- When can a developer drain onto neighbouring land without permission? (Bernel v Canal & River Trust)
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- Case details
Property analysis: This case concerns right of drainage in the context of a development. The claimant asserted the right to drain its development onto the defendant’s neighbouring land, on two alternative bases—by virtue of riparian rights; and by prescription. The judgment analyses what it takes for a watercourse to count as natural, so as to give rise to riparian rights, and also the extent of such rights, if they exist. The prescription claim failed on the facts for want of relevant use, but the judge went on to consider the law relating to the extent of the dominant tenement of prescriptively acquired rights and explained the difference between questions about that extent, and questions about intensification of use. The judge also considered whether the development constituted a radical change in the identity of the dominant tenement and whether there would be a substantial increase in the burden on the servient land. Written by Greville Healey, barrister at Falcon Chambers.
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