Right to Drainage – Developers Beware

United KingdomScotland
31/10/2017
Download PDF

In the case of Gavin Hamilton v The Scottish Ministers, the owner of a field raised an action against the Scottish Ministers as proprietors and developers of the M74 when the field suffered from flooding following the construction of the motorway. Prior to construction of the motorway, surface water from the field drained into neighbouring land which was on a lower incline but once the motorway was constructed (partly on that adjoining land) and drainage pipes re-routed as part of that, the course of the drainage was interrupted. The court was asked to determine whether (1) Mr Hamilton’s field benefitted from a right of drainage over the lower lying neighbouring land and (2) whether that right was imprescriptible, i.e. not capable of being extinguished/ lost by the passage of time. The court held that (1) water held outside a definite channel is permitted to drain with the natural inclinations of the land without the owner of the burdened land (i.e. the lower land which the water drained onto or through) causing it to back up onto the benefitted land, and (2) that the right is imprescriptible. In the particular circumstances of this case, it was held that the Scottish Ministers were in breach of this right as the relocation of the underground drainage pipes serving Mr Hamilton’s field had resulted in the surface water not being able to drain sufficiently. The Court were not asked to decide on the level of damages payable – it being agreed that if the Scottish Ministers were held to be liable, they would then enter into negotiations with Mr Hamilton on the sums payable.

Developers – both public and private – need to be mindful of the implications infrastructure works will have on adjoining landowners and ensure that any modifications to existing systems do not prejudice adjoining properties. In particular, where water from higher lying ground passes through or under the land being developed, the developer will need to ensure that flow is not obstructed even where there is no formal servitude in the title deeds.

Search Filters

Advanced Search

Key contacts

Related content