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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9339
Experience:  I have been practising for 30 years.
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Our local golf club has written us alleging that we are

Customer Question

Our local golf club has written us alleging that we are causing them a nuisance. They claim that water flowing from our property has recently changed direction and now drains across the centre of their car park. We own a small fresh water pond that is filled from a culvert/pipe emanating from the house next door. The water flows out of the pond within a metre and trickles down to the golf club car park (tarmac). We bought the property 13 years ago and have not changed the arrangement. We believe it to be much older than that. Any advice please?
Submitted: 12 months ago.
Category: Law
Expert:  F E Smith replied 12 months ago.

I’m sorry but I’m not going to be able to give you much good news.

The fact that you may have bought the property 13 years ago and this problem existed at that time, is not relevant. You buy the property inheriting its problems.

If this were to have drained across the car park for 20 years, there were, then you could claim an easement for drainage under the Prescription Act.

However it has changed direction for whatever reason, it is your pond and you are responsible for debating the nuisance.

However even though you may be able to claim an easement, it must not cause nuisance which is what they are suggesting.

You would also be responsible for any damage caused by the water drainage or for the removal of any algae for any injury if anyone slips on the algae.

I don’t know what they are asking you to contribute one third towards.

Can I clarify anything else for you?

Please rate the service positive. It is an important part of the process by which experts get paid. It does not cost you anything but helps us greatly.

Best wishes.

FES

Customer: replied 12 months ago.
Thank you. They are suggesting a concrete sink hole on my property to help disperse the water. I need to make the point that this is a natural flow of water that would have crossed their car park whether or not my pond existed. They have known about this issue for a long time - they have a field drain. The water has simply moved direction away from the drain. Sorry if I didn't make this clear.
Expert:  F E Smith replied 12 months ago.

If the water crosses your property from somewhere else, then you may have a claim against wherever the water is coming from. It depends on whether anything on your property (the pond) is responsible for diverting the water so that it causes nuisance.

It depends on the reason why the direction of the water has moved away from the drain as to whether you are liable for that or not.

F E Smith and other Law Specialists are ready to help you
Customer: replied 12 months ago.
Thank you. The neighbour and I are considering offering to put in a concrete channel to take the water directly to their field drain. We both feel that the golf club needs to accept the water directly into a suitable drain as it is a stream with no stop tap!
Expert:  F E Smith replied 12 months ago.

If the water has been draining into their drain for more than 20 years, then you have acquired an easement under the Prescription Act to allow the drainage to continue as previously.

Customer: replied 12 months ago.
Many thanks for your advice - money well spent!
Expert:  F E Smith replied 12 months ago.

I’m glad to help. Best wishes.