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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 29194
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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We are suffering flood water running off our neighbours farm

Customer Question

We are suffering flood water running off our neighbours farm land and into our drive and then (if bad) into our house. We have parallel drives with our neighbour with a stone wall dividing them. At the end of the drives is an apron area, over which we both have access. We want to extend the wall over the apron area to divert flood water over the road. This will not restrict access, cause flooding to anyone else and we are prepared to pay for the work ourselves. Yet the neighbour is refusing to allow us.They have allowed us to dig a ditch on their land but apart from this, they have not taken any action themselves.1. Do our neighbours (Mr and Mrs. Wall) have a legal duty to stop flooding our property?
2. Can Mr and Mrs. Wall legally refuse to allow us to build the wall, bearing in mind that they are fully aware they are flooding our property, and there are allowing it to happen without taking any responsibility, preventative measures, or offering any solutions higher up on their own land? There is no negotiations, they just say “no”.
3. In view of 2. Above when our property floods the next time can we take a Civil action against them to recoup financial damages, and then ask them to pay for the cost of the wall? How likely are we to win?
4. The right of Way refers to passing and repassing with and without vehicles & animals, etc Subject to payment of half by each person for maintenance. Since we have been there no payments have been made by either of us. How possible is it to get this removed, bearing in mind these are no longer farms, but private dwellings.
5. In the Conveyance Fourth Schedule, Part II (c) the wording “such approval not to be unreasonably withheld” can this be used in our favour?
Submitted: 6 days ago.
Category: Property Law
Expert:  Virtual-mod replied 6 days ago.
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!
Customer: replied 6 days ago.
happy to wait
Expert:  Joshua replied 6 days ago.

Hello and thank you for your question. My name is ***** ***** I will be very pleased to assist you. I'm a practising lawyer in England with over 15 years’ experience. Please be aware that although I will endeavour to reply to you promptly, I am also in full time private practice and so I may not be available to respond immediately and it may also take me a few minutes to prepare a reply. The site will notify you as soon as I respond. I look forward to working with you to answer your question fully.

I am very sorry to read of the above and I imagine what a difficult position it must be. I will certainly try to clarify your options.

May I confirm the cause of the flooding is that of run off based on natural topography or the result of changes that the neighbour has made to their land - e.g. laying a new surface etc?

Customer: replied 6 days ago.
Hello Joshua,You are correct, the flooding is caused by the natural topography of the land.
Expert:  Joshua replied 6 days ago.

thank you. Where flooding occurs due to natural topography as opposed to something the neighbour has done to the land to exacerbate or cause the flooding, there is no legal obligation on the part of the neighbour to stem the flooding or take any action in respect of the same unfortunately. By contrast, the position is very different when the flooding was caused by something the neighbour has done to their land but from what you say, that is not the case here.

This being the case, whilst the neighbour may be willing to assist on grounds of good neighbourliness, should they be unwilling to do so, you would need to regrettably look at installing flood defences at your own cost either within your boundaries or at such other location with the express permission of the neighbour. taking issue your questions in turn using the same numbering for ease of reference:

  1. Discussed above
  2. they can refuse permission to build a wall on any part of their property or any land on which they have a right of way. They cannot object to you building a wall on your private property if they have no right of way providing that all is no higher than 2 m in height which would require planning permission
  3. Due to 1. above regrettably, I cannot see how one what basis you could do so unless you can prove the flooding is caused by something they have done to the land
  4. regrettably, it is almost never possible to remove the right unilaterally. In order to remove the right of way, you have to be able to show abandonment on the part of the persons who have the benefits of the rights of way. This is very difficult and requires evidence of a positive action on their part to abandon - i.e. they're doing something to make it impossible for them to exercise a right of way such as building a wall to make practical exercise of the right of way possible.
  5. I cannot comment on this wording without the context of what it refers to however in light of the above, I cannot see how such wording could be used given the high hurdles you would need to overcome.