the claim for “long user”, the court found no evidence that significant amounts of surface water drained from the development site itself through the pipe. The pipe actually served other properties in the neighbourhood and not the existing residential property on the development site.
When undertaking development, it is vital to ensure that all required easements are in place. Sometimes, the existence of a pre-existing easement is not sufficient for a new development.
It is not always clear what land benefitted from the easement. Even if the development site benefits from an easement, the change in character of the development site might be such (particularly where there is a substantial increase in the burden of the easement on the neighbouring land that is subject to it) that takes the proposed new use outside the scope of the existing easement.
If you have any questions regarding this case or a potential development site, then please contact Jon Mason.