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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.
May I ask is the pipe you refer to in any related to his pond please or has it nothing to do with the pond directly?
it was a blocked balancing / over flow pipe which was linked to his pond, and to another neighbours pond three doors away from us , which we broke and mended with a rubber expansion Bung and then cemented which he asked us to do
Thanks. Do you know if he has a right to use the pipe by reference to your title deeds? Alterantively has the pipe been there for more than 20 years?
we think it has been there for more than 20 years, the pond is a natural clay lined pond which has been there over 80 years. we are not sure about the deeds but will try and find out .
Thanks. Finally from what you say has he provided no evidence of any ongoing leaks?
The only evidence is that the pond level has dropped 2 or 3 inches, over the last 4 weeks, which ive been advised could be due to weather and evaporation , and he is saying that the ground closest to the pond and my fence panels, is very wet and soft under foot but it was like that 6 weeks ago when we first put the new fence posts in, this part of the ground between the pond and my fence is only 2ft
Thanks. The starting point is that he is responsible for retaining water in and on his land subject to natural topography in terms of water run off. Clearly a pond is not natural topography and therefore if water is leaking out of his pond, the starting point is that is his responsibility to rectify.
If he can show on the balance of probability that works you have carried out to your land have damaged his pond in some way then he can seek damages for the damage but the burden of proof is upon him to show this not for you to prove that you have not damaged his pond just because he claims you have
Accordingly in respect of the pond itself you may wish to consider denying liability in respect of any damage to his pond and putting him to strict proof in respect of any damage he claims you have caused.
In respect of the pipe here the starting point would be that unless he has a right to run the pipe under your land or can show that it has been there for 20 years or more then the pipe amounts to a trespass for which you could consider claiming damages for based on the market value of granting an easement for such a pipe. However if it has been there for more than 20 years as you suspect then he will have a right under the prescription Act by long user. Notwithstanding the above, again if you have damaged the same there would be an obligation to rectify that damage but if you have done so then once again the burden of proof switches to him to evidence that you have not rectified the same.
Thank you Joshua, for you advise its been a great help.
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