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A199/14

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 121

OPINION OF LORD MULHOLLAND

In the cause

GAVIN HAMILTON

against

THE SCOTTISH MINISTERS

Pursuer: Barne; Clyde & Co (Scotland) LLP

Defender: Burnet; Anderson Strathern LLP

Pursuer

Defenders

15 September 2017

Introduction

[1] This case concerns whether the pursuer has a natural right of drainage from his land,

lying to the north of Lairs Farm, bounded to the east by the M74 Glasgow/Carlisle Trunk

Road, over the adjoining lower lying property comprising the bounding section of the M74

and, if so, whether the M74 interferes with that right. The pursuer seeks a declarator to this

effect. The defender refutes these claims.

[2] The pursuer is Gavin Hamilton. He is the proprietor of Lairs Farm, Blackwood. The

defenders are the Scottish Ministers. The case came before me for Proof Before Answer. At

the outset, it was agreed by parties that the Court would not consider the question of the

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quantum of damages, but address only the issue of liability on the understanding that, if the

defenders are held to be liable, they will enter into negotiations to solve the pursuer’s

drainage problem. At the Proof Before Answer, the pursuer led evidence in support of his

case. The pursuer gave evidence and led evidence from Kenneth Phillips, who prepared a

report on the drainage problem in 2009 which is 6/3 of the inventory of productions;

Hamish McCall, a land agent who spoke to the pursuer’s drainage problem and

correspondence with the defender and South Lanarkshire Council; Susan Morton, a

representative of South Lanarkshire Council who spoke to the works carried out by the

council to investigate the problem and Gaye McKay, the pursuer’s expert witness who

produced an expert report which is 7/5 of the inventory of productions. The defender led

evidence from David Devine, a representative from Roads Scotland and Jonathon Crawford,

the defender’s expert witness who produced an expert report which is 6/24 of the inventory

of productions. A Joint Minute was submitted agreeing certain facts. Written submissions

were submitted in addition to the oral submissions from counsel for the parties.

The Land which is the subject of this Litigation

[3] The pursuer is the heritable proprietor of land at Lairs Farm, Blackwood. The

pursuer's title is recorded in the Land Register under Land Certificate title number

LAN 93204. The land is located to the south west of the village of Blackwood in

South Lanarkshire. At the north east part of the farm is a field (“the field” – field one) which

is currently subject to flooding (also referred to as ponding). The field is bounded by the

B7078 Carlisle road which crosses it from north to south. To the east of the field is a strip of

land (“the strip”) which is bounded to the east by the M74 Glasgow/Carlisle road. The strip

is also currently subject to flooding and prior to the construction of the B7078 formed part of

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the field. The field is bounded to the north by a disused railway line and Northfield

Residencies, agricultural fields to the west and Lairs Farm to the south. Fields two and three

of Lairs Farm are situated south of “the field” (field one) and are bounded to the east by the

M74 Glasgow/Carlisle road.

The Pursuer’s Case

[4] The pursuer asserts a natural right of drainage over the defenders’ heritage, namely

the section of the M74 to the east of the pursuer’s land. The natural right of drainage exists

as a result of the pursuer’s land being higher than the defenders’ land and as a result the

inferior tenement [the defenders’ heritage] is obliged to receive the water falling from the

superior tenement land [the pursuer’s heritage]. This is the exercise of the natural right of

servitude, is imprescriptible and res merae facultatis (schedule 3 to the Prescription and

Limitation (Scotland) Act 1973). As a result of problems with the drainage to the north east

of the pursuer’s field, the pursuer’s drainage system was reconnected to the old drainage

system to the west and east of the B7078. As a result, water was making its way to the verge

of the M74 land where it was being prevented, as a result of damage to the old drainage

system, from passing to its natural drainage outfall (beneath a footbridge on the east side of

the M74). This caused the water to fail to drain and back up, flooding the north-east corner

of the pursuer’s field and strip. The old drainage system on the defenders’ land was acting

as a barrier to the pursuer’s natural right of drainage and the defenders were accordingly

liable to restore the old drainage system on their land to full working capacity.

Declarator Sought

[5] The pursuer seeks a declarator in the following terms:

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“(i) the pursuer has a natural right of drainage from his land, lying to the north of

Lairs Farm, bounded to the east by the M74 Glasgow/Carlisle Trunk Road (the

"M74") and registered in the Land Register under Land Certificate title number LAN

93204, over the adjoining lower lying property comprising the bounding section of

the M74; and (ii) the M74 interferes with said right.”

The Defenders’ Case

[6] The defenders do not admit that the natural line of drainage follows the lie of the

land and runs down through the north-east corner of the pursuer’s field, along a pipeline

terminating in a burn north of the village of Blackwood and east of the M74. As part of the

construction of the M74 (widening of the A74 to become the M74) and the section of

the B7078 which crosses the pursuer’s field from north to south (in 1985/86), all existing

roads drainage pertaining to the A74 in this location was infilled or removed and replaced

with a new drainage system. As part of the construction of the section of the B7078 bisecting

the pursuer’s land, a new drainage system was constructed to deal with the pursuer’s field

and surface water run-off from the farmlands to the north. If properly maintained this field

drainage system was adequate to remove surface water run-off and groundwater flow and

prevent water accumulation in or flooding of the field. This drainage system was effective

until 2009. South Lanarkshire Council are the roads authority responsible for the

maintenance of the B7078. In accordance with that duty, South Lanarkshire Council carried

out works to identify and alleviate flooding in the north-east corner of the field. The

council’s preferred option was to connect the land drainage to the road drainage system for

the B7078. However, this could not be completed due to the presence of a gas main in the

area. In consequence, the council connected an existing pipe, part of the field drainage

system, to a pipe which ran underneath the B7078 without checking where the outfall for

that pipe was located and whether the pipe was part of a working field drainage system. It

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was an old defunct land drainage pipe for the pursuer’s land prior to the construction of

the M74 and section of the B7078 for this location. This pipe did not connect to the

watercourse and outfall to the south. Had the council checked for outflow before connecting

the field drainage it would have been apparent that it was not connected to a drainage

network. Acting reasonably, the council would not have connected the drainage from the

pursuer’s field to it. Any failure of the drainage system for the pursuer’s field was caused

by one or more of the following factors:

(a)

lack of maintenance by the pursuer of his own private field drainage system;

(b)

lack of maintenance by the council of the adopted road drainage for the

relevant section of the B7078;

(c)

impact damage to a discharge pipe of the B7078 drainage system caused by

utility works;

(d)

impact to a discharge pipe caused by a new development, and/or

(e)

road widening works and formation of new footways on the B7078 carried

out by or behalf of the council.

Any drainage pipeline found severed next to the M74 was not the cause of the ongoing

drainage problems in the pursuer’s field.

[7] In order for the pursuer to succeed in obtaining the declarator sought he needs to

prove, on the balance of probabilities, that he has the natural right of drainage contended for

and the M74 interferes with that right. I will deal with both questions in turn but before

doing so, it is appropriate to set out the law governing the issues.

The Law

[8] The law in this area is that water outside a definite channel is permitted to drain with

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the natural inclinations of the land. The rule is described by Erskine, Institute II,9.2. as

follows:

“Where two contiguous fields belong to different proprietors, one of which stands

upon higher grounds than the other, nature itself may be said to constitute a servitude

on the inferior tenement, by which it is obliged to receive the water that falls from the

superior. If the water which would otherwise fall from the higher grounds incessantly

without hurting the inferior tenement should be collected into one body by the owner

of the superior, in the natural use of his property, for draining his lands, or otherwise

improving them, the owner of the inferior tenement is, without the positive institution

of any servitude, bound to receive that body of water on his property though he

should be damaged by it. But as this right may be overstretched in the use of it,

without necessity, to the prejudice of the inferior ground, the question how far it may

be extended in particular circumstances must be arbitrary".

The inferior heritor is not entitled to cause the water to be thrown back on the land of the

superior heritor, either by damning up a stream, or by impeding the natural drainage, see

Bell’s Principles (Guthrie edition) at paragraph 969. The superior heritor may clear his land

of superfluous water, without regard to consequential effects on the inferior tenement, ibid.

The inferior must receive the superfluous water, even under the operations of draining, in

all the variations of agricultural improvement, subject to equitable regulation by the Court if

the superior owner should unduly press his right to the injury of the lower, see

Bell’s Principles at paragraph 968 and Campbell v Bryson([1864) 3 M 254 per Lord Justice-Clerk

(Inglis) at page 260. In this Inner House case Erskine’s principle, as set out above, was

approved by the Lord Justice Clerk at pages 259 and 260, Lord Cowan at page 261 and

Lord Benholme at page 262. With regard to regulation by the court of the exercise of this

right, Lord Justice Clerk (Inglis) noted at page 260 that,

“ if the inferior heritor complains that the superior heritor is unduly pressing his right,

and making the servitude intolerable to him, he will have the right to come to the

Court with his complaint, and the Court will be entitled to regulate the matter between

the two upon equitable terms. That is the true meaning, I apprehend, of the

qualification which Mr Erskine adjects to the general statement of the doctrine; and to

the doctrine with that qualification I unhesitatingly subscribe.”

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Lord Neaves described the regulatory power of the court at page 263 as follows:

“The natural servitude of transmitting water and the servitude of way are subject to

regulation, and can never be nimiously used or abused, and the party bearing the

burden is entitled to have it regulated according to the circumstances.”

With regard to whether the natural servitude described by Erskine is extinguished by the

superior heritor’s use of man-made drains, Lord Neaves dealt with this at page 263 as

follows:

“Now, the question comes to be this - Is that confined only to the case when the upper

tenement is in a state of nature? If that can be stated to be the law, it would be rather a

lamentable doctrine - a very anti-social one indeed. That land must remain

uncultivated, must remain unploughed, must remain in a state of nature,

comparatively unproductive, otherwise you cannot get the water that falls upon it

carried down upon the lower tenement; because I take it that there is scarcely any

mode of cultivation that does not to a certain extent affect the descent of the natural

water. A natural ditch will form itself. Is that never to be cleaned or cleared out? Must

it be left to itself, to choke or silt up? Is nothing to be done to facilitate the drying of the

land by means of that natural exit or outfall? I take it that proposition can never be

maintained. And when once you allow that cultivation must be permitted, although it

must have a tendency to send down more water than if the land were left

uncultivated, is a proprietor to lag behind in the improvements of the day? Is he not to

have a deeper drain, or to cover the drain when that may be of use to him, if he have a

general right to have his water carried away, and does not exercise that in a manner

nimious, and at variance with the usual course of cultivating his land? What he does

must be for the purpose of cultivating his land. He is not to make a river for the

purpose of making a river. He is not to make anything that has a sinister object. His

object must be to cultivate his land; and if he keeps to that, and uses the ordinary

means, it appears to me that the other party, subject to regulations where necessary,

must bear the burden.”

See also Lord Cowan at page 261; Ferguson, The Law of Water and Water Rights in Scotland at

page 295 and Gibbons v Lenfestey and another (1915) 84 LJPC 158 per Lord Dunedin at

page 160.

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The Evidence

[9] Having set out the law, I now turn to the evidence and my assessment of it. The

pursuer, in evidence, confirmed that his father purchased Lairs Farm in 1994 and the

pursuer’s title to it was registered on 20 January 2000 (Land certificate Title number

LAN93204 which is 6/1 of the inventory of productions). A section of the B7078 runs

through his field (east of the field and west of the strip) which was constructed in 1985/86

along with the widening of the A74, which as a result attained motorway status (M74). This

time frame is supported by a letter from First Scottish Searching Company to the pursuer’s

solicitors dated 1 May 2014, which is 6/20 of the inventory of productions, which confirms

that the land necessary for the widening was compulsorily acquired on 4 January 1985. The

defenders are heritable proprietors of the solum of the land on which the section of the M74

adjoining the strip is situated and the roads authority in which the said section of road is

vested for the purposes of their functions as roads authority, including management and

maintenance, in terms of the Roads (Scotland) Act 1984 (paragraph 2 of the Joint Minute of

Agreement). The defenders are heritable proprietors of the solum of the land on which the

section of the B7078 on the east side of the pursuer’s field is situated. South Lanarkshire

Council is the roads authority in which this section of road is vested for the purposes of their

functions as roads authority, including management and maintenance in terms of the Roads

(Scotland) Act 1984 (paragraph 3 of the Joint Minute of agreement). The drainage problem

in the north east section of “the field” first manifested itself in Spring 2009.

Kenneth Phillips, a Principal Agricultural Consultant, was instructed to investigate the

matter. He described an area of distinct wetness which extended for much of the length of

the eastern boundary of the field and for some distance into the field. There were also other

areas of wetness extending westwards along the hollows in the field. The pursuer in his

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evidence described this section as a low lying area sloping towards the M74. He had not

been aware of a drainage problem before. He has been familiar with the farm land

since 1994 and therefore I am able to hold that the drainage arrangements covering the field

and strip worked effectively for at least 15 years. No witness who was asked about the

matter was able to identify a cause or trigger for the flooding. As a result, I am unable to

make a finding as to cause, other than to record that some unknown factor must have

caused the flooding. Since 2009 the pursuer has suffered from flooding in this area.

[10] A ten inch pressure gas main also runs through the pursuer’s field (7/4 of the

inventory of productions). It is situated about 20 feet from the field boundary. Following

the discovery of the flooding the pursuer, in an attempt to identify the cause of the flooding,

contacted Scottish Gas Network (SGN) to report the flooding. He believed that the gas

pipeline was the cause of the problem. Sweeney Drainage Contractors were instructed by

SGN to undertake enquiries on their behalf. Sweeney Drainage carried out this work

in 2009. The assessment confirmed that areas of the field were lying in pools of water and

when sections of the field drainage were excavated they were found to be full of silt. A

survey identified two fire clay pipes at different levels (one higher and one lower) at the

north east corner of the field, which were thought to be the drainage outlets from the field.

The roadside verge was excavated to inspect two fire clay pipes which revealed that both

pipes were blocked. Excavation was also carried out on the opposite side of the road, which

found one pipe continuing towards the M74 (paragraph 3.4 of the report by Cadogans dated

July 2016, which is 6/24 of the inventory of productions, authored by Gaye McKay and

spoken to by her in evidence). Work was carried out by South Lanarkshire Council in the

summer of 2009 to investigate the problems and implement a solution. This was consistent

with their duties as roads authority for the B7078 (section 1 of the Roads (Scotland)

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Act 1984), which includes the verge strip of land adjacent to the B road. The formal

adoption plans were not in existence but a roads authority would usually adopt 2 metres

either side of a carriageway. The field drainage was linked to the B7078 road drainage

system. Investigations, which involved excavations of the verge, revealed two fire clay

carrier pipes, one on top of the other. Pressure jetting and gully machines revealed that the

pipes were blocked in the verge of the B7078 (evidence of Susan Morton, South Lanarkshire

Council Network Team leader for Roads and Transportation). The council was only able to

get a hose in for several metres before encountering an impassable obstacle. In order to

restore the drainage to working order, work was commissioned by South Lanarkshire

Council to install a new manhole (6/2 of the inventory of productions is the Works Order

issued in October 2009). A new manhole was installed which is shown at figure 4.2

(photograph) of page 8 of the report by JMP Consultants Ltd, which is 7/5 of the inventory of

productions. A picture of the old and new manholes is shown at figure 4.1 of this report

(page 7). The manhole contains three pipes, namely the field outfall pipe, the outfall pipe to

the east (which is the higher of the two carrier pipes to the B7078 drainage system) and the

outfall pipe to the north (which is the lower of the two carrier pipes). The higher of the

two carrier pipes was connected to the B7078 drainage system which involved replacing a

section of crushed pipe. However, the lower of the two pipes (to the north) could not be

connected directly into the B7078 drainage system for gravitational reasons. The council

considered that the lower pipe could be provided with an outfall by running the pipe

northwards, either to run directly into the burn or to connect it into the B road’s drainage at

a point where gravity supported the connection. However, a view was taken that this

would require mechanical digging around the gas main which was deemed unsafe and

therefore was not taken forward. Susan Morton in evidence (re-examination) stated that if it

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was possible to connect the lower pipe to the road drainage system it would have been

done. However, there was evidence that instead of being dug by a machine, this could have

been dug by hand (which would have been more onerous but not so onerous that it could

not be done) and the connection effected by this means. This was not done and the lower of

the carrier pipes was not connected to the road drainage system or directly to an outfall.

[11] These works resulted in an improvement, but not a cure, as, albeit there was a

lowering of the water in the north east corner of the field, water was still backing up in the

field (see paragraph 3.2.1.4 and photograph 2 at page 6 of the report by Cadogans dated

July 2016). A meeting (and excavation) was held on site with the pursuer, the Council, said

Kenneth Phillips and Brian Sweeney of Sweeney Drainage Contractors on 21 October 2009.

A letter dated 9 November 2009 from the pursuer to Amey, contractors for Transport

Scotland (6/4 of the inventory of productions) sets out the outcome of the meeting. The

letter records that last month the council made a road crossing of the B7078 to reconnect a

nine inch drainage pipe, which was severed during construction approximately 20 years

ago, leading from Lairs Farm, Blackwood. After reconnecting this pipe it was discovered

that water was not flowing away. An area of ground was dug up next to the M74 boundary

fence where the nine inch pipe passes under the M74 and during a meeting with Ian Downie

of the Council, Ken Phillips (drainage expert) and Brian Sweeney (drainage contractor), it

was concluded that the problem is now within the boundary of the M74 where the pipe is

possibly severed. The letter ends with a request for Amey to take the matter forward. At

around the same time (November 2009) said Kenneth Phillips of the Scottish Agricultural

College produced his report commissioned by the pursuer. The report is 6/3 of the

inventory of productions. Paragraph 1 (page 3) of the report sets out the remit which is to

review the land drainage issues and establish if the drainage issues were the result of

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deficiencies in the remedial drainage works carried out when a gas pipeline was installed or,

if not, to establish their cause and possible remedial actions. In relation to field one (the field

in which the water logged north east corner is situated), Mr Phillips opined at page 4,

paragraph 5 as follows:

“It was clear from a visual estimate of levels that the construction of the motorway

would have severed the outfall drain from this field. It was not possible to say if

having been severed it had been connected into the motorways surface water drainage

arrangements. It was however clear that without such a connection, the field lacked an

outfall for its drainage water and that such a lack of outfall could explain the drainage

issues observed within the field. It was concluded that the drainage issues within this

field were most probably mainly or wholly as a result of disruption to the outfall pipe

during road construction works.”

In respect of fields two and three, he recorded that there was an area of wetness within the

fields extending north south along the fields. Some exploratory work on the drainage

system had been undertaken and it appeared from this that the flow of drains from the

higher part of these fields had been interrupted as a result of construction works on the gas

main and that not all of the existing field drains had been tied in across the pipe track during

the post construction phase. He concluded that the drainage problems within these fields

were largely the result of unrepaired damage which occurred during the gas pipeline

installation (page 4, last paragraph). He made a series of recommendations. In respect of

field one, he made recommendations as follows (my numbering):

(i)

Confirm that the flow of the drain below the B7078 road is unimpeded.

(ii)

Undertake works to identify if the main drain from the field had been

connected into the motorway drainage system.

(ii)

If no such connection had been made into the motorway drainage system

determine if connection is possible failing this check levels then dig a deep

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trench from the existing drain to the stream which flow east west

approximately 100m to the north.

(iv) Only once an adequate and clear outfall is available for the drainage water,

carry out remedial drainage works within the fields. These works to include:

(a) Exposing sections of the main drain to check that the blow-up

that are seen have not resulted in disruption to the pipe

system,

(b) Exposing sections of the main drain along the western edge of

the field and opening some of the laterals to check that these

are functioning and free of silt. It being possible that with the

flow from the field being impeded, a build-up of silt within the

lower section of the drain laterals may have occurred. If this

has happened rodding or jetting will be required to clear them.

He made a further series of recommendations in respect of fields two and three which

involved the construction of a new drain on the high side of the gas pipeline, connecting any

drains flowing down from the higher parts of these fields into this high side drain, and

connecting the high side drain into the stream at appropriate points, thereby providing an

outfall (page 5 of the said report).

[12] A protracted period of correspondence followed which added to the frustration felt

by the pursuer. The pursuer wrote to Transport Scotland, the roads authority for the M74,

on 27 November 2009 advising that as the drainage water cannot pass under the M74 it is

building up at the boundary fence, where it could cause flooding problems during

prolonged rain. The problem was placed in the hands of Transport Scotland for their

prompt attention (6/5 of the inventory of productions). On 9 March 2010 the pursuer wrote

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to Transport Scotland following up on an unproductive telephone call (6/6 of the inventory

of productions). The terms of the letter are as follows:

“Thank you for taking my telephone call yesterday, you asked me to write in for an

update on the drainage problem because you could not tell me anything. As I stated

numerous times to yourselves and Amey, the meeting we had with South Lanarks

Roads, Scottish Gas, Drainage Contractor and Land Drainage Expert all say the

problem drain is within the motorway boundary. You mentioned the field where the

main leader drain runs from and under M74 is 'boggy'. This is because the field

drainage main leader is not working. It is some considerable time since I raised this

matter with yourselves and Amey - is there a funding problem? How long will it take

to fix the problem? I leave this in your hands for your prompt attention.”

An investigation was then carried out by Transport Scotland which involved trial hole

excavations at the verge filter drain to check for any connections into the trunk road

drainage system and sondeing the recently installed road crossing below the B7078. The

results of this work are set out in a letter from Amey to the pursuer dated 5 October 2011,

which is 6/7 of the inventory of productions. The excavation found no evidence of

connections into the verge filter drainage system. The pursuer in his evidence said that the

excavation was in the wrong location (also paragraph 3.5.1.1 of the report by Cadogans

dated July 2016). The sonde was traced across the B7078 to where (at a point 17 metres into

the field area, approximately 18 metres from the boundary with the trunk road), due to a

possible collapse or blockage, it would not go any further. Anticipated further works were

detailed in the letter by Amey. In April 2012 a site inspection and excavation by Amey

confirmed that there was a void in the drainage system on M74 land. The void was about a

foot and a half in length. This is shown in a photograph which is 6/8 of the inventory of

productions. This generated a letter from Hamish McCall of Lawrie and Symington, a

company who deal with agricultural claims against utilities who had been instructed by the

pursuer. The letter is dated 20 April 2012 and is 6/9 of the inventory of productions. It states

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that the recent site investigations on the M74 verge at Lairs Farm showed very clearly that

the motorway drains leading from Lairs Farm were terminated approximately 6 feet into the

motorway verge. The drains had been terminated during the time of the construction of the

hard shoulder of the M74, approximately 20 years ago, during which time the field drains

had been silting due to the outfall being cut off, causing areas of Lairs farm to become

waterlogged. Permission was requested to instruct a drainage contractor to re-drain the

field or alternatively have a meeting to discuss the best way forward. As no response to this

letter was forthcoming, three reminders dated 6 June and 10 July 2012 (x 2) were sent to

Amey (6/10, 6/11 and 6/12 of the inventory of productions). Amey responded on 11 July

2012 by letter to Lawrie and Symington (6/13 of the inventory of productions). The letter

accepted that there was a pipe which entered Transport Scotland land on the M74, however

it was not proven which drainage system the pipe belonged to or that it connected to the

drainage in the verge at any point or had been terminated during construction of the hard

shoulders. Notice was given that Amey intended to carry out a CCTV survey of the verge

drainage in order to identify any connections to the system. No evidence was produced that

Amey carried out the CCTV survey. Mr McCall of Lawrie and Symington replied to this

letter on 24 July 2017 (6/14 of the inventory of productions). The letter was as follows:

“…as you correctly state, the site investigation highlighted the drainage pipe from

Lairs Farm was terminated within six feet of the boundary of the motorway verge.

This drainage system used to cross under the motorway and the outfall was on the

burn on the east side of the motorway, north of the village of Blackwood. All the

drainage off of this section of Lairs Farm gathers in a cundy on the west of the B7078,

goes under the road and crosses the rough ground of Lairs Farm and out into the

motorway verge. We are quite happy to demonstrate this to you and we are quite sure

that the local authority would only be too happy to endorse this as they built the

cundy and renewed the drain under the B7078.”

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On 12 November 2012, Amey responded by letter (6/15 of the inventory of productions)

providing an update on progress. The letter confirmed that investigations had been

completed and that work was underway with Transport Scotland to verify whether there

was any documentation to confirm whether any private drainage system was given

permission to connect into the trunk road system in this area. On 23 November 2012, a

further letter was sent by Mr McCall of Lawrie and Symington to Amey (6/16 of the

inventory of productions). The terms of this letter are as follows:

“We refer to your letter of 12th November 2012 and draw your attention to our letter,

dated 24th July 2012 addressed to yourself, where you will see the private drainage

system has always gone into the drainage system used to cross under the motorway to

reach the outfall into the burn on the east side of the motorway, north of the village of

Blackwood. This is the way this water has gone since the motorway was constructed.

The problem occurred when the hard shoulder was added to the motorway and, your

site investigation highlighted, the drainage pipes from Lairs Farm were terminated

within six feet of the boundary of the motorway verge.

There is no documentation required for field drainage systems and all we wish is for

the original system to be reinstated or an alternative route found that will allow our

client's fields to drain as they did in the past. We have suggested before that we are

pleased to meet with you on site to demonstrate the problem but ask that you treat this

as a matter of urgency in view of the fact that our client's fields are suffering

seriously.”

[13] In March 2016, Gaye McKay of Cadogans, consultant engineers, was instructed by

the pursuer. She is a chartered environmental scientist with 19 years' experience in flood

related matters. She has worked for regulatory authorities and the private sector and has

extensive experience in flood risk management, catchment management and sustainable

drainage. She has worked closely with the Scottish Government in the development of

several national drainage guidance documents and was responsible for reporting to the

Scottish Government on the findings of the responses to the public consultation on “The

Future of Flood Risk Management in Scotland”. This resulted in recommendations for new

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legislation to provide a sustainable approach to flood risk management. She authored the

national guidance on Managing Surface Water and Urban Drainage in Scotland, on behalf of

the Scottish Government. She has a master’s degree in Wastewater and Environmental

Management and has worked in the area of water and flood management for many years

across the UK. She was an impressive witness whose evidence I accepted. She was

measured, not prone to speculation, based her opinions and conclusions on verified facts

and was clearly an expert in her field. She was the most impressive of the expert witnesses

who gave evidence. She was instructed to prepare an expert witness report addressing the

possible causes of flooding which had occurred at Lairs Farm. In order to discharge her

remit a CCTV survey was carried out. The purpose of the CCTV survey was to identify any

blockages in the pipe which conveys land drainage from Lairs Farm, beneath the M74 and

which discharges to the east side of the M74, from an outfall within a disused railway bridge

(paragraph 4.1.1.1 of her report which is 6/24 of the inventory of productions). The first

survey took place on 31 March 2016. On the day of this survey the area had been subject to

heavy rainfall and the pursuer’s field had a significant accumulation of surface water and

the manhole immediately downstream of the field (adjacent to the B7078) was close to

surcharging. However, on this date the camera was unable to survey the required length of

the pipe due to crushed rock debris. A second CCTV survey was carried out on 23 June 2016

which revealed that there was a gap in the 225mm diameter circular vitrified clay pipe

which flowed in an easterly direction. The gap was located 0.6m from the start of the survey

(a map at Appendix 2 to the report shows the location of the CCTV survey). This was

consistent with the results of Amey's previous investigations in April 2012. The pipe was

severed on the motorway verge, close to the Lairs Farm boundary. The pipe was intact on

both sides of the void. The camera identified debris within the void at 0.8m from the start of

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the survey. The survey was abandoned at 1.60m from the start, due to debris in the pipe,

which had blocked 95% of the cross-sectional area. This debris appeared to consist of mud,

clay and rubble. Photographs of the void and debris can be seen in Appendix 2 to the

report. As a result of the investigations carried out, including the results of the CCTV

survey, Gaye McKay opined that there was a significant gap in the pipework and an

accumulation of debris, which had resulted in the pipe being unable to convey flows

towards the abandoned railway embankment, on the east side of the M74. Land drainage

from the Lairs Farm Field therefore no longer has a conveyance route to the downstream

watercourse, resulting in an accumulation of water at low points in the field. The backing

up of flows had led to insufficient flow velocities (often referred to as self-cleaning velocity)

in the land drainage network to transport sediment. Therefore, silt has accumulated over

time within the system, resulting in blockages and surcharging. Due to the remote location

of the problem within the motorway verge, where access was limited, and the nature of the

defect, it was likely to have resulted from works associated with the motorway.

[14] Having narrated the history of the drainage problem, I now turn to the issue of

whether the pursuer has a natural right of drainage from his land over the adjoining

property comprising the bounding section of the M74. On the evidence presented to me, I

am satisfied that the pursuer has proved that he has a natural right of drainage. I have

reached this decision for the following reasons. Firstly, alternative causes for the flooding

(ponding) have been excluded. SEPA flood risk maps show that the pursuer’s land does not

lie on a floodplain and there is no risk of fluvial flooding (paragraph 3.6.1.1. of Cadogan’s

report and evidence of Gaye McKay). A review of SEPA flood maps also confirms that the

area is not susceptible to groundwater flooding (paragraph 3.6.4.2 of Cadogan’s report and

evidence of Gaye McKay). There were no other known instances of sewer flooding in the

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vicinity, from foul or surface water sources (paragraph 3.6.3 of Cadogan’s report and

evidence of Gaye McKay). Secondly, the topography of the ground is consistent with the

natural right of drainage. The land drains under gravity towards the north east corner of the

field and the strip (also confirmed at paragraph 2.4 of the expert report for the defender

which is 7/5 of the inventory of productions). The pursuer, who had a detailed

understanding of the topography of the area, gave evidence to this effect which I accepted.

He explained that the outfall was the burn which was also the outfall for fields to the west of

the M74. He explained that the burn flows in a northerly direction between these two areas

of higher ground and in respect of the field the water passes beneath the M74 via a culvert.

The outfall is shown in photograph 3 at paragraph 3.2.1.5 page 7 of Cadogan’s report. The

field drainage is a gravity fed system and the pursuer’s evidence on the description of the

drainage system for the field, strip and the outfall is supported by the evidence of the

witness Gaye McKay. She confirmed that the pursuer’s evidence on drainage flow was

correct and the level in the north-east corner was 160.85m and the level at the outfall was

lower (158m). These relative heights are consistent with a gravity based field drainage

system and the relative locations of the pipe on the strip and the pipe at the outfall suggests

that they were originally part of the same drainage system. There was no evidence of

competing drainage systems. Thirdly, the dimensions and material of the field drain on the

motorway verge, which was subject to the CCTV survey, is consistent with the dimensions

and material of the pipe (fired clay) at the outfall flowing into the burn. Fourthly, the

pursuer and the witness, Gaye McKay both spoke in evidence to water travelling from the

manhole, installed by the council in 2009, in an easterly direction to the broken pipe, subject

to the CCTV survey. This indicates that water from the field drainage system travelled by

means of gravity to the field drain on the motorway verge. It could, of course, only reach

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the broken pipe by means of gravity if the pursuer’s field was higher than the M74 verge at

the point of the void in the pipe. In fact, the pursuer and all the expert witnesses, with the

exception of the witness, David Devine, accepted that the outfall for the pursuer’s field

drainage was the burn (shown at photograph 3 at paragraph 3.2.1.5 page 7 of Cadogan’s

report).

[15] David Devine is a chartered engineer who works for Transport Scotland. I have no

doubt that Mr Devine is an expert in his field, however he was wrong in his evidence in a

number of respects bearing on this issue. He suggested that the pipes in the different

locations were a different shape (outfall pipe at the burn in particular) and therefore not part

of the same drainage system. This was incorrect as was demonstrated to him in cross

examination. He was also unaware there were two pipes emerging onto the B7078 at the

north-east corner of the field and that it was the lower of these two pipes that could not be

connected into the drainage system for the B7078 road. He was also unaware that the pipe

had been located by Amey on the verge of the M74 in 2012 (6/8 of the inventory of

productions). He had assumed that no such pipe had been found, as was the case in 2011,

when Amey's investigations were undertaken in the wrong area. He did not have as

detailed a knowledge as the other expert witnesses and he was in error in these important

areas of his evidence. I therefore rejected his evidence on outfall and drainage system. I did,

however, accept his evidence on one important point, namely that the council should have

explored further whether the lower pipe could have been connected further north into

the B7078 drainage system by hand digging around the gas main. To connect the lower pipe

to the drainage system on the M74 verge without checking that it had an outfall would not

provide a solution (as it had no outfall) and only increase the frustrations of the pursuer.

The defenders during the Proof Before Answer attempted to lead evidence that the natural

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path of drainage was not as asserted by the pursuer. It was being suggested that the disused

railway line north of the pursuer’s field had altered the natural line of drainage and created

a barrier to the northward flow of the water. Objection was taken to this line of evidence as

it was not covered by the pleadings. In particular condescendence three asserts the

pursuer’s case on the natural line of drainage. It is as follows:

“The natural line of drainage for superfluous surface and ground water from the Field

follows the lie of the land and runs down through the Field's northeast corner. Said

line of drainage runs along a pipeline and terminates in a burn north of the village of

Blackwood. Said termination is east of the M74.”

The defenders answered (three) – “not known and not admitted”. No substantive case on

this point was pled. I heard some evidence on the point under reservation. This evidence

included the spot heights shown in the plans 7/1 and 7/2 of the inventory of productions, as

spoken to by the witness Gaye McKay, which were supportive of the pursuer’s case. The

pleadings govern the cases pled. As there were no pleadings covering the substantive case

sought to be led by the defenders of the altered natural line of drainage and barrier, this

evidence was inadmissible. Even if it was admissible it would not have altered my decision.

There was no evidence of substance, rather than speculation, that the two pipes integral to

the pursuer’s drainage system at the north of the pursuer’s field ran contrary to the natural

line of the flow of water from the field. There was no evidence as to when the railway was

built or discontinued, the pre and post railway topography, and the drainage situation of the

field before and after construction of the railway. The evidence and rationale supporting a

natural right of drainage as contended for by the pursuer, as detailed above, was powerful,

multi sourced, supported by the majority of expert and factual witnesses and the drainage

system pertaining to the area. The fact that both the council and the defenders spent time

and effort trying to investigate and sort the pursuer’s drainage problem was illuminative.

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Why would this have been done if no natural right of drainage existed? For the foregoing

reasons, I am satisfied that the pursuer has the natural right of drainage as contended for.

[16] The defenders argue that esto there is a natural right of drainage it should be

restricted to water from the strip. This is on the basis that the B7078 bisects the pursuer’s

field and strip and is a barrier both in terms of a being a physical barrier to the flow of

ground and surface water and in terms of land ownership and the local roads authority’s

responsibility for drainage in and around it. I reject this argument. Firstly, the strip drains

by means of gravity onto the M74 land and therefore there is a natural right of drainage.

This was not the subject of dispute and the defenders esto position recognises this. Secondly,

the field and strip are interlinked in their field drainage arrangements. Were it not for the

void in the field drain on the M74 verge, water draining from the field (which is not

connected to the B7078 drainage) would flow through field drainage on the strip and

the M74 before reaching the outfall at the burn. The said void prevents the water reaching

this destination. The pursuer and the witness, Gaye McKay, both gave evidence that water

travelled from the lower pipe in the manhole in the field, installed by the council in 2009, in

an easterly direction to the broken pipe. I accepted this evidence. It would in my opinion be

artificial to seek to distinguish between the field and the strip, both owned by the pursuer, in

respect of the natural right of drainage which the pursuer has and which he seeks to exercise

in respect of the lower of the two drainage pipes in the manhole in the north east corner of

his field which has been connected to the drainage system in the strip and M74. This does

not mean that the council does not have a duty to seek to remedy the drainage problem from

the pursuer’s field. This the council did when connecting the higher pipe into the B7078

drainage system. They were unable to connect the lower pipe into this system with the use

of a mechanical digger due to safety reasons. As a result, the lower drain was connected

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into the drainage system which served the field and the strip and which when flowing

towards the outfall at the burn goes through M74 land. The void in the drainage system is

located on M74 land.

[17] Given that the pursuer has a natural right of servitude, has that right been interfered

with? Firstly, a natural right of drainage is res merae facultatis. This is defined in Trayner’s

Latin Maxims (fourth edition) at page 554 as follows:

“A matter of mere power; a mere faculty. Such, for example, is the right which a

proprietor has of building upon his own property, or which any one has of walking

upon the sea shore, or sailing upon the sea, or on any navigable river. It is a right

which may or may not be exercised at the pleasure of him who holds it; and such

rights are never lost by their non exercise for any length of time, because it is of their

essential character that they may be used or exercised at any time.”

(see also Peart v Legge 2008 SC 93 per Lord McFadyen at paragraph 25). As a result a res

merae facultatis does not prescribe (schedule 3 to the Prescription and Limitation (Scotland)

Act 1973). The right can be exercised as and when the proprietor of the superior land

chooses to do so (Anderson v Robertson 1958 SC 367 per Lord Justice Clerk at pages 371

and 372 and Rankine on Landownership, (4th ed.) at page 426). Secondly, this is subject to the

court’s right to equitably regulate the matter where a proprietor of the superior land is

unduly pressing his right and making the situation intolerable to him (Erskine Institute II,

9.2. and Campbell v Bryson [1864] 3 M 254 per Lord Justice-Clerk (Inglis) at p 260). Thirdly,

no evidence was led as to when and how the drainage pipe on the M74 land came to be

damaged creating the void (and the silting). The fact that the problem first manifested itself

in 2009 does not mean that this was when the pipe was damaged creating the void. It is

perfectly possible that the damage could have been occasioned earlier causing a gradual

build-up of silt and debris which reached a point where flooding was caused in 2009. There

was no evidence of an event in 2009 which could explain the flooding from that date and I

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therefore have nothing which could support a date for the damage. As to cause, the witness

Crawford in his report at page 12, paragraph 5.9, (7/5 of the inventory of productions) raises

the possibility that the damage to the drain was caused by impact damage due to utility

works, lack of maintenance by the pursuer, lack of maintenance by the council, impact

damage caused by a new development, or road and footway widening works carried out by

or behalf of the council. However, there was no evidence to support any of these potential

causes and as the witness Crawford recognised in his report these can only be taken as

conjecture. What can be taken from the evidence, however, is that the field drainage,

including the section on the M74 verge, must have been in operation at the time of the

widening of the A74 and the creation of the section of the B7078 running through the

pursuer’s land. It had been used to drain the field in the past and the restitution of this

drainage system for the lower field drain is res merae facultatis. As the void which prevents

this drainage system from operating effectively is located on the verge of the M74, the

defenders are interfering with the pursuer’s natural right of drainage. This is an inevitable

finding from the location of the void.

[18] The final issue for me is to determine whether the pursuer is unduly pressing his

right, and making the situation intolerable to the defenders. I did not gain the impression

from the pursuer that he was being unreasonable in seeking to resolve the situation. He had

protracted and lengthy dealings with the council and Transport Scotland to resolve the

situation. This did not move quickly, which was not the pursuer’s fault as he sought to have

the matter resolved as quickly as possible, sending reminders, making phone calls and

engaging the services of experts to try and move the matter forward. I could sense his

frustration when he gave evidence, even though he came across to me as a reasonable, calm

and measured man. The work done by the council to install a new manhole and connect the

Page 25 ⇓

higher pipe into the drainage system for the B7078 did reduce the flooding, but did not

provide a cure. The council also tried to connect the lower pipe into the B7078 drainage

system, but this could not be done using a mechanical digger as it was deemed unsafe given

the presence of a gas main. It is not surprising therefore, that the council then connected the

lower pipe into the drainage system which runs to the verge of the M74 and beyond to the

outfall at the burn. This seems entirely reasonable in principle. However, this was done by

the council without checking that this drainage system was fully functional. This should

have been done but was not. The effect of this was to transfer the problem to another public

body without providing the solution sought by the pursuer. The pursuer wishes a solution

to his drainage problem. I am sure that he is not fixed on a particular solution. If it can be

achieved by connecting the lower pipe into the B7078 road drainage system, this would be

satisfactory to him. It is clear from the evidence that the possibility of such a connection was

not fully explored. Hand digging around the gas main was a viable alternative to

mechanical digging, which was deemed unsafe. As far as I am aware, on the evidence, this

was not explored fully nor was it considered too onerous. This was the opinion of the

witness Devine whose evidence on this point I accepted. It was clear on the evidence that

the B7078 drainage system is effective. After all, the higher of the two drains when

connected reduced the water logging in the north east of the pursuer’s field. The pursuer’s

field drainage had been connected to the B7078 drainage system, without problem, for a

period of time. It seems to me that, within reason, the connection of the lower (manhole)

drain to the B7078 drainage system, by hand digging around the gas main should be

explored. If that does not provide a solution then a connection into a fully functioning

drainage system, including the section in the verge of the M74, would be reasonable and the

pursuer would not be unduly pressing his right.

Page 26 ⇓

[19] For the foregoing reasons, I am persuaded that the declarators sought should be

granted. I shall put the case out by order for consideration of the precise terms of the

declarators, taking into account the requirement for a full exploration of the connection of

the lower drainage pipe into the B7078 drainage system, and for consideration of further

procedure. I shall reserve the question of expenses meantime.