Drainage - legal rights.

[PhilipB]

Farmer X takes on a new patch of land that has a ditch network that feeds into a stream that has an inadequate culvert under a road so the house of neighbour Y floods in exceptional weather situations.

The ditches are in bad condition. Can farmer X clear them without being responsible for any increased risk of flooding of neighbour Y?

 

[teslacoils]

Presumably the stream and culvert are not on your land or your responsibility, and there is nothing specific in the deeds, and that the ditches you wish to clear are fully owned by you, or you have the right to maintain?

 

[PhilipB]

Presumably the stream and culvert are not on your land or your responsibility, and there is nothing specific in the deeds, and that the ditches you wish to clear are fully owned by you, or you have the right to maintain?

Well, the land of 'farmer x'

So ditches his, running into someone else's land, then the culvert is presumably highways agency, or similar.

 

[teslacoils]

 

[Goweresque]

If you're merely maintaining the existing network of drainage ditches then you have no legal responsibility for what happens to the water downstream. Everyone has to take water from above via an existing network of drainage. If you created a whole new system of drainage that funnelled the water straight into a neighbouring house, or created a new non-agricultural source of storm water then you would have a problem,but long established ditches draining agricultural land are fine to be maintained, or indeed to have drainage installed in the land itself.

Moral responsibility is another question though.......in this scenario are you Farmer X or House owner Y?

 

[teslacoils]

Imagine if farmer z was upstream of farmer X, and farmer X lack of maintenance stopped farmer zs drains working and flowing away ...

 

[Dry Rot]

If domstic housing is being flooded, you will probably find the council should be able to help. Have a word with your local councillor with farming connections. Don't know what the situation is in Engalnd but up here we have a council Flood Team who sort out such problems.

Drainage law is quite complicated and disputes tend to be expensive. Best get a land agent experienced in such matters and not rely on advice from a farming forum!

 

[PhilipB]

If you're merely maintaining the existing network of drainage ditches then you have no legal responsibility for what happens to the water downstream. Everyone has to take water from above via an existing network of drainage. If you created a whole new system of drainage that funnelled the water straight into a neighbouring house, or created a new non-agricultural source of storm water then you would have a problem,but long established ditches draining agricultural land are fine to be maintained, or indeed to have drainage installed in the land itself.

Moral responsibility is another question though.......in this scenario are you Farmer X or House owner Y?

I agree that moral responsibility is a different thing.

In a sense I'm neither X nor Y because I've simplified the situation to ask a simple question... But I'm certainly more X than Y...

 

[Steevo]

Farmer X takes on a new patch of land that has a ditch network that feeds into a stream that has an inadequate culvert under a road so the house of neighbour Y floods in exceptional weather situations.

The ditches are in bad condition. Can farmer X clear them without being responsible for any increased risk of flooding of neighbour Y?

I would say yes of course as it is maintenance.

The inadequate culvert is the issue.....but rarely is anyone too keen to upgrade such infrastructure. There is an obligation to take water from above and pass it on downstream, but I don’t think this extends to requiring infrastructure upgrade to accept more flow.

Hence why it gets complicated.

 

[Exfarmer]

Very tricky one. The lamdowner has no right to flood the road as roads have rights of drainage off.
However normal ditch maintenance should not cause issues and an existing culvert which is properly maintained with a good outlet will take a huge amount of water.
I suspect the ditch the far side of the culvert is at the footof the problem and that is not farmer x’s responsibility, possibly house owner y’s.
very often culverts are chock ablock with rubbish and this is the reason for poor flow

 

[PhilipB]

Useful stuff, thanks.

The situation is more complicated because a mile down the road is a village, and in that village, in the 70s a developer thought it would be a good idea to culvert the stream (which all of this is in the drainage basin of) and build houses on top of it....


Hence the village floods. Hence the environment agency is more keen to hold water in the area of the land and houses than to facilitate it in rushing its merry way down to the village.

 

[Exfarmer]

I believe that you have the right to drainage and so the EA should compensate if they want to take it away. The compensation would be high! simplest solution would be a holding pond which releases the water slowly

 

[holwellcourtfarm]

Have a read of the court case "Bybrook Barns vs Kent County Council". It caused a real stir at the time and sets the legal precedent around this situation.

My understanding is that you are entitled to clear your ditches, it's the inadequate culvert that is the issue.

 

[PhilipB]

Useful stuff, thanks.

Next question- oh I'll start a new thread...