Where a development is located next to a water course (which can be one of a number of things including a stream, ditch and/or culvert) it is important to be aware of the riparian rights which could permit the drainage of surface water and treated foul water to the benefit of a future development.
A riparian owner has a number of rights which include a right to discharge into the watercourse (as long as such discharge does not interfere with other riparian owners’ rights downriver) however these rights are rarely explicitly set out and, as made clear by the Bernel Ltd v Canal & River Trust 2021 case earlier this year, delivering a drainage solution for a development in reliance of prescriptive rights or riparian rights can be risky.
In the above case, the developer obtained planning permission to build nine houses on their land which drained through an old pipe onto the Canal & River Trust’s land on the assumption that the pipe could be classified as a watercourse and that the land had the benefit of prescriptive rights to drain therein. The High Court found that the old pipe could not be classified as a watercourse (and so the land could not benefit from riparian rights) and the prescriptive rights claim failed on the basis that the Developer was unable to provide sufficient evidence.
It is worth noting that the High Court took an additional step to confirm that even if prescriptive rights had been properly evidenced, the radical change of use of the land meant that the prescriptive rights claim would have failed in respect of the property once built out pursuant to the planning permission obtained. The High Court also took the view that had riparian rights been established, then surface water and treated foul water (combined with a licence from the Environment Agency) would have facilitated the proposed drainage solution for the developer.
If you have any drainage solution queries, please do not hesitate to contact us in order to discuss the existence of any rights, the possibility of obtaining indemnity insurance and/or formalising an easement to drain through third party land.