Q&As

We act in the purchase of a development site. An easement will be entered into for surface water drainage to be laid across an adjoining site which directly abuts a watercourse into which the surface water will drain (and it is presumed that the owner of that site has the benefit of riparian rights). Can the owner effectively grant an easement to discharge water into the watercourse on the basis of their riparian rights? Would the owner of the riparian rights in the adjoining half of the watercourse also need to consent? Would this easement be legally binding and free from challenge? Are there any other steps which should be taken to ensure that the grantee's position is secured?

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Published on LexisPSL on 05/12/2019

The following Environment Q&A provides comprehensive and up to date legal information covering:

  • We act in the purchase of a development site. An easement will be entered into for surface water drainage to be laid across an adjoining site which directly abuts a watercourse into which the surface water will drain (and it is presumed that the owner of that site has the benefit of riparian rights). Can the owner effectively grant an easement to discharge water into the watercourse on the basis of their riparian rights? Would the owner of the riparian rights in the adjoining half of the watercourse also need to consent? Would this easement be legally binding and free from challenge? Are there any other steps which should be taken to ensure that the grantee's position is secured?

We act in the purchase of a development site. An easement will be entered into for surface water drainage to be laid across an adjoining site which directly abuts a watercourse into which the surface water will drain (and it is presumed that the owner of that site has the benefit of riparian rights). Can the owner effectively grant an easement to discharge water into the watercourse on the basis of their riparian rights? Would the owner of the riparian rights in the adjoining half of the watercourse also need to consent? Would this easement be legally binding and free from challenge? Are there any other steps which should be taken to ensure that the grantee's position is secured?

An easement has four essential characteristics:

  1. there must be a dominant and a servient tenement

  2. the easement must accommodate the dominant tenement

  3. the dominant and servient owners must be different persons, and

  4. the easement must be capable of forming the subject matter of a grant

It appears likely that an easement for surface water drainage laid across the adjoining site will meet the requirements for a valid easement in this scenario.

In terms of riparian rights, if an ‘ordinary

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