The issue I have as is as follows: A drain, which collects large quantities of storm water on a public main road, owned and maintained by my local council, runs off from the public road onto a private road, on which I am a resident, along with many other private property owners (all of whom are part of a private Residents Association which is a private company and the residents are its shareholders). The same drain which runs through from the public road onto the private road where I live then collects more water from the private road and my neighbours' properties before discharging at a gulley directly outside my house, before running downhill under my property, discharging further away into the natural water system. What I am keen to understand is who is responsible for the upkeep of the drain, and most particularly the pipe which runs underneath my property (in effect this is the key part of the drain as it is the low part of all the connecting drains and therefore discharges the vast majority of the water collected on both the public and private road). I have had significant issues with the drain in the past such as flooding to my property due to the volume of water that the drain collects, both on the public road and on the private road. I would be very grateful for your assistance and clarity as to who should be held responsible, and why. This issue has implications not only for my wellbeing and my enjoyment of my property, but has serious implications when I come to sell it. Susan [email protected]
Can you tell me how long you will take to answer my question
Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
From what you say above this drain appears to be a highway drain for the purpose of draining water away from the highway. Alternatively it could be a surface water sewer but this does not appear to be the case from what you say.
The position is different depending upon whether the drain is a surface water sewer or a highway drain. If it is surface water sewer - i.e. to drain away water from a highway then on the basis it serves more than one property by virtue of The Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011 responsibility for maintenance transferred to the local water undertaker in 2011 if not before - Southern Water from what you say - who are responsible for maintaining it.
However the The Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011) do not apply to highway drains which the drain in question appears to be. Highway drains are the responsibility of the local highways authority which will be in most case the local council (save for major routes which are the responsibility of the Highways Agency but unless this is a major motorway or similar it will be the local council.
s100 Highways Act 1980 provides that a highways authority may constuct drains in order to drain the highway as it considers necessary but shall pay compensation to any occupier of land over or under which they do so that suffers damage as a result.
Accordingly if this is a highway drain as opposed to a surface water drain as I suspect, responsibility shall lie with the local authority as the highway authority by virtue of s100 Highways Act 1980.
FYI I will not be available for most of today and tomorrow but if you have any follow up questions I will be pleased to assist so far as I am able but this may be tomorrow evening before I can reply.
I hope the above is of assistance.
This is extremely kind and helpful of you. Is it possible to speak to you as there are various
Thank you very much for your help. Is it possible to speak to you? You are very helpful when you way 'shall pay compensation to any occupier ofland over or under which they do so that suffers damage as a result.
I am so sorry, I am not able to work your site. Is it possible to send me an ordinary email with your feedback? Is it possible to speak to you as I have various queries Ed31ward
Trying again. It is difficult to read your feedback as I can't get it 'all on one page'
The trouble is the water runs OFF from the main highway, through leased land, owned by the highway through our private road and then down through a drain that runs underneath my property.
The water is coming not just from the highway, but also our private road, into which drains from individual houses drain. All the water then drains through a pipe that runs under my property.
Who is responsible for this pipe and all its water that runs underneath my property
Please can you let me know who is responsible for their pipe running under my property? Sue XXXXXX
Thank you for your feedback. I am now able to get the 'boxes' on the site to work and can see your feedback.
I am not at all clear from what you say, who is responsible for the pipe that runs underneath my property carrying the surface water from the main trunk road A264, together with the water from my private road which serves various residents.
Am I able to speak to you about this
My apologies for the delay in reverting to you. I have been away over the weekend.
Based on what you say this this appears to be a Highway drain as opposed to a surface water drain and if so, the pipe would fall to the responsibility of the local highways authority under the provisions of the highways act
Unfortunately this site is limited to online interaction at present though there are plans to launch a new telephone service in the future I believe.
Dear XXXXX this is very helpful. Thank you. Could you point me to the highways act that states that my pipe would fall to the responsibility of the local highways authority under the provisions of the highways act?
Yes of course. Just bear with me for a moment if you would..
You can access the Highwas Act here:http://www.legislation.gov.uk/ukpga/1980/66
If you refer to s100 of the Act you will note the relevant provisions
Is there anything else I can help you with?
Brilliant. Where do I get hold of s100 of the Act? And also does this also mean that my/our the drains in our private road are the responsibility of the Highways. They keep telling us 'emphatically not'
I have posted the link to the Act above. Are you able to see it?
As regards XXXXX XXXXX private road this is interesting. This is not going to be a highway if it is not subject to a private right of way and therefore the Highways authority is not responsible for drainage from the private road. However in so far as a pipe sed for draining the public highway passes under or through private land including the private road, the local highways authority would be liable for compensation under section 100 highways act if the land suffers any damage as a consequence of that pipe leaking and so on. See s100(3) Highways Act.
Yes thank you. I cannot find s100(3). could you point me to it It is seems that everything is numbered under numbers, and do not go up to 100.
How odd. With your permission I will post the relevant extract below:
100 Drainage of highways.(1)The highway authority for a highway may, for the purpose of draining it or of otherwise preventing surface water from flowing on to it, do all or any of the following:—(a)construct or lay, in the highway or in land adjoining or lying near to the highway, such drains as they consider necessary;(b)erect barriers in the highway or in such land as aforesaid to divert surface water into or through any existing drain;(c)scour, cleanse and keep open all drains situated in the highway or in such land as aforesaid.(2)Where under subsection (1) above a drain is constructed or laid, or barriers are erected, for the purpose of draining surface water from a highway or, as the case may be, diverting it into an existing drain, the water may be discharged into or through that drain and into any inland waters, whether natural or artificial, or any tidal waters.(3)A highway authority shall pay compensation to the owner or occupier of any land who suffers damage by reason of the exercise by the authority of any power under subsection (1) or (2) above.
I have highlighted sub para 3 for your reference.
Does the above answer all your questions or is there anything I can clarify or help you with any further?
So does 'by reason of the exercise by the authority of any power under subsection (1) or (2) mean they take responsibility for the drain. It surely can't be ALL their responsibility as our road uses the drain where it is in our private road.
I know that every year the Highways clean the part of the drain that runs under the leasehold land. Does 'scour, cleanse and keep open all drains situated in the highway or in such land as aforesaid' mean that the HIghways need to clean ALL the run of the whole drain so that it is clear all the way to its destination which is a large pond in the woods below?
What about our private road. Does that have no responsibility for its own drainage of its water?
they have no responsibility for draining your private road and if your private road is also using the drain, the highways authority could potentially take steps to prevent this all require a contribution towards upkeep. They have powers to clean the drain and have a responsibility to keep it clean enough so as to effectively drain the public highway
Are you happy with the information I have provided to you above or is there anything above I can clarify for you any further?
Oh dear. I wish I could speak to you!! It seems that on the one hand they will take responsibility for their water, and then 'they have no responsibility for draining your private road and if your private road is also using the drain
It seems that these two statements are contradicting one another. Both the highways and our private road are using the same drain.
I do not consider that they are contradictory. The private road should not be using the Highways drain to drain without the Highways authoity's permission. The highways authority has no responsibility to drain private roads as one would expect. if the highways authority has laid a pipe under private land including land on which there is a private reconstructed, the highways authority is liable to landowners who own the land in respect of any damage caused by the pipe. However, if the highways authority can demonstrate that the damage caused has in part or wholly been caused by drainage from the private road or connections for drainage for the private road, they may reduce or avoid their liability. there may have been an agreement put in place between the highways authority and the owners of the private road when connections were made though equally there may have been no such agreement.
I would agree with everything you are saying, that basically the whole drainage system should be the responsibility of the Highways and the private road.
My problem is that my property is in the direct line of fire of being flooded by this drain, which i has been
if you are suffering damage to your land as a result of the pipe, initially your point of contact would be the highways authority pointing them to section 100 highways act which makes the highways authority liable for damage caused to your land. if the highways authority wishes to argue that the damage has been caused principally or in part by drainage from the private road, then there may be a question of some joint responsibility from the private road landowner. if you cannot reach agreement with the local authority, you could ultimately consider issuing proceedings in the County court and if the I was authority considered that the owners of the private road should also share liability, then the local I was authority could join in the private road owner(s) as joint co-defendants whereby a judge would then apportion liability as he feels is appropriate.
Thank you for this last. This is what my son, who is a lawyer has also said.
I'm glad we agree on the point.
Is there anything that says that it is anyone's responsibility to make sure this drain is maintained and in 'good order' so that the risk of flooding and damage to it is reduced. The amount of water that passes through it is enormous
The Highways authority have duties to maintain the highway open to the public and part of this duty includes the requirement to drain the highway. How they choose to do so is a matter for them (and they could choose to train the highway in a different manner in the future) but they have chosen at some point to lay the pipe you refer to under your land and given that they have done so, they owe you a responsibility to pay you compensation if the pipe causes any damage to your land subject to the caveat with regards XXXXX XXXXX potential joint responsibility for the private road landowner as above.
Yes, but do they have any responsibility to clean and maintain the drain so that it is kept in good order and is not at risk of deterioration and therefore posing a flooding risk to me
It's great that they will pay me compensation, but that's not great when I've already had my house flooded!
they owe no direct duty to you to clean the pipe and you cannot directly force them to do so. They owe a duty to road users to provide an appropriate form of drainage and any member of the road using public can make a complaint to the local authority if a road is not being drained adequately. The only duty they owe to you as a landowner is to pay damages to you if the pipe causes your land damage
Is there anything else I can help you with on the above?
Thank you. That is very clear and a great relief that they will repair the damage to the pipe and I imagine the compensation is the damage caused to my property as a result of the water damage.
Could you confirm that I've 'got' this correctly?
You may have a bit of a fight to get some cash for compensation out of them as you will be well aware that councils and local authorities are strapped for cash at present but you are correct that they have a liability towards you as you describe in terms of compensation if the pipe is damaging your land. Fortunately from what you say you have some able assistance in the form of your son if you were to need support in terms of bringing a claim against the highways authority
Yes I have, but unlike you he was only able to go with his 'felt' sense of what was correct.
I am glad I was able to point to some legislative authority.
You've provided the evidence and for that I am extremely grateful. I am sorry our process was somewhat constipated. But I've got there in the end. It is a great relief to me to have been able to get some concrete information about all this.
Thank you very much
A pleasure. I hope you are successful in resolving the matter swiftly from this point onwards.
If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though
I was very pleased to be able to resolve this matter as far as possible. You provided me with the concrete evidence for which I was looking in order to enable me to have some 'right on my side' and thus to take this matter forward
Many thanks for your feedback.