Private water supplies can be crucial to those living and working in rural Scotland. Often drawn from springs, boreholes, burns, or lochs, private supplies ensure that residential properties remain habitable, that livestock and crops can be watered, and that land can be irrigated.
As demand increases and weather patterns become more erratic, disputes over water rights and responsibilities are rising. We have seen a marked increase in enquires from owners of private water supplies about these matters in recent times.
Disputes often arise where a private supply serves multiple properties, particularly where informal arrangements have governed its use for many years. Disputes often centre around issues of usage, maintenance, and replacement of supplies. Challenges may be exacerbated by unclear titles, old deeds, a lack of any plans (or the absence of a coloured plan), or the lack of any formal agreement.
Such disputes can quickly cause the landowner to suffer losses, both directly (e.g. the cost of remedial works to the supply infrastructure) and indirectly (e.g. business interruption claims by users due to a lack of supply). There are however certain steps that landowners can take to mitigate the risk of a dispute arising.
Understand your legal rights and responsibilities
Landowners should seek advice about the legal status of any private water supplies located on their land. They may discover that other proprietors have a servitude right to use that supply. That right may have been provided subject to express conditions governing its use and setting out who is liable should any issues arise. Those rights and conditions may be set out in writing and immediately discernible from a title review, but equally they may not. The law allows for servitude rights to be established other than by express written grant and imposes certain servitude conditions by way of implication.
Even if the rights and conditions are set out in writing, they may still be subject to competing interpretations. Events on the ground since the grant might affect the enforceability of those rights and conditions.
Landowners often only discover the full extent of their rights and responsibilities after a dispute has already arisen and parties' positions have become entrenched. Taking legal advice on any rights and responsibilities before a dispute has arisen can allow landowners to avoid inadvertently attracting liability, and give them an opportunity to seek to adjust their rights and responsibilities as necessary.
Understand the infrastructure
Similarly, because private water supplies are often subterranean, landowners might not be aware of the true extent and condition of the supply on their land until after issues arise.
It is prudent for landowners to ensure that they understand the extent of any water supply infrastructure on their land. Surveys can be instructed and maps drawn up.
It is also good land management practice to ensure that regular inspections are carried out to ensure that the supply remains in good working order. If issues with the supply are caught early then they are often less expensive to fix. This can have a knock-on effect in that, if disputes around responsibility for inspections and liability for repairs do arise, the sums at stake may be lower.
Formalise any arrangements in place
Where multiple parties share a single source, formalising any agreements around access, usage limits (if appropriate), cost-sharing, and maintenance is crucial.
It is not uncommon for verbal agreements between neighbours to govern the use of private water supplies. Difficulties can however arise as time passes and memories fade, and parties start to question exactly what was agreed. Difficulties can also arise where new owners who were not privy to the original discussions move in and seek to exercise the rights of their predecessors.
It is sensible, wherever possible, to ensure that any arrangements concerning private water supplies are set out in formal written agreements. Professional drafting can ensure clarity as to the scope of each party's rights and responsibilities and prevent disputes from arising further down the line.
Legislative and Regulatory Requirements
Certain legislative and regulatory requirements apply to owners of private water supplies.
Some of those requirements are set out in the Water Intended for Human Consumption (Private Supplies) (Scotland) Regulations 2017/282. Under these Regulations, an owner may be required to register the supply with their local authority. The local authority may be required to test and risk assess that water supply. These Regulations apply to private water supplies which meet the conditions more fully set out in those Regulations.
Landowners should ensure that they are fully appraised of the legislative and regulatory requirements applying to any water supplies which they own, to avoid the risk of enforcement action being taken against them. If a landowner is in doubt as to whether these Regulations apply to them, they should seek legal advice or contact their local authority.
Proactively managing private supplies can help reduce legal risk. Early engagement with neighbours, managing private supplies openly and transparently, and seeking professional advice may help avoid disputes arising, and avoid unnecessary harm to relationships.
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.
