Drainage disputes can strain neighbourly relations.

Disagreements can arise between developers, adjacent landowners, and county councils.

Unfortunately, drainage of water is one of the most common areas of dispute between rural neighbours, whether they be farmers or not.

Arguments should be resolved between landowners as amicably as possible. If they cannot be mutually resolved, solutions could be determined through the courts. All landowners are considered equal under law. Only the courts can make the final decision in a dispute.

To obtain a court ruling, a civil action must be initiated by the damaged party.

Even though the Courts have the ultimate decision on a drainage dispute, neighbours should try to reach some common ground, and solve the problem in a neighbourly fashion, without going to court. Court rulings may not make either side happy. They can be expensive, time consuming and unnecessary.

Planning permission is now required for drainage of wetlands, and reclamation of farmland in some instances requires the approval of the Department of Agriculture. Farmers with certain types of wetland will have to seek full planning permission from their County Council for land drainage activities of more than one hectare.

Removal of field boundaries such as hedges, re-contouring of land by using uncultivated land or semi-natural areas for intensive agriculture and drainage and irrigation will all require department clearance, above a given area or threshold.

Landowners are aware of the impact of drainage, and the importance of neighbours working together in successful drainage projects.

However, even with such awareness, disputes sometimes arise between farmers over drainage.

The principle of the law of natural drainage is that landowners must take whatever drainage advantages or inconveniences nature places upon their land.

What these advantages or inconveniences are ultimately depends on the level of one’s property in relation to the land around it.

According to the law of natural drainage, owners of lower ground (known as a servient tenement), are bound to receive surface water that flows naturally onto it from higher ground, known as the dominant tenement.

Therefore, owners of land that is lower than adjoining farms must take the water that flows through natural depressions onto their land.

While the law in relation to natural rights under common law may not apply to your case, it could still be useful to set out the law that applies where water naturally drains from one property to another.

The owner of land bounding a natural river or stream, can protect against flooding on his lands by banking a river. Equally, the owner of lower lands can take action to pin back or stem the flow of water.

If water on the higher land naturally passes onto the lower land, the owner of that lower land does not necessarily have a cause of action against the owner of the higher land in a nuisance or trespass, if the natural flow of water floods his lower lands.

However, one can protect his lands by making a barrier, even though this may cause damage to the higher landowner. However, action to pin back the water must be no more than is reasonably necessary to protect the lower landowner’s own enjoyment, and he must not act for the purpose of injuring the higher landowner.

The lower landowner may however have a remedy in negligence, where the higher landowner fails in his duty of care to do what was reasonable in all the circumstances to prevent a large and dangerous quantity of water on his land causing the lower landowner damage.

It is a question of reasonableness. What may seem reasonable to one landowner may not seem so to another, so despite the presence of the case law, individual court actions may often be necessary to adjudicate disputes.

Since drainage issues between landowners can be very sensitive and can become costly problems to correct, landowners are always encouraged to consult appropriate legal advice on any specific drainage problem.

Farmers, developers, contractors, local officials, and others should seek legal advice before altering any land use pattern that affects drainage. Be sure to review all potential regulations and laws.

There is probably no subject that generates more disputes than surface drainage coming from one landowners’ property to another’s.

Talk it out, and if that does not work, ensure you obtain good legal advice.