Rights of Natural Drainage and the Common Enemy Rule

Rosalie Snocken and John Bates

February 2017

A paper presented to the Society of Construction Law at a meeting in London on 1st November 2016

This paper looks at the rights and liabilities of landowners in respect of water flowing over land and in watercourses. In particular, the authors consider the application of the common enemy rule, which allows landowners to build on their land in order to prevent flood waters, and if flood waters that would have entered their land damage another's land they are not liable in nuisance.The paper goes on to examine claims for compensation following damage caused by operations to prevent flooding or during a flood.

Rights and duties of private landowners - Distinction between water flowing over land and in a watercourse - Rights and duties concerning water flowing over land - Common enemy rule - Rights and duties concerning water flowing in a watercourse - Compensation for flood risk operations - Flood risk management works - Compensation - A claim for compensation - Flood risk management strategies - Would the damage be actionable at common law? - Limitation - Tribunal procedure.

The authors: Rosalie Snocken and John Bates are barristers practising at Old Square Chambers, London.

Text 11 pages.