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Blocked land drain on private land causing flooding

Land, Registered Land, Planning law etc.

Re: Blocked land drain on private land causing flooding

Postby aitch » Wed Nov 29, 2017 1:33 am

Thank you for your reply theycantdothat. What you say sounds very interesting although obviously I would have to research further or get full legal advice to fully understand the implication of what you say regards:

"negative easement operating in the same way as right of support".

and

"The easement will have to have been implied on a sale, expressly granted or acquired by prescription".

I understand that prescriptive easements take 20 years to become legal. I have had this house for 26 years.

Could the following apply?

In the deeds to this house it states the owners of these properties "have a right to pass & re-pass" [on land A's land] "for the purpose of drawing water from the Well".

I wondered if this easement could be legally used to force the land owner to open the land up where the 'Well' is situated? Obviously we no longer need to draw water from the 'Well', but if we have a legal right to draw water and cannot as is the current circumstance could this be enforced? We cannot at present access the 'Well' to draw water because of the concrete cover. Also the 'Well' needs maintenance from time to time which we are also prevented from doing because of the concrete cover.

I'm of the opinion that the drain was interfered with under the [Land B] landowners part of the land, near the wall that divides [land B] and [land A] this is because the flow of water runs under land [B] to [A] and the land immediately on the other side of the wall on land [A] was covered with concrete in the 1960's which would make it impossible to easily dig down there.

This drainage system is ancient. It worked perfectly for maybe 150 years without ever flooding. It was obviously put in place when someone decided to build the first houses on this land, to make the land free from surface water from the moorland hill behind. The [land B] landowner has a large stone built culvert under his part of the land. (I have photographs of this). This flooding problem only started after a planning dispute with the original owner of [Land B]. I saw him digging behind that wall on [Land B] and I think he has blocked some kind of overflow in the culvert that feeds into the 'Well' and 'Culvert' on [land A]. I cannot prove this though & he sold the land to the current [land B] landowner, who is a friend of the original owner & I am sure knows what the original owner did.

I'm sorry if this post sounds a bit muddled & repetitive, it's very late but I just wanted to get it written & posted, please ask for clarification if required.

Thanks again for your reply & to everyone that has replied so far.

Aitch
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Re: Blocked land drain on private land causing flooding

Postby gid » Wed Nov 29, 2017 10:55 am

The lowest cost option is usually to find some way of carrying the flow coming onto you land around your house, even if it involves heavy machinery, large drain pipes, etc. Legal options can be very expensive and can be very expensive to continually enforce.
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Re: Blocked land drain on private land causing flooding

Postby atticus » Wed Nov 29, 2017 11:29 am

But take care about creating a problem for land below yours!
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Re: Blocked land drain on private land causing flooding

Postby dls » Wed Nov 29, 2017 2:13 pm

I wondered if this easement could be legally used to force the land owner to open the land up where the 'Well' is situated?


Such covenants have in the past sometimes turnd out to be 'under-engineered'. In English law, I suspect that it would be read to mean that you can use the well as long as it exists, but nothing beyond that - ie no oligation to maintain it or ensure its continued existence, nor to oblige him either to spend money in any way upon it, or to allow you in any way to maintain it or do any works on it.

As has been suggested, i say again that these covenants can be quite tricky and unexpected, and that the factual surroundings vary hugely often with very varying legal effects.

It is also a hugely expensive area of law. To mix metaphors, you can stick your toe in and find that you have grabbed a tiger by the tail, and are unable to let go.

I would test whether there is any possibility at all of resolving the fooding issue by practical measure within yor own back yard. If that cost several thousand pounds it might easily be better, guaranteeing a good outcome, and a much more friendly neighborhood, and potentially being very much cheaper.

There are in these annals discussions involving a former poster here who through such a dispute appeared to have put her and her family's entire wealth at severe risk. We do _not_know the details or the outcome, but a brief visit toBailii will reveal tim and again a senior court bewailing teh parties spending hundreds of thousands of pounds through being unable to swallow the loss of ten inches of land (or similar). Whenever you hear yourself suggesting 'it's the principle of the thing' you should invite your better half to kick you violently in the seat of the pants.
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Re: Blocked land drain on private land causing flooding

Postby aitch » Wed Nov 29, 2017 5:13 pm

Thank you gid, atticus & dls for your comments. I understand what you are saying dls and in this instance it is nothing to do with 'the principle of the matter'. I wish it was because my 'principles' could very easily be abandoned in this case. But the fact is I need to get this drain and flooding issue resolved otherwise I am living with the threat of flood, actual flooding & continual confrontations with these people.

gid It would be hard to find another engineering solution to this problem, it was designed & put in place where it is because that is what worked best. But thank you I appreciate all feedback.

Also as as atticus states I have to be mindful about the land below mine, even if those further forward of this miserable drainage system appear to not have to consider my property or land below.

Also if I try to sell the house without getting it resolved Under Consumer Protection from Unfair Trading regulations the (CMA) along with the Trading Standards Institute (TSI) who now enforce the consumer protection regulations governing house sales, if a property is advertised and sold but information that is detrimental to the enjoyment of the property is not disclosed at the time and a buyer later discovers this, both the seller and estate agent could face criminal charges and up to two years in prison. There is, therefore, no option other than to pursue legal action to rectify this. although quite how I am going to manage this I am not sure. I cannot afford expensive legal fee's. If I upgrade my household insurance to include legal fees they will likely say I knew about the problem before taking out the insurance & cancel it.

The people I am dealing with understand no reasoning. What they understand is bullying people and getting their own way using fear & threats. I take on board what you said dls about such covenants possibly being 'under-engineered' but there is a part of me almost out of desperation feels like simply digging down on [land A's] land and attempting to un-block the drain myself. If Mr [A landowner] appears or calls the police I could wave the deeds under their noses & point out that I have a legal right to draw water from the well & you are preventing me. The police no nothing about these laws. I have had long chats with them about prescriptive easements etc, even emailed them details but they dont seem to get it. Mr A knows nothing per se. He only understands sending people up here in the pitch dark waiting around for me to arrive home in my car, and me then me realising that someone is standing in a very dark, lonely corner in a full balaclava that shouldn't be there and me reversing back out as fast as I can. Then later the same night someone walking around my house at 12.30 am with a torch. I live in a remote spot it's pitch dark at night, I have so, far avoided these thugs but in fact this incident only happened last week with a similar one a few weeks earlier & the police are visiting me this Friday to talk to me about it.

I doubt if I will just dig down and certainly I wouldnt attempt it without some extra backup, I am mainly venting my frustration but I have got to get this sorted out and in an affordable way, somehow. This problem did not exist when I bought this house. Why should I let them virtually drive me out of my home & de-value it into the bargain. There must be a way. How can neighbours be allowed to let another neighbours house flood when the situation is caused by a defective drain under their land, especially when I am almost 100% sure its been deliberately tampered with. This is not flash flooding, its basically vandalism.

Thanks again to everybody, the above rant has taken this post a bit off topic but I wanted to make clear the predicament I am in.

Regards Aitch
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Re: Blocked land drain on private land causing flooding

Postby blig » Wed Nov 29, 2017 11:46 pm

I've been reading this thread for a bit and keep wondering what would happen if the original poster approaches their water sewerage company and asks them to take over responsibility for this. It would need all parties to agree - probably unlikely here - but if they don't it does give the original poster the right of appeal to OFWAT. Another option but not without cost.
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Re: Blocked land drain on private land causing flooding

Postby aitch » Thu Nov 30, 2017 12:36 am

Thank you for your reply blig

I'm finding it hard to get anyone to take responsibility for this. Certainly the landowners [A] & [b] would never agree. I would be willing to try anything so I could approach my water company and see what their response is & then maybe appeal to OFWAT as you suggest. When I had the police here on the day that landowner [A] filled in the trench that I had dug out the police had originally sided with him because I was initially obstructing landowner [A] from filling the trench in. That was until the police viewed my video footage of the water flooding over the drain.

The police then spoke to me privately & said they could not believe any sane person would fill in a trench knowing how much water would flood into my property but still they couldn't order him not to do it. The police also said that I should try the water utility company as they belived the well should not have been covered, I'm not sure about that as the police are not experts in land law and the well has been covered for a long time (the 1960's).

I was waiting for a decision from the local council who at that time I felt confident would help. Now in the last week I have found out the council will not help. So you have jogged my memory about the water company and I will get on to them tomorrow, I've got nothing to lose and I can still research and pursue other options based on the good advice I've had from everyone here. Than you for your input blig.

I'm not quite sure what you mean by:

"Another option but not without cost"

but regardless an enquiry to the water company will cost nothing.

Thanks again Aitch
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Re: Blocked land drain on private land causing flooding

Postby dls » Thu Nov 30, 2017 5:04 pm

Is there no possible way you could catch the water within your own land and drain it out below your own property?

There is no point in blaming others, or saying that somebody else must deal with it. No matter how pig headed they actually are, they have no (yet demonstrated) obligation to do anything other than what they have done. They are free to dig up their own lan and use it as they wish. They have no need at all to apologise for doing just what they did. You were in the wrong in law trespassing on their land and digging out anything. No doubt they are now able to feel some justification for not dealing with you as they might. When teh developer bought your land, it was up to him to make sure it would have the necessary rights to deal with what is the most natural of effects - water flowing down a hill.

The hill existed before either plot of land was inhabited. As any plot is developed, it is entirely for the developer of the particular plot (and nobody else) to ensure that such matters are catered for within that plot, or that legal rights are obtained to support whatever works might later be required to achieve the effect wanted.

I know this is not wquite what you want to hear, and it remains possible that some right might be established, but it seems a way away. Until that exists, you must do whatever it is you can do within your own boundaries. That might be putting in a big drain or a barrier. Getting the Water Company to inspect seems to be a way forward, particularly if they can advise of a possible way ahead.
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Re: Blocked land drain on private land causing flooding

Postby aitch » Thu Nov 30, 2017 5:46 pm

Thank you for your advice dls. Yes I could demolish my garage and have a car hard standing and put a drainage ditch put there instead. I wonder what you would do if you were suddenly faced with a small river flowing through your back door and then through th house and out through your front door? Would you just stand there and do nothing? That is what happened to me and even then I did not dig the trench out, the fire brigade were called and they dug it out initially and advised me to dig it deeper. They did not seem to think it was unreasonable to do so under the circumstances and nor would anyone else. I have a right to protect my property from flooding. The trench is on waste land and the drainage system design worked perfectly for maybe 100 years until it was deliberately sabatogaged. I came on here to try and get some constructive advice, I accept most of the comments but really no one knows what they would do in an emergency situation like I found myself in. at times like that you just do what is necessary as long as you are not hurting anybody. I am not a deliberate law breaker and even the police seem to recognise this. I do not believe that there is no remedy to this without placing new drainage systems all over my property. People are responsible for drains under their land. I will find the solution to this and let you know how I did it in due course.

Regards Aitch
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Re: Blocked land drain on private land causing flooding

Postby dls » Fri Dec 01, 2017 9:33 am

We do not know the layout. Being severely miffed is very understandable.as sympathetic as we can be, there is no point us pretending that the situation in law is not as it is. You do not, as such, have a simple unlimited right to defend your proprety against flooding, particularly if that requires digging up somebody else's land.

There is no such thing in law as 'waste land'. It belongs to someone - and that person is entitled to not have it trespassed upon.

I wish I could tell you different, and again we are not from here able to say that there is no better answer.

The garage solution may be the best practicable answer, and the cheapest and most effective by a long long way.
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