Drainage Disaster or the Natural Flow of Water?
Picture the scenario; you own land (in particular, a field) next to a motorway (in particular, uphill from that motorway). For years water from your field has drained, perfectly naturally and without issue, over the land on which the motorway runs. All of a sudden, however, the natural drainage is stopped and you have a significant flooding issue.
What do you do? It’s seemingly a disaster- particularly as you have no drainage rights in your titles. Is that the end of the issue?
In short- no.
It has long been established that water outside a definite channel is permitted to drain with the natural inclinations of the land, such that water flowing naturally across uphill land is permitted to flow downhill and onto neighbouring property.
It is a right which is often overlooked and, indeed, it’s been a while since we’ve had a decision discussing the concept of the natural flow of water and property rights associated with that.
However the matter came to the court’s attention in Hamilton v the Scottish Ministers http://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2017csoh121.pdf?sfvrsn=0
Mr Hamilton successfully asserted that water flow from his land onto the M74 was in consequence of a natural right of drainage; the issue not being the principle itself, but rather the point as regards when does such flow cease to be “natural”. The principle has developed so that it is not necessary that land remain uncultivated so as to benefit from the right; works are permitted which may interfere with the natural flow, so long as they are reasonably carried out with a view to cultivating the land. In the case at hand, Mr Hamilton had constructed a drainage system.
Evidence was led by both parties at a Proof Before Answer. The defenders contended that the failure of Mr Hamilton’s drainage system was due to a number of factors, including a lack of maintenance on both the part of the pursuer and the local council.
Mr Hamilton convinced Lord Mulholland that he had a natural right of drainage. It was found that the obstruction preventing Mr Hamilton’s drainage system from operating effectively was located on the verge of the M74, therefore it was the M74 interfering with this established right.
Three important prongs of Lord Mulholland’s decision centred on the fact that:
1. Firstly, alternative cases for the flooding had been excluded
2. Secondly, the topography of the ground is consistent with the natural right of drainage (that is water running from higher ground to lower neighbouring ground)
3. Thirdly, the dimensions and material of drains on the pursuer’s land match the dimensions and material of the drains on the motorway verge (proving that the water’s natural path was via this drain channel which had been damaged and rendered ineffective by the M74).
Although this case does not alter the existing legal position, it is worth refreshing our memories on how the natural right of drainage can be interpreted by the courts. With a world threatened by climate change, cases like this could become increasingly more relevant.