Small claims - riparian rights

HaydenB

My wife and I bought our house in 2015 from my parents who had lived at the property since 1978. At the time of our purchase, Mr A resided at an adjacent property but now rents it out and lives elsewhere.
To the rear of both properties are gardens which are separated by hedging. There is a small stream which runs down the valley, enters Mr A garden and runs into a pond. There is an overflow from this pond which diverts the water underground and away from the properties.

This overflow is no longer visible nor work effectively during periods of sustained rain which on numerous occasions over the last few years has led to flooding on our land, including our garage, causing costly and unrepairable damage.

We believe that this is due to a lack of maintenance over a long period of time – either from Mr A or his tenants. The bottom of the garden, where the pond is, has not received anything in the way of garden maintenance since we bought the property nor for a considerable amount of time prior to my parents selling the house.

Our biggest cause of concern is the damage to belongings stored in the garage.

We converted our lower ground floor of the property into a 2 bedroom apartments for my mother & father-in-law. My father-in-law was diagnosed with Motor Neurone Disease around 8 years ago, so it made sense to bring them into our home whilst offering them their own privacy. Swapping a two storey house for a one floor apartment meant they had to store quite a lot of their possessions in the garage. There has also been other equipment stored in there – some relating to my father-in-laws condition – which unfortunately has been damaged beyond repair.

Furthermore, we also store our own belongings in the garage, as you would expect. Power tools, hand tools, garden tools, camping equipment, electrical equipment, etc. Again, flooding water has caused unrepairable damage.

I first contacted Mr A on 17th March 2019 to bring to his attention the problem we were experiencing for the first time. I have contacted him on further occasions but unfortunately don’t feel that he has ever taken the matter seriously or fully appreciated his responsibilities in this regard. 

Videos have also been sent to Mr A showing both the flow of water entering our land from his property and damage caused to belongings internally to the garage.

My last contact with Mr A was 30th January 2021 when I wrote to him proposing mediation with someone independent to try and reach an agreement without the need of court action. Unfortunately I haven’t had any response back and feel I have exhausted all options in resolving amicably.

Our claim is partly based on Mr A responsibilities with regards Riparian Rights which are those that a landowner has if their land adjoins a watercourse or has a watercourse flowing through or within it.

Mr A has failed in his responsibilities specifically on the following:

a) To not cause or permit any obstruction or disruption of the water flow.

b) To remove any obstruction caused within the boundaries of their land.

c) To manage the risk of flooding of adjacent properties.

The poor maintenance has led to the disruption of the water flow and any obstructions (to the overflow) have not been attended to which has led to the flooding of our land and property.

I am looking at submitting a small claims court application but would appreciate some guidance on the value of claim. I believe we have damaged belongings of circa £3k but also want to claim for the costs of doing some work to prevent any future flooding given its obvious Mr A isnt going to resolve. I have previously had a cost of £3k for building a retaining wall which will prevent water entering our property. But I am unsure on how I should word this on our claim.
Any help would be appreciated.

lincroft1710

Can I just check the following?

1. the stream does not enter your land.

2. the pond is on Mr A's land

3. the garage is at a lower level than both the stream and pond

HaydenB

1. Correct
2. Correct
3. Correct. The pond is about 3 meters from the boundary (5 from the garage) and I would estimate about 1mt higher. To add a bit more background, before all the houses were built, there was a water mill in what is now our back garden and the stream (I assume) used to turn the wheel. When the houses were built and the mill put out of use, the overflow was put in to divert the water away from the properties.

pinkshoes

HaydenB said:

1. Correct
2. Correct
3. Correct. The pond is about 3 meters from the boundary (5 from the garage) and I would estimate about 1mt higher. To add a bit more background, before all the houses were built, there was a water mill in what is now our back garden and the stream (I assume) used to turn the wheel. When the houses were built and the mill put out of use, the overflow was put in to divert the water away from the properties.

Riparian rights are normally about not obstructing the water flow to others e.g. if it naturally flowed onto your land, via his land, then he would not be permitted to divert or block the flow to you.

I would be looking into the overflow, when it was put in, and whether there is any mention of it on the deeds of Mr A.

If the water mill was originally in your back garden, then you would need to prove that the flooding was caused only by not maintaining the overflow, rather than the overflow being insufficient for the huge levels of rain in recent years, and thus allowing the water to flow back along its original course into your garden.

HaydenB

How would you prove that the overflow was insufficient though? Having been associated with the property since I was born (1978), I know the flood issue is only a recent problem as I say, from poor maintenance. The overflow cant even be located now - we have even had the council involved but they ran out of patience due to the attitude of Mr A.

Manxman_in_exile

You need paid for specialist legal advice rather than asking on here - I suspect you have a rather complicated legal problem that could become quite expensive...

(Funnily enough, when I was a law student I did my dissertation on how the courts had subsequently developed the law as declared in Rylands -v- Fletcher, which happens to be a bit like your case - a bit, not identical.  Unfortunately that was over 40 years ago and I've since forgotten the conclusion I reached)

https://en.wikipedia.org/wiki/Rylands_v_Fletcher

Seriously - pay a solicitor...

lincroft1710

The previous watermill and the possibility of the stream flowing up to it and subsequent events may well complicate matters. Agree with others, you need expert advice.

HaydenB

I've just checked my deeds and it shows the pond on the labour's land and says 'pond sinks'. I've read up on the ordnance survey site which states this indicates water is diverted underground. Not sure if this helps?

Manxman_in_exile

You need to speak to a solicitor and get paid for advice - that you can sue for if it's wrong.

Posters here will do their best to help you, but I think you've may have a pretty serious legal problem here regarding liability for property damage that has already occurred and potential damage that may occur in the future.  It may have costly implications for you in respect of purchasing insurance in future and the future saleability of your property.

The solicitor who originally conveyed the property for you may be a good starting point, but you probably need someone with specialist expertise in property disputes - or even negligence.

You may be able to get a "no win no fee" firm, but this will probably not be sufficiently clear-cut (or indeed profitable) for them to take on, and you will really need someone who you engage on a fee basis.

I don't think anyone here can advise you on any claim you may have, but they might be able to advise what sort of legal advice you need

HaydenB

Appreciate all the comments and do agree that I need professional legal help but I am just not in a position at the moment be able to afford the associated costs.
If I were to proceed through the small claims court, as a starting point, what would be my biggest risk?

Aylesbury_Duck

The court fee, your time and possibly alerting Mr A to the seriousness of your intentions, leading him to engage his own legal help to rebuff any future proper legal action you might wish to take.