Bernel Ltd v Canal and River Trust

A natural watercourse requires a regular channel in which water flows, although it may be temporarily dry. A channel filled only during temporary flooding does not create riparian rights. Whether a watercourse exists is a question of fact, assisted by relevant expert evidence. An environmental permit determining the regulatory discharge point does not determine private-law rights or prevent the court reaching its own conclusion.

A prescriptive drainage easement requires proof of at least 20 years’ qualifying user. The dominant tenement is confined to land actually accommodated by that user. Development may also be excessive where it radically changes the character or identity of the dominant land, or substantially increases or alters the burden on the servient land.

The claimant owned land being developed for the refurbishment of an existing house and construction of nine dwellings. A pipe crossed the land and discharged into land owned by the defendant beside the River Dane Feeder Canal.

The claimant contended that the pipe was a culverted natural watercourse, giving it riparian rights to discharge surface water and treated sewage effluent. Alternatively, it claimed an easement acquired by prescription under the doctrine of lost modern grant. The defendant maintained that the pipe was a sewer or drain and disputed the alleged prescriptive rights.

The Environment Agency had granted a permit and the planning authority had approved the drainage scheme. The central issues were whether those matters affected the court’s determination of the pipe’s status, whether riparian rights existed, and whether the claimant had established an easement permitting the proposed discharge.

1. Natural watercourse. The court adopted the distinction between a watercourse that may periodically cease to flow and a dry channel filled only during temporary flooding. The existence of a watercourse was a question of fact. Expert evidence was admissible and highly relevant to identifying the underlying physical facts.
2. The more persuasive evidence showed that the pipe was a drain or sewer carrying field drainage and waste from properties further up Sugar Street. The absence of historical mapping or survey references, the lack of significant surface run-off from the catchment, and the evidence concerning the Jasmine Manhole and flow through the pipe outweighed the evidence supplied by the 12-inch pipe beneath the Feeder. The claimant therefore failed to establish a natural watercourse or riparian ownership.
3. The Environment Agency’s conclusion that the culvert formed part of the inland freshwaters network was relevant but not determinative. The permit addressed environmental regulation and the location of the permitted discharge. It did not decide private rights, and the court was required to reach its own independent conclusion on the evidence.
4. Had riparian ownership been established, the proposed discharge would have been permissible on the evidence, provided it remained within the flow and quality parameters of the approved scheme and permit. The relevant inquiry would focus on whether the discharge materially diminished or increased the natural flow, or altered its character or quality. This conclusion was academic.
5. The prescriptive claim failed because there was no evidence of at least 20 years’ significant artificial discharge of surface water or effluent from the Site through the pipe to Point A. Any easement established on the claimant’s highest case would have accommodated, at most, the immediate curtilage of Ivy House and nearby land, not the whole Site.
6. Further, the proposed development would have been a radical change in the character and identity of the whole Site. Although the proposed flow and treated effluent would not otherwise have constituted an excessive burden on the servient land, that conclusion was also academic. The late argument concerning repair of the 12-inch pipe was not determined.
7. The claim for declaratory relief was dismissed.