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Neighbours And Boundary Trees - Returning Litter To Its Owner

17 January 2011

Jack wrote to me recently about a drainage problem. Water is draining onto Jack’s property from a roadside drain. Jack’s property is level with the road but the drain further up the road from Jack’s property is obstructed by a crossing. This means that when the drain overfills frequently during winter the water drains into Jack’s paddock causing pugging. Jack has contacted the Council and asked it to rectify the problem.

After receiving Jack’s email I reviewed the law relating to water drainage. Judging from the voluminous case law on this matter, it seems that drainage problems are common, that there are numerous common law and statutory principles that are relevant, and the legal answers are not always clear cut.

 

Natural servitude

The first point to note is that lower land is subject to a “natural servitude”. This means that lower land is obliged to receive surface water which falls naturally from higher land. The servitude only applies to water falling from the higher land as a result of “natural use” of the higher land. What amounts to “natural use” of the higher land is a question of fact, to be determined with regard to the surrounding circumstances. Natural use has been held by the courts to include the deep ploughing of agricultural landand the clearing of old drains, but not to include the drainage of a swamp.

As Jack’s land is level with the road, it appears that Jack’s land is not obliged to receive the water from the road drains by reason of natural servitude.

 

Wilful acts and negligence

Jack may be able to claim his losses against anyone who wilfully caused the damage – for example; vandals would be liable to Jack if they had deliberately blocked the roadside drain.

Jack may also be able to claim against the Council if it has been negligent in the design, construction or maintenance of the drains or the road. If anyone else is responsible for the damage to Jack’s paddock (for example, if Jack’s neighbour had obstructed the drain) then that person could also be liable to Jack for the willful or negligent act.

 

Trespass and Nuisance

Jack may also have a legal cause of action against the Council or other responsible person in trespass or nuisance. If the water is being discharged immediately on to Jack’s land, then it could be a trespass, but if the discharge is through another person’s property, then there may be a cause of action in nuisance. Nuisance commonly arises from a series of events or from a continuing process – such as in Jack’s case where the damaged pasture is resulting from intermittent flooding. A person may be liable to another in nuisance even if he or she is not negligent in any way, although the damage must be foreseeable. If the Council or any other person responsible for the water draining onto Jack’s land had committed a trespass or a nuisance, they would be liable to compensate Jack for his damaged paddock and could be ordered by the court to rectify the problem.

 

Statutory authority

If the damage to Jack’s land had been the necessary and inevitable result of the Council doing drainage or roading work authorised by an Act of Parliament (such as the Public Works Act 1981), the Council might be liable to pay Jack compensation as assessed under that Act, rather than damages as assessed under the common law (which would be the case if the Council was liable in negligence, trespass or nuisance). However, if the flooding of Jack’s paddock was not necessarily or inevitably involved in the carrying out of the authorised work, then the Council would still be liable to Jack for damages in trespass or nuisance.

 

Can Jack take the law into his own hands?

If Jack decided to divert the water back on to the road without the Council’s permission, he could be committing an offence under the Local Government Act 1974 and the Government Roading Powers Act 1989. Jack could also be contravening section 14 of the Resource Management Act 1991 which prohibits the diverting or damming of water except as permitted under that Act. Jack could even be committing a negligent or willful act, or a causing trespass or nuisance, for which he could be liable to his neighbour.

The Land Drainage Act 1908 may also afford Jack a remedy. This will be the subject of a future article.

My advice to Jack would be to follow up this problem with the Council. If that doesn’t get a result Jack will need to see his lawyer.

 

Please email me at barbara.mcdermott@nwm.co.nz with your ideas for future articles.  Keep an eye out for next month’s column, where I will discuss another relevant rural legal issue.


 

Barbara McDermott is a partner of Norris Ward McKinnon, specialising in commercial and rural law.  With offices in Hamilton and Huntly, we have friendly, expert legal advisors ready to help you with your business and personal legal matters.   Find out more about us at www.nwm.co.nz