Bernel Ltd v Canal and River Trust [2021] EWHC 16 (Ch) (08 January 2021)

Bernel Ltd v Canal and River Trust [2021] EWHC 16 (Ch) (08 January 2021)

The pipe is not a culverted natural watercourse. The evidence, particularly the expert geological and site analysis, shows that the catchment above the site is generally permeable, with surface water percolating rather than forming a regular flow. Any surface flow is only during exceptional heavy rainfall after saturation, insufficient to constitute a watercourse in law. There is no historical or factual basis for riparian rights. No prescriptive right to discharge surface water or treated effluent has been established. The claimant has no entitlement to discharge onto the defendant's land via the pipe, nor to require maintenance of the 12-inch pipe under the Feeder.

Citation
[2021] EWHC 16 (Ch)
Parties
Claimant: Bernel Limited; Defendant: Canal and River Trust
Jurisdiction
England and Wales
Judgment Date
08 January 2021
Procedural Posture
Property, Trusts and Probate Watercourse/riparian Rights Dispute / Trial Judgment
Outcome
Claim dismissed
Legal Topics
Riparian Rights, Watercourses, Prescriptive Easements, Discharge of Surface Water, Planning Permission, Environmental Permitting
Property Law Easements Environmental Law Riparian Rights Watercourses Prescriptive Easements Discharge of Surface Water Planning Permission +1 more

Case Brief

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Parties

Bernel Limited

Claimant

Canal and River Trust

Defendant

Procedural Posture

Property, Trusts and Probate Watercourse/riparian Rights Dispute / Trial Judgment

Legal Issues

  1. 1 Whether the pipe is a culverted natural watercourse conferring riparian rights
  2. 2 Whether the claimant is entitled to discharge surface water and treated sewage effluent into the pipe and onto the defendant's land
  3. 3 Whether any prescriptive right to discharge exists

Ratio Decidendi

The pipe is not a culverted natural watercourse. The evidence, particularly the expert geological and site analysis, shows that the catchment above the site is generally permeable, with surface water percolating rather than forming a regular flow. Any surface flow is only during exceptional heavy rainfall after saturation, insufficient to constitute a watercourse in law. There is no historical or factual basis for riparian rights. No prescriptive right to discharge surface water or treated effluent has been established. The claimant has no entitlement to discharge onto the defendant's land via the pipe, nor to require maintenance of the 12-inch pipe under the Feeder.

Court Disposition

Claim dismissed

Orders

  • Declaration refused: The claimant is not entitled to discharge surface water or treated sewage effluent from the development via the pipe onto the defendant's land or into the Feeder.
  • No prescriptive easement exists in favour of the claimant for such discharge.