BERNEL LIMITED V CANAL AND RIVER TRUST [2021] EWHC 16 (Ch)
THE DECISION
His Honour Judge Cawson QC found that the Claimant was not a riparian owner with the benefit of riparian rights nor had it acquired an easement by way of prescription under the doctrine of lost modern grant (20 years’ user). Therefore the Judge found that the Claimant was not entitled to the declaratory relief it sought to allow the Claimant to drain surface water and treated sewage effluent from its site onto feeder land owned by the Defendant.
THE TWO PART CLAIM
The Claimant was a freehold owner of a site comprising a dwelling, a garden and an adjoining field. In light of the proposed development of further houses on the field, the Claimant sought to discharge surface water and treated sewage effluent from its site onto the Defendant’s neighbouring land. Given the lack of permission from the Defendant on appropriate terms, the Claimant sought a declaration from the Court confirming that it had a pre-existing right to do this:-
- As a riparian owner given that the pipe running through its site was a culverted natural stream or watercourse into which the Claimant was entitled to discharge the water flowing onto the Defendant’s land (“Riparian Declaration Claim“); or alternatively
- Through an easement acquired by prescription under the doctrine of lost modern grant (“Prescription Declaration Claim“).
RIPARIAN DECLARATION CLAIM
The Claimant attempted to assert its rights as a riparian owner by suggesting to the Court that the pipe was a “culverted natural watercourse.” The Defendant resisted this assertion suggesting there was no natural watercourse or flow. The Judge examined the legal authorities and provided the following simplified exposition of law (at para [81] of the judgment):-
- The fact that there may be some periods of non-flow is not incompatible with there being a natural watercourse;
- On the other hand, a dry channel which is only filled during temporary flooding is not a watercourse giving rise to riparian rights; and
- The question as to whether any temporary flows as may have occurred along a particular course is a watercourse is a question of fact for the Judge to decide.
The Judge considered the extensive expert evidence on, inter alia, the site and the catchment and concluded that there was insufficient evidence of a flow of water off the catchment along the course of the pipe to lead to the conclusion that there was a natural watercourse that had been culverted. The Judge stated that if such rights had been established, the Claimant’s proposals would have been permitted.
PRESCRIPTION DECLARATION CLAIM
The Claimant asserted, in the alternative, a drainage easement acquired by prescription (i.e. a 20 plus year use of the pipe to discharge the water onto the Defendant’s land). Again, the Judge provided a helpful clarification of the legal hurdles that need to be crossed in order to succeed in a claim based upon prescriptively acquired drainage easements, namely (at para [109] of the judgment):-
- The establishment of an upwards of 20 years’ user;
- The established easement’s accommodation of the whole of the site in question so as to constitute the whole of the site as the dominant tenement, applying the comments from Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2019] AC 533 (at para [117] of the judgment); and
- Applying the two part test from McAdams Homes Ltd v Robinson [2004] 3 EGLR 93 (at para [107] of the judgment), the proposed user to not be impermissibly excessive (i.e. an increase in intensity of use of easement cannot be objected to unless the development represents a radical change in character or identity of the dominant land resulting in a substantial increase or alteration in the burden on the servient land).
The Judge found that the evidence was unable to establish an upwards of 20 years’ user and the easement would not have accommodated the dominant tenement as a whole in any event (although the user proposed would not have been considered excessive).
COMMENT
The Judge’s breakdown of the legal principles provide a welcomed clarification of the law and tests to be applied relating to riparian rights and drainage easements. In light of the above this case is likely to prove of practical assistance to developers in understanding the limits of its actions in relation to drainage in aid of its development, and whether a claim for declaratory relief is required and is likely to succeed.
Developers should have these principles in mind at all times, and also make sure the factual and expert evidence is up to scratch to satisfy the Court of its entitlement to drainage rights. The Judge in this case made clear on a few occasions that many of these matters were a question of fact. Indeed, this particular claim failed on its own facts and expert evidence.
Going further, the good news for developers is that if there is a prescriptively acquired drainage easement in place, the onus seems to have been squarely placed on downstream owners to police the situation, consider bringing a claim and satisfy the difficult McAdams Homes Ltd v Robinson [2004] 3 EGLR 93 test. The question remains: will the Judge’s findings extend to the law of easements generally? We will have to wait and see.
RAGHAV TRIVEDI
Barrister at St Philips Chambers, Birmingham
The post A welcomed clarification of the principles relating to riparian rights and drainage easements acquired by prescription appeared first on Worcestershire Law Society Bulletin.