My neighbour has tiled his backyard and inserted a central drainage channel. I assume that the tiling is cambered to facilitate drainage, we were not present when this work was completed. On tidying under my garden hedging, I found that the drainage channel is open at my end under my hedging so that water drains into my garden. Is it permissible or legal for him to have built this drainage channel in this way? For a variety of historic reasons, there is no point in my talking to my neighbour about this.
The arrangement of the drainage channel you describe appears to be the action of a negligent and inconsiderate neighbour. The obvious effect is that virtually all the surface-water falling on his yard, in addition to water that may be discharged from other sources including overflowing gullies, power washing of the yard and so on, will now be directed towards your garden via the channel he has inserted. The extent of the potential damage to your garden is difficult to assess but moss growth is likely if your garden remains saturated, especially the area close to your hedge if it is shaded.
If you propose to sell your house in the future, the purchaser’s surveyor would be likely to report on the drainage arrangement and its possible adverse implications. This may result in the purchaser’s solicitor raising a query about the length of time the drainage has been in place and if an easement that benefits your neighbour is likely to be created. Any arrangement between properties, in which the use of one property is facilitated by another property is known as an easement. Rights of way, services wayleaves and so on are examples of easements.
Easements that have not been agreed in advance by a deed or other formal agreement but exist for 20 years or more, without objection, are known as easements by prescription. Your solicitor will advise if there is a risk that this drainage arrangement can be deemed, in due course, to be an easement by prescription.
You state that for historical reasons there is no point in talking to your neighbour. It is, however, important that you notify him without delay, preferably by way of a written and dated note, of your objection to discharging surface water into your property and to ask him to immediately cease this activity. This written note will prove significant and useful to your solicitor if your neighbour persists in his actions and you have no choice but to seek legal advice.
You should also consult your local authority planning department. The paving over of backyards is generally exempt from planning permission within certain limitations. These limitations relate to changes including proposed heights relative to adjoining properties and to sustainable drainage practices.
In the meantime, it may be possible for you to create a low-level earth barrier on your side of the boundary that would prevent the ingress of water into your garden. You will get advice on a suitable fine-grained clay or other material to create a barrier from a professional gardener. You are entitled to do this on your property but avoid any action such as interfering with the boundary hedge that may escalate the situation.
In addition to notifying your neighbour of your objection, you should record details of all interactions with him. All such evidence will be useful to your solicitor and will therefore support your case in seeking to have the situation resolved.
Patrick Shine is a chartered geomatics surveyor, a chartered civil engineer and a member of the Society of Chartered Surveyors Ireland
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