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Blocked land drain on private land causing flooding

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Blocked land drain on private land causing flooding

Postby aitch » Mon Nov 27, 2017 8:27 pm

Hello

To the rear of my property behind my back garden & garage is a piece of land, it is unmade grass, mud & stones. I do not own this land. I will call this (land A). Further behind this land is a wall which has another neighbours land on the other side, again unmade land, the owner keeps chickens etc on it. I will call this (land B). Behind this is a moor-land hill.

Under both these pieces of land is a land-drain which carries water underground from the moor. The part of this drain under (land B) consists of a large stone made culvert, a kind of sump or cistern that used to feed a now disused well under (land A) on my side of the wall & then the water would flow safely underground in another culvert before discharging safely into a watercourse in a field that runs at the side of my property (land C). The well was covered in the 1960s. The water flows under the ground in the direction of land B, land A, & into the watercourse on land C.

The large stone made culvert underground (land B) has a smallish outlet near the bottom left hand side which allows water to trickle through at times of normal rainfall (I managed to get photos years ago when an inspection hatch was opened, this is now underground). This part of the (land B) land-drain culvert works a bit like a cistern & it must have had an overflow nearer to the top to allow water to discharge safely under and into the (land A) culvert at times of heavy rainfall to prevent overflowing and flooding, hence the size of the culvert. I used to be able to hear the water gushing fast under (land A) land at times of heavy rainfall.

The overflow part of this drain system (land B) has been blocked underground just behind the wall.
As a result of this blocked overflow at times of heavy rainfall the land-drain culvert under (land B) now fills up & floods over the surface & causes flood water to discharge under the wall on the surface of the land (land A) this then floods my garage & home which is set on lower land further down the hill in direct line with this flooding. This water should be flowing under the ground in the culvert on (land A) as it used to do & discharging into the watercourse in the field and running at the side of my house. Instead it now flows over the surface and directly into my garage/garden/house. This can be a heavy flow of water, like a small stream, not just a trickle. I have photographic & video evidence of this.

Both (land B & A) landowners refuse to take any responsibility for the drainage system & will not do anything to repair it unless forced.
The owner of (land A) does not live here, he lives 15 minutes away and because (land A) is 'waste land' & never maintained by him I dug out a surface trench which catches this flood water & carries it safely over the surface into the water-course. This remained in place for several years, but now he has filled it in & refuses to allow it, I dug it out again & he filled it in again leaving me under the constant threat of flood.

I have tried to get the local council to take enforcement action against the landowners, but after Months of dragging their feet about making a decision they have refused any further help despite having permissive powers under The Land Drainage Act 1991, section 25 and the Public Health Act 1936, both of which allow the council to recharge the landowners if they refuse to do remedial work voluntarily. The reason given by the council is ‘they are not prepared to commit any further public resources for exploratory or legal costs at this time’. I thought the council had a legal obligation in this respect but apparently not.

(The council did a cctv drain survey which proved unsuccessful, they took the easiest option and went in from the wrong end of this drainage system, the opposite end that I advised them to view the drainage system from. They took the easy option because otherwise it would have entailed the council applying for an Access Order under Section 1 of The Access to Neighbouring Land act because the land owner refused to allow access voluntarily).

The police have been here & asked the (land A) landowner to allow the emergency trench to remain in place until the drain is fixed. He refuses & fills it in. The police say they cannot force him as its a civil matter but surely this could be classed as harassment as he is aware of the flood risk, and also refusing to fix the drain? We live here & he does not. The emergency trench was harming no one.

I have asked the police to act under section 2(1) of the Anti-Social Behaviour, Crime and Policing Act 2014, they refuse this request stating again that it is a civil matter. My argument has been that it is his ‘intent’ that changes it from a civil matter to a criminal one because he knows if he fills the trench in it will lead to flooding at a future date and he refuses to fix the drain. Therefore, his ‘intent’ is to cause flooding. But the police won’t consider this. Maybe I am wrong about this? Or are the police wrong?

The landowners have been asked to remedy the problem but they ignore all reasonable & neighbourly requests. As the council and the police wont help I need to take legal action against both landowners.

I am considering applying to the court for an injunction to try and force the (land A) landowner to leave the emergency trench in place until the drain is fixed as a short term solution. Alternatively if I do not apply for an injunction or I am not granted one would I be legally entitled to dig the emergency trench out in the event of any future flooding to protect my property under Riparian law and would I be entitled to sue for compensation from the (land A) landowner if the house floods again as a result of him filling in the trench?

He is fully aware of the problem & has had a letter, he refused a recorded delivery letter so I took it in person with photographs. I think I have a case for nuisance and harassment under section 2(1) of the Anti-Social Behaviour, Crime and Policing Act 2014 against the (land A) landowner (as above) as he is aware of the likelihood and risk of flood by his action of filling in the emergency trench & refusing to repair the drain? As previously stated his intention in filling in the trench is to cause flooding to our property and the above law states:

(1)In this Part “anti-social behaviour” means—
(a)conduct that has caused, or is likely to cause, harassment, alarm or distress to any person,
(b)conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises


In addition would I also be entitled to sue (land B) landowner for compensation if the house floods again as a result of him refusing to unblock the drain on his part of the land?

Any suggestions about the best course of legal action to take about all this would be gratefully received. I simply want the drain problem rectified, I would rather not have to resort to the law & courts to get this matter resolved but I can see no alternative. What would be the simplest and most effective course of action to get this matter sorted out?

Many Thanks
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Re: Blocked land drain on private land causing flooding

Postby dls » Tue Nov 28, 2017 1:18 pm

The first thing is to take care. The law on this is not always obvious, and when it is clarified, it can be difficult to apply it to differing factual circumstances.

In general, if water flows off a hill onto your land, perhaps even causing flooding, the owner of the higher land does not have responsibility for it.

That can change. It requires first that he alter his land in some way so as to accumulate the water. It might be arguable that in creating a drainiage system, and so arranging things that water collects and comes through it in a new way, he has taken responsibility for it.

You need to look at teh rule in Rylands v Fletcher, and more generally the law of nuisance.

I keepusing the word 'generally' because individual arrangements do vary hugely, and it is an area of law with complex and not very logical exceptions.

You need to examine the title to your land to see what rights are granted.

There is no obvious general ight to enter on someoneelse's land to dig a ditch, and nor is there, withoutmore, a right to require a neighbour to spend any money to protect your land.

Last, never fall out with your neighbours. Battles can be hugely expensive and the outcomes not easily predicted, and if you win one battle, another can always be just around the corner.
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Re: Blocked land drain on private land causing flooding

Postby aitch » Tue Nov 28, 2017 4:20 pm

Thank you for the reply dls.

I will find the Rylands v Fletcher case law and read it carefully. This has become a big problem for me. It's too late not to fall out with the neighbours, in fact I was recently physically assaulted by the [land B] landowner for reporting the blocked drain under his land to the council enviromental services. The police were involved but dropped the case due to insufficient evidence. I believe this drain was deliberately blocked by one of these neighbours but I cannot prove it. I wont go into the circumstances here but partly this is why I need access to the drainage system to get proof or at least identify what is causing the blockage and get it rectified.

I'm not really interested at this stage in why the drain is blocked what I really need is to find a legal way of getting it unblocked otherwise I am living in constant fear of flooding in bad weather. The house has already been flooded twice, the only thing that has prevented it from flooding several times since is the trench I dug out, which has now been filled in. There has to be a way of getting this sorted out and I urgently need to find it. Thanks again for your advice I greatly appreciate it.

Aitch
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Re: Blocked land drain on private land causing flooding

Postby atticus » Tue Nov 28, 2017 5:27 pm

I doubt that Rylands v Fletcher will assist, even if you can understand the case. It is a House of Lords decision from the 1860s arising out of a defectively constructed lake that flooded a mine!

The principle* is that
- If you bring on to your land
- as a "non-natural" use of your land
- something which you can foresee will cause damage if it escapes
- and which escapes
- causing that foreseeable damage
you are liable.

I would look at action under nuisance, negligence, and the Access to Neighbouring Land Act. You may need to get good legal help.

Has your insurance company suggested anything? Do you have legal expenses cover?

*from memory - the rule in Rylands v Fletcher and its subsequent development by the courts was the subject of my Masters' degree dissertation 13 years ago!
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Re: Blocked land drain on private land causing flooding

Postby Millbrook2 » Tue Nov 28, 2017 6:18 pm

Can you dig a trench on your land at the boundary to take the water away?
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Re: Blocked land drain on private land causing flooding

Postby aitch » Tue Nov 28, 2017 6:20 pm

Thank you Atticus your reply is greatly appreciated. As I write it is raining heavily outside and I am like a cat on a hot tin roof. I still wonder about approaching the court to try and get an injunction to keep that trench I dug in place as an emergency measure as I'm sure this going to take some time to get sorted out. It's not an ideal way to proceed though and I'm not at all sure I would be granted an emergency injunction, or indeed if I really want one. The only alternative is to dig out the trench again if it starts flooding & then that will lead to further conflict with the landowner, the police will be called again, I could get get arrested if any breach of the peace occurs. The police will inform me that landowner [A] is within his rights to fill in the trench and will then proceed to fill the trench back in. Caught between a rock and a hard place. Thanks again for your input.

Aitch
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Re: Blocked land drain on private land causing flooding

Postby aitch » Tue Nov 28, 2017 6:30 pm

Thank for the question Millbrook2. The answer is its not really possible. Directly in front of the land where the drains are under is my garage & a concrete path s I cannot dig there. further down is my garden. but the layout of the garden is such that I cannot really dig a trench across, there's too many other obstacles like trees and no direct way of re-directing the water back into the watercourse. The land at the back is waste land and the most obvious place to dig a trench. The fire brigade originally dug a crude version out the first time we were flooded and called them out. They advised me to make it deeper which I did. It's been in place for several years until a few Months ago when landowner [land A] filled it in. Thank again Millbrook2 for your input.

Aitch
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Re: Blocked land drain on private land causing flooding

Postby atticus » Tue Nov 28, 2017 6:55 pm

If you are considering court action, please take legal advice. The cost to you of getting it wrong could be crippling.
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Re: Blocked land drain on private land causing flooding

Postby aitch » Tue Nov 28, 2017 7:47 pm

Thank you Atticus, I'm very wary of the injunction course of action myself so your advice is well received. In answer to your earlier question my insurance does not cover legal expenses unfortunately, so thats another lesson learned the hard way for me, pay a bit more and get better Insurance. Thanks again for your input.

Aitch
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Re: Blocked land drain on private land causing flooding

Postby theycantdothat » Tue Nov 28, 2017 9:40 pm

The starting point is that all land has a natural right of drainage, that is to say drainage through undefined channels. However, the law does not allow you to do something on your land so that surface water no longer flows to where it would flow naturally or flows at a greater rate so that the neighbour's land is at risk of being flooded. However, what we have here is not a case of someone making changes to his land by altering its contours or by building on it or otherwise making the surface impermeable, but interference with or failure to maintain a drainage system. Can an obligation be imposed on a landowner to maintain a drain to prevent his neighbour's land from flooding. I think the answer has to be that it can by means of a negative easement operating in the same way as right of support. The easement will have to have been implied on a sale, expressly granted or acquired by prescription. Aitch needs to seek an opinion from a suitably qualified property lawyer in possession of all the facts and title details. As to that, he should look at his house and other insurance policies to see if he is covered for legal expenses.
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