Watercourse – Riparian rights – Prescription – Claimant claiming entitlement to discharge surface water and treated sewage effluent through pipe onto defendant’s feeder land – Claimant seeking declaratory relief by reference to what permitted by Environment Agency permit – Whether pipe was culverted natural stream or watercourse – Whether claimant acquiring rights by prescription under doctrine of lost modern grant – Claim dismissed
The claimant company was the registered proprietor of land off Sugar Street, Rushton Spencer, Macclesfield. It was in the course of developing the site by the construction of residential accommodation. The defendant was a charity registered for purposes including preserving, protecting, operating and managing inland waterways in England & Wales for public benefit. It was the freehold owner of land immediately to the south west of the site (the feeder land), which formed part of the banks and course of the River Dane Feeder Canal (the feeder).
A dispute arose concerning the status of a pipe that ran through the site to a point where it discharged onto the feeder land and into the feeder. The claimant contended that the pipe was a culverted natural stream or watercourse into which it, as riparian owner, was entitled to discharge surface water and treated sewage effluent from the properties in the course of being developed upon the site, through the pipe and onto the feeder land, so as to discharge into the feeder; alternatively, it had acquired rights by prescription under the doctrine of lost modern grant to discharge surface water and treated sewage effluent in that way. The claimant sought declaratory relief by reference to what was permitted by a permit granted by the Environment Agency in 2017 and planning approval for the scheme granted in 2018.
The defendant argued that the pipe was merely a sewer or drain bringing effluent from septic tanks and water from field drains, rather than naturally flowing surface water. Thus, the claimant had no rights as riparian owner, and had not acquired any rights to discharge surface water or treated sewage effluent by prescription.
Held: The claim was dismissed.
(1) On any view, the approved scheme involved the artificial accumulation of surface runoff and treated effluent on the site and the discharge of the same onto the defendant’s land; absent some specific right to discharge into the feeder, the claimant had no entitlement to do so: Home Brewery Co Ltd v William Davis & Co (Leicester) Ltd [1987] QB 339 and Vauxhall Motors Ltd (formerly General Motors UK Ltd) v Manchester Ship Canal Co Ltd [2019] EGLR 51 considered.
The fact that there might be some periods of non-flow was not incompatible with there being a natural watercourse. On the other hand, a dry channel which was only filled during temporary flooding was not a watercourse giving rise to riparian rights. The ultimate question, whether any temporary flow as might have occurred along a particular course was a watercourse, was one of fact for the judge to decide but the expert evidence adduced was highly relevant, and admissible, for the purposes of identifying and explaining the facts that went to that ultimate issue: Broadbent v Ramsbottom (1856) 11 Exch 602, Pearce v Croydon Rural District Council [1910] AC 909 and Stollmeyer v Trinidad Lake Petroleum Co Ltd [1918] AC 485 followed.
On the evidence before the court, it was more likely that there was, historically, no natural watercourse following the course of the pipe, and that rather than being a culverted watercourse, the pipe was originally laid to take soil waste from houses and/or field drainage. It was incumbent upon the court to reach its own independent judgment on the matter based on the evidence adduced before it taken as a whole.
There was insufficient evidence of a flow of water along the course of the pipe to lead to the conclusion that there was a natural watercourse that had been culverted. It was more likely that the pipe represented a drain and/or sewer. On that basis, the claimant had failed to establish the natural watercourse that it contended for, or that it was entitled to enjoy the rights of a riparian owner.
(2) The claimant claimed a right by prescription based on in excess of 20 years user under the doctrine of lost modern grant. In order to succeed, the claimant needed to prove upwards of 20 years user in accordance with the rights that it now claimed. If an easement was established on that basis, then it was necessary for the claimant to show that the easement so established accommodated the whole of the site so as to constitute the whole of the site as the dominant tenement. The claimant would then need to show that the user as proposed pursuant to the approved scheme, in accordance with the Environment Agency permit, was not, when compared with any easement acquired by prescription, excessive: McAdams Homes Ltd v Robinson [2004] 3 EGLR 93 and Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2019] EGLR 1 followed.
One could only prescribe for a right that was not permitted in any event. There was a distinction between natural percolation, for which no right was required, and the channelling or diversion of water onto the land of another, for which a right was required. Consequently, it was necessary to distinguish between the natural percolation which had occurred from the site onto the feeder land, and artificial discharge through the pipe, for which a right would have had to have been acquired by prescription. The user required to be shown in order to establish any right acquired by prescription based on upwards of 20 years user had to be user involving the discharge of surface water and/or effluent onto the feeder land through the pipe. There was no evidence of any such user. On the basis of the lack of evidence as to user, the court was unable to find that the claimant had, based on upwards of 20 years user, acquired any prescriptive right to drain surface water, or effluent of any kind collected on the site, through the pipe, so as to be discharged onto the defendant’s land.
(3) As the court had found that the claimant was neither a riparian owner with the benefit of riparian rights, nor entitled to an easement acquired by prescription, it was not entitled to the declaratory relief sought.
Christopher Jacobs (instructed by Burnetts Solicitors, of Carlisle) appeared for the claimant; Greville Healey (instructed by Ward Hadaway Solicitors, of Manchester) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Bernel Ltd v Canal and River Trust
