Navigating Torrential Waters: Surface Water Flooding And Drainage In Scotland

Shepherd and Wedderburn LLP


Shepherd and Wedderburn is a leading, independent Scottish-headquartered UK law firm, with offices in Edinburgh, Glasgow, Aberdeen, London and Dublin. With a history stretching back to 1768, establishing long-standing relationships of trust, rooted in legal advice and client service of the highest quality, is our hallmark.
The rise in instances of flooding as a result of natural events, such as rain and storms, has led to a greater number of queries to us recently about drainage and what rights and obligations landowners have in this regard.
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The rise in instances of flooding as a result of natural events, such as rain and storms, has led to a greater number of queries to us recently about drainage and what rights and obligations landowners have in this regard.

Of course, certain provisions relating to surface water drainage may be agreed between neighbouring landowners privately, such as by way of a servitude, but what if no formal agreement is in place?

In short, the rights of the parties are determined by the natural situation on the ground. The position of common law is therefore that a landowner has a right to have surface water (which includes rainfall), that's not in a defined channel, drain onto lower ground owned by another party. The water is permitted to drain with the natural slope of the land. This is a natural right of property and is distinct from the law of servitudes. The principle is the same whether the water remains as surface water, or feeds into a stream or pool on the lower ground.

The lower landowner is obliged to accept the water that falls from above, even if it causes damage to their land as a result. However, the lower landowner is not obliged to accept a greater quantity of water than arises in the course of nature. If the lower landowner does not accept the water, they may be at risk of an action in damages by the higher landowner if flooding or damage occurs to the higher ground.

Are there any options open to the landowner to deal with this influx of water?

Options open to the lower landowner

The lower landowner can protect their land and put in drainage systems to deal with the water and should also ensure that the higher landowner complies with their obligations, which include not "overstretching" the right to drain water from the higher property.

If the right is overstretched, thus increasing the water burden on the lower property, this may be an actionable wrong. Overstretching will not occur unless it can be shown that:

  • (a) the lower land has been damaged as a result of the exercise of the right to drain water; and
  • (b) the actions of the higher landowner amount to an "undue pressing of their rights".

Every case will turn on its own facts and circumstances, but it must be arguable that an overstretching of the right has not taken place simply as a result of an extreme nature event, such as a flood or severe storm – a court may well find this is an "Act of God" that is therefore inactionable.

Artificial drainage works

The higher landowner may alter the drainage provided by nature by putting in some form of artificial drainage works. The lower landowner must accept the water even if it is drained by artificial works, but the right to drain water from the higher property still must not be overstretched – excessive or unreasonable exercise of the right may be challengeable.

Further, the drainage works must be fully within the higher landowner's title, they must not be contrary to any existing servitudes, and the works must be in the course of the "natural use of [the higher landowner's] property". Any works must not change the direction of the flow of the water, or send down water which would not naturally filter down. If the drainage works go beyond these obligations, the lower landowner may have a remedy against the higher landowner.

As well as overstretching the right, or breaching the obligations set out above, any artificial drainage works implemented by the higher landowner must be adequately maintained – if not, and the lower landowner suffers material damage as a result, there may be a claim against the higher landowner.

How can we help?

Drainage rights under the common law is a very complicated area and the remedies available to the lower landowner is a particularly vexed issue. The interplay with private law (including servitudes) and the title deeds must also be considered.

Complications can arise when the lower land is occupied by a tenant. Every case will differ based on their individual facts and circumstances and we recommend legal advice is sought at the earliest opportunity.

Our rural disputes team is part of Shepherd and Wedderburn's wider rural property and business practice, and our specialists work together on all potentially contentious matters affecting clients living, working, and operating in the rural sector. We aim to resolve disputes with the minimum fuss, without involving the court, and we are experienced in all methods of alternative dispute resolution.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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