Rights of Land Drainage

[floored]

Can anyone help to answer my question?
If estate house (A) is bottom house on a slope and natural ground water from the garden drains downward to undeveloped land, can a different developer years later build a house (B)below house (A) and raise the level of the land above house (A) land so the water no longer drains towards his house but is dammed back onto land (A). Having done so causes house (A) land to become boggy and have no natural drainage.......
Does house (A) land have to have been draining that direction for more than 12 years since built to have the right to drainage...OR... did the right exist prior to house (A) being built, considering that the land always drained that way naturally.

If the 12yr rule applies then when does the right start ie. date house (A) is sold........date house (A) is started to be built...OR..... date developer of House (A) bought the land that house (A) and others houses he may have built stand on. If house (A) deeds state that there is a right of drainage then does the right apply immediately?

 

[cornishbuilder]

firstly, from a planning point of view, you cannot do anything that has a "Physical" imact on anothers property without their consent so weather it has been there for 12 years or five minutes it makes no difference, an aggreement for provision of drainiage would have to be reached between the two relevent parties and stated in any application that is being made to build.
secondly, as far as i am aware the 12 year rule related to land CLAIMS where being if you have occupied the land for 12 years or more EXCLUSIVELY you can apply to the land registry to claim it as your own.(as long as there is no legal owner found). whether this is accepted or not is a matter for them to decide, but more often than not the council steps in and says "nope we're having that "(bitter past experience)
basically, if a developer wants to develop a site, they are responsible for the draniage of any water coming on to their site and any water that originates on their site.

Hope that helps

 

[floored]

According to The Council this is not the case and the developer can use the 12yr rule and drainage for House (A) is the owners responsibility and no right exists to continue allowing groundwater to flow downwards. Drainage will be dealt with under Building Regulations which are not in the Public Domain.

 

[cornishbuilder]

quite right, draniage for house A is the owners responisibility, however, allowing groundwater to build up buy means of a ground build up constitutes a "Physical impact" on house A and as such is a valid reason for refusal of planning permission. make no mistake, the rules, although sometimes a pain in the rear, are there to protect the interests of the owners of neighbouring properties!
planning permission may be granted with "conditions" that this is dealt with under building regulations but it is the developer of house B that has to bear the cost of this.
if you are in any doubt i would suggest that you consult a solicitor and NEVER take the councils word as gospel. they have to adhere to the law the same as everyone else.
additionally although building regs are not in the public domain, the council itself has to guarantee that the solution provided is suitable and if they pass it without any of the groundwater draniage conditions being met then THEY become liable, it is therefore very much in their interests that they get it right first time.
hope that helps

 

[floored]

Too late! This was done 8yr ago. I am just trying to ascertain if the 12 yr rule applies. Planning permissions and compliance with conditions are another matter and the Councils help in allowing this to happen are a different minefield.

 

[cornishbuilder]

i very much doubt it, think that may be a quiestion for your solicitor pal. but after 8 years i doubt there would be any comebacks anyway, seems like the 4 year rule would apply there.

 

[floored]

What about the nuisance which will happen each time heavy rainfall occurs and will continue. I am more interested in the 12 yr rule and whether it was applicable.

 

[jeds]

I'm not aware of a 12 yr rule with regards rights of way or rights of use. There's a 12 year rule on ownership - but that's a different thing.

You could possibly (possibly, not certain!) gain an easement of drainage after 20 years of continuous use but I guess that doesn't help you.

I think your best bet is to pursue the nuisance option. Although that's not going to be easy after 8 years.

 

[^woody^]

Under common law, land owners are responsible accepting and dealing with the natural flows and run off from adjoining land. The land owner can not create an obstruction to that natural flow of water. But it's a complex area of law

I too don't know what this 12 year rule thing is, or its relevance to land drainage

If there is a covenant or easement in the deeds, then that grants specific rights

 

[floored]

In the deeds/land registry entries it states that there are "rights of drainage" but it is not specific. It does not actually say that there is a right to drain onto the lower land.

 

[cornishbuilder]

this may or may not be useful to you, i know this is only ONE councils document but there may be some useful information in it especially page 2
. http://www.elmbridge.gov.uk/documents/detail.htm?pk_document=8396
there is also a link on it to the EA website who are responsible for groundwater drainage.

 

[floored]

Cornishbuilder: Thank you for the advice.
Am awaiting a response from the EA as to why this has happened as they did have an imput. There is more to this story, much more, a bit of jiggerypokey maybe.

 

[^woody^]

"rights of drainage"

This refers to existing drains

 

[cornishbuilder]

*There is more to this story, much more, a bit of jiggerypokey maybe*
Sadly, there usually is. hope you get it sorted.