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Stuart J
Stuart J, Property Solicitor
Category: Property Law
Satisfied Customers: 23761
Experience:  Senior Partner at Berkson Wallace
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I live at 92 Commercial Road, Hayle. I am aware that this is

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Hi,
I live at***** Hayle.
I am aware that this is a high risk flood area, and have lived in our property since 1986.
To the front of the property there is a cobbled gully, which was here when we moved in, and has worked efficiently up to now.
Rainwater has always run down this gully from the bottom of Cross Street to the drain at the entrance to the Cornish Arms in Hayle, owned by St Austell Brewery.
The cobbled gully is quite clearly visible on Google Maps, from the Sea Lane end.
The problem began when St Austell Brewery decided to re tarmac the pub car park, which when carried out the gully was removed and tarmacked over, therefore blocking the gully from No, 90 down, causing the water to build up in front of our houses.
A few of us wrote to St Austell Brewery to inform them of the problem, and after great difficulty, and debate they did say that a new 'gully' or 'drainway' would be put in (to me this was admitting that there was a problem). The company who laid the tarmac also agreed that the water build up was not right.
Well, they have been to cut out a channel in the tarmac, which us, the residents, do not feel is adequate unless it is kept clear of debris, and I am quite sure the present tenants in the pub are unlikely to do.
Can you please help/advise us on the best action to be taken, as we feel the gully may be under some sort of protection regarding the ancient drains of Hayle.
I have several pictures which I will endeavor to send to you, but please bear with me as they may come through in different emails (today technology somewhat eludes me!)
Yours most sincerly
Wendy Collier
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: We (local residents) submitted written letters to St Austell Brewery and they did meet us outside the Cornish Arms to discuss the problem but had to wait for rain for our concerns to be confirmed. A woman from the brewery did return, after several phone calls to her, and eventually decided to put some sort of gully there to aleviate the problem. The firm who laid the tarmac arrived later and admitted that there was a problem! and returned 2 weeks later to put a (narrow) gully it, but it is not allowing the water to flow away naturally. I have contacted Cornwall County Council with my concerns and they with - This area is not Cornwall Council owned and is not highway as I discussed with the residents on site. The location is a World Heritage area and is also a conservation area.When we had to undertake works near to Hayle War Memorial which required us to undertake works to the cobble drainage channel, exactly the same as the one outside the Cornish Arms, the planning and conservation areas stipulated that all cobbles were retained, similar cobbles located to fill gaps and specialist lime based materials used in the reinstatement. If this channel has been removed/damaged it is an issue for planning enforcement and I recommend that you report this to them direct via:***@******.***With regards ***** ***** flooding of the area outside your property as a result of the works, this matter is entirely a civil matter between the households effected and the Cornish Arms/Brewery. I have now sent an email to the planning enforcement officer and awaiting a reply, I am just concerned about it becoming a civil matter if I do not get a satisfactory answer from them and understand that until I get a reply from them I am unable to proceed further, but wanted to get things in motion in preparation.
JA: Have you talked to a lawyer about this?
Customer: No, not yet as I felt I needed to test other option first.
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: I can not think of any thing else, hopefully I have explained myself clearly enough!
Hello,

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Hello,
I apologise as we have not yet been able to find a Professional to assist you. Do you wish for me to continue to search for someone to assist you or would you like for us to close your question at this time?
Thank you for your patience,
Alina-Moderator

Customer Services have asked me to look at this for you.

The situation is relatively straightforward but clearly they are just nodding politely and do nothing about it so it is highly likely that you are going to have to at least use solicitors to send the threat of litigation letters before the brewery are going to do anything because the cost of the litigation is going to be huge compared to the cost of putting the problem right.

There are 2 potential issues here at least.

The first is that you now have a claim in common-law nuisance because this is literally on an ordinary English dictionary definition of the word nuisance.

Further, you did not come to this nuisance, but they created it so you have a claim to make against whoever did this which would be the brewery that instructed the work and the company that incompetently did it.

You potentially have a claim in negligence but the claim is the same.

It will help if I explain how claims in negligence arise.

There needs to be

1.    a duty of care

2.    the duty of care needs to be breached

3.    as a result of the breach there needs to be loss or injury

4.    the loss or injury resulting from the breach must be reasonably foreseeable.

In order for there to be a claim in negligence, all 4  heads have to be satisfied.

Finally, you have a claim for substantial obstruction in respect of an easement.  You have enjoyed drainage over this land and down the drain for as long as you can remember and therefore you have an easement for drainage under the Prescription Act.

By removing the gully it is, let’s face it, a substantial obstruction..

This is one of those where, as I said earlier, you are going to need the weight of a solicitors letter behind you. I’m afraid that we are specifically not allowed to take instructions from here.

If the site were to be a source of potential clients, we would no longer be independent because we would have an interest in pursuing litigation.  With no interest in pursuing litigation, we can be really objective with our view is to whether something has a good chance or a limited chance of success.

In any event, for logistical reasons you would be better using a local solicitor .

The only problem that you have is that whilst if you all get your heads together and put GBP500 into a legal fees pot, anybody who does not put money in has no risk but still gets the benefit.

Thank you for letting me assist you with your legal question.  I am glad that I was able to help.

I am not certain whether that answers the question for you or not, but I am happy to answer any specific points arising from this.

It will be my pleasure to help you again either further with this or any future questions you have

Kind regards

Stuart J, Property Solicitor
Category: Property Law
Satisfied Customers: 23761
Experience: Senior Partner at Berkson Wallace
Stuart J and other Property Law Specialists are ready to help you
Customer: replied 16 days ago.
Thank you Stuart, that gives me some information to work on. I am still waiting, hoping!, that the Planning Enforcement will come up with something positive, as I really do not want to have to add to the stress that 'us' residents have already endured, but for our own safety I think we will have to.
It is reassuring to know that you are on the end of this line if I need further assistance and advice. It is greatly appreciated.
Your sincerly
Wendy Collier