Navigating Torrential Waters: Surface Water Flooding And Drainage In Scotland

• Published date: 04 April 2024
• Subject Matter: Environment, Energy and Natural Resources, Environmental Law, Water
• Law Firm: Shepherd and Wedderburn LLP
• Author: Mr Stephanie Hepburn

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...