Jane Rees, Associate Solicitor at Berry Smith LLP, considers the difficulties faced by land owners affected by the flow of rainwater from higher land.
It is commonly known that land owners have a measured duty of care to ensure that they do not do anything on their land that would cause damage to neighbouring land, failing which a claim in ‘nuisance’ may arise. Indeed, in the case of Miller v Jackson [1977] Lord Denning said; ‘the very essence of a private nuisance … is the unreasonable user by a man of his land to the detriment of his neighbour’.
Moreover, a landowner owes a general duty of care to neighbouring land in relation to a hazard occurring on its land, whether such hazard is natural or man-made. In the case of Leakey v National Trust for Places of Historical Interest or Natural Beauty [1980] LJ Megaw said; ‘duty is a duty to do that which is reasonable in all the circumstances …’
Therefore, if a landowner does something on their land which results in flooding on neighbouring land, they could be liable in a nuisance claim in which remedies can include an injunction (compelling them to undertake necessary works to stop the flooding) and / or damages to compensate for any financial loss suffered by the neighbour.
Example: If your neighbour installed a pond in their garden and failed to maintain it to such an extent that the pond flooded into your land, it would not be difficult to ascertain liability.
But what if rainwater flowed from your neighbour’s land into yours causing damage?
It is important to recognise that rainwater is considered differently because it is naturally flowing. As such, there is generally no liability for the ‘natural’ fall / flow of rainwater.
However, there are steps you can take to protect your property: –
- If your property sits lower than that of your neighbour.
Whilst caselaw[1] tells us that an owner of lower-lying land ‘… has no ground of complaint and no cause of action against the higher occupier for permitting the natural, unconcentrated flow of water, whether on or under the surface…’ an occupier of lower land is under no obligation to receive the water from the higher land.
As such, the owner of the lower land could erect barriers to stop the flow of water, even if that meant that the water damaged the higher land. Of course, reasonable care and skill must be used and the occupier of the lower land must ensure that they do no more than is reasonably necessary to protect their enjoyment of their own land. Action going beyond what is reasonable is likely to render the owner of the lower land liable in nuisance and / or trespass. Therefore, much care ought to be taken when considering what works can be done to protect your property.
- If your neighbour pools and artificially directs rainwater onto your land, that is likely to amount to an unreasonable interference with the enjoyment of your land. In this situation, it is likely that you party would be able to pursue a claim in nuisance against your neighbour with a view to obtaining (a) an injunction prohibiting your neighbour from channelling the water onto your land, and (b) damages relating to any financial losses suffered, e.g. the cost of remedial works required at your property.
Please note that this a brief summary and is not intended to be legal advice. Please contact us if you would like more information about the issues raised in this article or any other aspect of property law / nuisance law at 02920 345 511 or dispute@berrysmith.com
[1] Home Brewery Co -v- William Davies & Co (Leicester) [1987]
