Whether you have a legal, tax, insurance, management or land issue, Farmers Weekly’s Business Clinic experts can help. Here, Fred Quartermain, solicitor at Thrings, offers advice on how to tackle a problem with water and slurry from a neighbour’s land.
Q My neighbour has a 10-acre field next to my boundary wall, where he has what is known as a dew pond. He has had an excavator to clean out the pond and has then put a drain pipe through my wall so the water will flow on to my land. This water is now seeping into my draw well, which is 17ft deep.
I use this well water supply for my cattle and sheep year-round. I have had a conversation with my neighbour and his reply was that he could do what he liked on his land.
In the past I have also asked him not to spread cow slurry too close to my boundary wall because with his field sloping toward my wall, during wet weather the slurry water contaminates the drinking water for my animals. Please advise on what I should do.
A Your query raises a number of questions. First, it would be worth checking the property deeds, or with the Land Registry, to confirm who the boundary wall belongs to, and what right your neighbour has to direct this surface water through the wall.
It may be that, even if your neighbour does have a right to modify the wall to allow water to pass through it, it is causing a private nuisance. This is caused by a party doing something on their own land, which they are entitled to do, but which has consequences that extend to the land of their neighbour – for example, by causing physical damage to your draw well.
The remedy for private nuisance will be an injunction requiring the nuisance to cease as well as the payment of damages (although the court might decide that damages alone are sufficient).
The object of damages is to place the claimant in the position they would have been had the nuisance not occurred, as far as possible. This means the damages awarded will usually be limited to the costs incurred or that need to be incurred in remediating the damage plus any evidenced consequential losses.
Actual physical damage can be relatively straightforward to identify with evidence and to calculate objectively and precisely. It is also possible for the person affected by the nuisance to act to reduce or remove the nuisance and in these situations reasonable remedial expenditure may also be recoverable through a claim.
Given that a private nuisance requires a court action, it is important to take full legal advice.
You should also consider whether alternative remedies, which don’t involve going to court, might be more appropriate or effective, especially where there is an ongoing relationship between you and your neighbours. It may be some form of alternative dispute resolution is a better option. This is something you can discuss with your advisers at an early stage.
It is also worth noting that contamination from slurry may be a separate actionable nuisance and could result in enforcement action by the Environment Agency.
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