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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience:  I have been practising for 30 years.
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We live by a river where the water mill owner downstream

Resolved Question:

We live by a river where the water mill owner downstream from us keeps the river level too high when not milling, or having an open day to show off renovations to the mill.
Having lived here for 36 years we now cannot use our land as we have been accustomed to as it is permanently waterlogged
Is there anything we can do?
Submitted: 2 months ago.
Category: Law
Expert:  F E Smith replied 2 months ago.

What explanation has the mill owner given for keeping the water level too high and what has his response to your requests to lower it been?

Is there no separate sluice around the edge of the mill to take the matter in cases like this?

How long you has this situation existed for?

Customer: replied 2 months ago.
He tells us he needs the river high to work the mill wheel, and has to have it working several times a year because of obtaining grants to renovate the mill. He says the EA has records to show it has always been at this height. These records are from approximately 2 miles downstream from us.
There are sluice gates but they are kept closed and there is no appreciable flow in the river.
This situation has existed for two years of the thirty six years we have lived here.
Customer: replied 2 months ago.
The mill ceased working over 100 years ago as we are told it wasn't viable by members of the family that owned it many years ago.
The owner now says that the level needs to be high for the fish, swans and ducks, all of which were quite happy with the levels before. We have lost the water voles that were along the bank.
Customer: replied 2 months ago.
Trees along the bank are suffering as although they like moisture they should not be waterlogged. Wild flowers that flourished are dying.
The bank is eroding and we assume the river is therefore silting up which makes draining our land even harder.
Expert:  F E Smith replied 2 months ago.

The relevant issue here is the length of time this has been happening. This is common law private nuisance. It is literally what it says, a nuisance.

However, if you had just moved into the property you would have no cause of action because although it’s nuisance, you would be deemed to have moved to the nuisance.

As it is, you have been the property for 36 years and the nuisance has now come to you and hence, it is actionable and you can abate the nuisance.

I don’t accept what the owner says about fish swans and ducks as indeed you don’t.

If there were animals living along the bank and they have moved, that is further proof. Similarly, with the trees which would be a matter for the local authority particularly if they have tree preservation orders.

The environmental agency, and the rivers authority may be interested in the eroding bank.

He may need the water level high to work his mill, but he would only need it high occasionally and even then, if it causes nuisance, it’s a problem for him.

The way of dealing with this, apart from contacting the agencies I mentioned earlier with the evidence that you have is to get your solicitor to write to him threatening an application to court for an injunction to compel him to lower the level of water to that which it was at 2 years ago.

Hopefully, the threat coming from the solicitor and the threat of substantial legal costs will spur the owner into action but if it doesn’t, you are faced with applying to court for an injunction and asking the court to award costs against the mill owner.

Meanwhile, you need to gather as much evidence if you can to support your contention that the water is now firstly higher than it needs to be and secondly higher than it has ever been and thirdly, the fact that it is now damaging the environment and finally, meaning that you cannot enjoy your property as you could before.

Check your property insurance and contents insurance to see if you have legal expenses cover that would pay for the legal costs of taking the issue to court. If you have, pass this on to your insurer

Can I clarify anything else for you?

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Best wishes.


F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience: I have been practising for 30 years.
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