Flooding, water and drainage rights for land in Scotland

Floods are ‘acts of God,’ but flood losses are largely acts of man. – Gilbert F. White

The effects of an ever-changing climate is putting further importance on the understanding held by landowners and neighbours alike regarding their rights & responsibilities in relation to water and drainage. This short article will concisely explain and expand on these rights & responsibilities.

Legal position

Drainage rights can arise via either the common law or by written agreement (such as a deed of servitude). This article will focus on drainage rights arising by common law. Such rights, by their nature, need not be recorded in the Land Register or General Register of Sasines.

The common law holds that a landowner whose property sits higher (the “Higher Owner” and their property being “Higher Property”) than an adjacent neighbouring property (the “Lower Property” and the owner being “Lower Owner”) has the right to have natural water outside a controlled channel (such as a river or a burn) drain onto the lower land. Essentially, this means that water which arises naturally, whether from the sky or from neighbouring land, is permitted to drain with the natural slope of the land.

This common law right applies to both surface and underground water and is imprescriptible, which means it cannot cease with the passage of time. This means the Lower Owner must accept the natural flow of water, whether this causes their property damage of not. It is a matter for the Lower Owner to put in place drainage to deal with this natural flow of water – however, any drainage system must not obstruct or ‘push back’ the natural flow of water causing the Higher Property to flood. This could lead to an action for damages against the Lower Owner.

This common law right, whilst broad in its scope, has limitations:

• The Higher Owner cannot alter the route of the drainage so that it no longer follows the natural lie of the land. For example if the drainage runs to the west, it cannot be re-routed to flow east;
• This right only applies to water that occurs naturally, such as rain or river water; and
• The Higher Owner cannot overstretch the right to the detriment of the Lower Owner and their property.

Overstretching the right

As above, the Higher Owner cannot overstretch their right of drainage. Prominent cases in this area, such as Campbell v Bryson (1864) and Logan v Wang (UK) Ltd (1991), have held that in order to overstretch the right:

• the exercise of the right must have caused the damage to the Lower Property; and
• the actions of the Higher Owner must have amounted to an “undue pressing of their right”, which is essentially a lawyer’s way of saying “chancing their arm” with damaging consequences for the Lower Property.

In my view, overstretching a drainage right is comparable to exercising a servitude non-civiliter, by increasing the burden on the burdened property. The type of use of the drainage right may  not change, but the manner in which it is used goes beyond what it should to the detriment of the neighbouring proprietor. An example of overstretching the right would be if the Higher Owner undertook any works or development on their land that resulted in  the natural flow of water being redirected or increased (for example, by moving earth), causing damage by flooding the Lower Property.

There is no hard and fast rule when it comes to deciding whether the right has been overstretched or is causing the Lower Owner undue damage. Each case will be decided on its own facts.

Man-made drainage systems

The Higher Owner has the right to gather the draining water (including by means of man-made drainage systems). These systems can be used to control, redirect, transport or manage the flow of water from a property so long as the burden on the Lower Property is not increased. The Higher Owner does not need to seek consent from the Lower Owner when installing a drainage system, as long as the drainage system follows the natural drainage flow; is contained entirely within the Higher Property’s legal boundaries; and is in the natural use of their property, such as agriculture. The Lower Owner would be entitled to object if he/she believed the drainage system would increase the burden on the Lower Property, however the burden of proof would fall on the Lower Owner to evidence the increase burden and likelihood of resultant damage to the Lower Property.

Conversely, if a field or plot of land is being developed into a housing estate, then the developer would have to seek express servitude rights of drainage with the Lower Owner(s) if they were looking to put in a man-made drainage system which altered the natural drainage flow in terms of direction or volume which would cause, or had the potential to cause, damaging consequences for the Lower Property(s).

It is vitally important that all drainage systems are properly maintained. If a malfunctioning system creates flooding damage to neighbouring properties, that would not have occurred otherwise, then this could lead to a claim against the Higher Owner for damages.

Remedies & Defences

There are a number of remedies available to an owner whose land is being flooded through the action or inaction of a neighbour:

• Declarator: this is where an owner would seek the court to formally declare the existence of a legal right or responsibility. This could be used if the owner was seeking the court to declare they do have a right of drainage over a neighbour’s land or the extent or breach of a right.
• Interdict: this is where an owner would petition the court for an order that stops another owner from undertaking or continuing unlawful actions or actions that are causing or will cause undue damage.
• Damages: this is where an owner seeks financial redress in the sum of the loss suffered as a result of the neighbour’s action or inaction.
• Ad factum praestandum: this type of order seeks the performance of a specific act. Thus, an owner could seek to have certain works carried out to restore the previous status quo.

There are defences available to those defending an action  that proceeds on the basis of an overstretching of drainage rights, which may include:

• There is no overburdening of the Lower Property, and/or there is no loss to the Lower Owner;
• Action or inaction of a third party: the defender would not be liable for any damage caused if they were able to prove that the fault lay with a third party (such as an independent contractor or neighbouring landowner).
• ‘Act of God’: The defender would not be liable for undue flooding damage to a neighbour that was the result of an extreme natural event (the ubiquitous ‘Act of God'”. This could range from severe weather to any other kind of unforeseeable event).

Conclusion

As mentioned above, there is no hard-and-fast rule when it comes to determining any overstretching of the right of drainage resulting in damage to a property. Landowners and developers – both public and private – need to be mindful of the implications any works will have on neighbouring properties and ensure that any modifications to existing systems do not prejudice, or have a reasonable likelihood of prejudicing, said properties.

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