Scottish Ministers held liable for flooding on private land caused by M74
A landowner who raised a legal action against the Scottish Ministers over what he claimed was a “natural right of drainage” has been granted declaratory that the M74 motorway interferes with that right.
A judge in the Court of Session ruled that the defenders were interfering with the pursuer’s natural right of drainage and that M74 was preventing water passing to its natural drainage outfall, which caused flooding to the pursuer’s land.
Lord Mulholland heard that the pursuer Gavin Hamilton, the heritable proprietor of Lairs Farm to the south west of the village of Blackwood in South Lanarkshire, first noticed a problem with the drainage in 2009.
The court was told that at the north east part of the farm is a field (field one), which is bounded by the B7078 Carlisle road which crosses it from north to south, and is currently subject to flooding, also known as “ponding”.
To the east of the field is a strip of land, which is bounded to the east by the M74 Glasgow/Carlisle road and also currently subject to flooding.
Prior to the construction of the B7078 the strip formed part of the field, which is bounded to the north by a disused railway line, agricultural fields to the west and Lairs Farm to the south.
Fields two and three of Lairs Farm are situated south of field one and are bounded to the east by the M74 Glasgow/Carlisle road.
Natural right of drainage
The pursuer’s case was that he had a natural right of drainage over the defenders’ heritage, namely the section of the M74 to the east of the pursuer’s land.
The natural right of drainage existed as a result of the pursuer’s land being higher than the defenders’ land and as a result the inferior tenement (the defenders’ heritage) was obliged to receive the water falling from the superior tenement land (the pursuer’s heritage).
As a result of problems with the drainage to the north east of the pursuer’s field, the pursuer’s drainage system was reconnected to the old drainage system to the west and east of the B7078.
As a result, water was making its way to the verge of the M74 land where it was being prevented, as a result of damage to the old drainage system, from passing to its natural drainage outfall (beneath a footbridge on the east side of the M74).
This caused the water to fail to drain and back up, flooding the north-east corner of the pursuer’s field and strip.
The court heard evidence that in April 2012 a site inspection and excavation by confirmed that there was a “void” in the drainage system on M74 land.
The pursuer’s case was that the old drainage system on the defenders’ land was acting as a barrier to the pursuer’s natural right of drainage and the defenders were accordingly liable to restore the old drainage system on their land to full working capacity.
Lack of maintenance
However, the Scottish Ministers argued that any failure of the drainage system for the pursuer’s field was caused by one or more other factors, such as lack of maintenance by the pursuer of his own private field drainage system, or lack of maintenance by the council of the adopted road drainage for the relevant section of the B7078.
The defenders also said the failure could have been the result of impact damage to a discharge pipe of the B7078 drainage system caused by utility works, or impact to a discharge pipe caused by a new development, and/or road widening works and formation of new footways on the B7078 carried out by or behalf of the council.
Following a proof before answer on the issue of liability, during which expert evidence was led, the judge ruled that the pursuer had proved his case on the balance of probabilities.
In a written opinion, Lord Mulholland said: “On the evidence presented to me, I am satisfied that the pursuer has proved that he has a natural right of drainage. I have reached this decision for the following reasons. Firstly, alternative causes for the flooding (ponding) have been excluded… Secondly, the topography of the ground is consistent with the natural right of drainage. The land drains under gravity towards the north east corner of the field and the strip.
The judge also noted that the dimensions and material of the field drain on the motorway verge, which was subject to the CCTV survey, was consistent with the dimensions and material of the pipe (fired clay) at the outfall flowing into the burn.
Further, the pursuer and a witness both spoke in evidence to water travelling from the manhole, installed by the council in 2009, in an easterly direction to the broken pipe, subject to the CCTV survey, which indicated that water from the field drainage system travelled by means of gravity to the field drain on the motorway verge.
“It could, of course, only reach the broken pipe by means of gravity if the pursuer’s field was higher than the M74 verge at the point of the void in the pipe,” Lord Mulholland added.
He continued: “The evidence and rationale supporting a natural right of drainage as contended for by the pursuer, as detailed above, was powerful, multi sourced, supported by the majority of expert and factual witnesses and the drainage system pertaining to the area.”
While the pursuer had suffered from flooding since 2009, no witness was able to identify the cause, but the judge nevertheless concluded that that pursuer’s right of servitude had been interfered with.
Lord Mulholland said: “The fact that the problem first manifested itself in 2009 does not mean that this was when the pipe was damaged creating the void. It is perfectly possible that the damage could have been occasioned earlier causing a gradual build-up of silt and debris which reached a point where flooding was caused in 2009. There was no evidence of an event in 2009 which could explain the flooding from that date and I therefore have nothing which could support a date for the damage.
“What can be taken from the evidence, however, is that the field drainage, including the section on the M74 verge, must have been in operation at the time of the widening of the A74 and the creation of the section of the B7078 running through the pursuer’s land. It had been used to drain the field in the past and the restitution of this drainage system for the lower field drain is res merae facultatis. As the void which prevents this drainage system from operating effectively is located on the verge of the M74, the defenders are interfering with the pursuer’s natural right of drainage. This is an inevitable finding from the location of the void.”