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The siege

“I’ve farmed this land my whole life. I won’t sell.”
“We’ll see about that, old man. We own the land all around yours. We control your water supply.”

A scene like this could have come from the trailer for a cowboy movie set during a ranch war, or perhaps for a film set in a future propertarian dystopia. I wouldn’t have guessed Cambridgeshire, 2022.

This series of tweets by the Fews Lane Consortium beginning with the words, “This is Clive’s farm. Clive has lived here his whole life” and later including the words,

To get rid of the groundwater that fills Clive’s well and that Clive uses to grow fruit, vegetables, and flowers, developers installed at least 800 underground well points and pumped the groundwater out of the ground near Clive’s farm.

describes a situation that reminds us that, although it is certainly true that the State is the prime oppressor, it is not the only oppressor. When I was first getting interested in libertarianism, I remember reading a lot about scenarios that were a challenge to it – e.g. where a property owner could inflict outrageous harm on another person without breaching the latter’s property rights – but as the years went by, the prime oppressor kept my outrage-tank filled and I’m afraid I largely stopped thinking about such things.

Perhaps I am off the hook. In the modern UK any question of land use inevitably involves the State, in the form of your friendly local council. This report from 2020 suggests that the developers might be hand in glove with the prime oppressor after all: “Cambridgeshire council ‘completely ignoring the law’ is taken to the High Court”:

The council [South Cambridgeshire District Council] is accused of having secret, unannounced meetings, from which no agenda or minutes are ever published, in violation of the Local Government Act 1972.

Another issue is that the council apparently announced a public consultation on a planning application, but then approved it anyway before the consultation had closed.

The council constitution is also allegedly being violated, but instead of rectifying the situation, the council has confirmed it intends to change the constitution, so it is no longer in violation of it.

and

The council has allegedly been acting in violation of this for at least two years by deciding whether to take the decision to the committee behind closed doors with just the chairman, vice-chairman, and a council officer in attendance.

The claims are being brought forward by the Fews Lane Consortium, a community group advocating for sustainable development around the villages, of which Mr Fulton is the director.

The decisions made by the council have had a damaging environmental impact too, according to the consortium.

I must also bear in mind that I have only heard one side of the story.

Nonetheless, I think that supporters of property rights should think about hard cases like Clive’s. What do you think about it?

47 comments to The siege

  • David

    You are not on your “Todd Malone” in the UK in regard to local government acting way outside its authority. It happens here in Oz as well.

    Local Shire/Town/City Councils are little cesspools of authoritarians looking for someone to monster.

  • bobby b

    I kept this Glenn Reynolds quote from some time back::

    “Here’s the problem with public officials . . . deciding to ignore the Constitution: If you’re the president, if you’re a member of Congress, if you are a TSA agent, the only reason why somebody should listen to what you say, instead of horsewhipping you out of town for your impertinence, is because you exercise power via the Constitution. If the Constitution doesn’t count, you don’t have any legitimate power. You’re a thief, a brigand, an officious busybody, somebody who should be tarred and feathered and run out of town on a rail for trying to exercise power you don’t possess. So if we’re going to start ignoring the Constitution, I’m fine with that. The first part I’m going to start ignoring is the part that says, I have to do whatever they say.”

    We empower government officials – we give them authority over us and our property – in exchange for certain promises and accepted limitations on their parts.

    Yes, this quote speaks to the US Constitutional empowerments, but I think the principle still applies. I would say these officials have lost their legitimacy, and deserve . . . something . . . far beyond tar and feathers. (Assuming, as you note, that there isn’t a reasonable explanation.)

    And, yes, I recognize that, here in the US, the poor guy would have simply lost his property to eminent domain. The Kelo legal decision lets developers steal in the name of the state. But we’ll work on that while you handle this. I see from the comments that you have your fair share of looters who are enraged that Clive would think his own ownership should stand in the way of other non-owners’ interests, just like we have here. “Stakeholders”, I suppose. Perhaps we can work together and ship them all to Somalia.

  • An English lawyer can perhaps comment on any relevant analogies there may be in the laws about ‘ancient lights’. Through a piece of the space-time continuum that I undoubtedly do not own, light has of old fallen onto my property in a pleasing way (maybe also a profitable way, as regards things growing in my garden). Now a property developer builds something on adjacent land they own – or maybe a fellow gardener lets a tree grow tall on land they own – and my ancient lights are threatened. The threatened loss of ‘ancient water’ might have analogies – or indeed be a known branch of English law. (In my experience Scottish law generally underperforms English, but there can be exceptions – I’ll ask a Scottish lawyer when I next have opportunity.)

    More generally, there is a discussion in Milton Friedman (‘Free to Choose’) of how balloons and aircraft raised the issue of ‘how far up into the air do my property rights extend’. Elsewhere, he discusses the difficulties of property rights in relation to pollution, at state solutions and at possible market-oriented solutions, concluding that the market might outperform the state even in this area where Milton acknowledged its imperfections.

  • Patrick Crozier

    In this particular case I am a little surprised there isn’t an existing, ancient, legal remedy. Not that that is a libertarian solution.

    In the days of Transport Blog I once mused on what would happen if you were running a bus service and the owner of the road forbade the erection of bus stops. (I was assuming the road included the footpath.)

    The answer, of course, was that the bus company would be stuffed. The only real solution was for the road owner to also own the bus service. But seeing as most road owners are government institutions this did not bode well.

    This led me to another thought: the owner of the road has extraordinary powers. You only have to imagine what would happen if the road owner denied you the use of his road to see what they are. In fact these powers are equivalent to those of a state and so – it seemed to me – the owner of the road will, in time, become the state.

    The only libertarian answer to problems like this is to ensure that access rights – whether they be to road, water, sunlight, or inspiring vista – are agreed to in advance.

  • Ian

    Very much not a lawyer, but I know that for waterways, “riparian rights” are a well-established body of law, and surely similar principles ought to apply under common law for groundwater: it being similarly “affected with the publick interest”. I think the claim would have to be against the council for granting an extraction licence that effectively denied the farmer his usufructuary rights. Richard A. Epstein wrote about these sorts of things extensively in Principles for a Free Society, although it doesn’t seem groundwater was an issue back in Sir Matthew Hale’s day.

  • Ian

    P.S. Of course all that could have been overriden by statute. Not actually suggesting you would really start with some kind of ancient common law claim.

  • Mary Contrary

    I think Ian is on the right track. Except that in this case, it seems quite plausible that the Council never granted water extraction rights to the developer. Which means they would be relying on common law (or other, general legal) rights to extract the water, which in turn greatly increases their risk that those rights are bounded in some way that they have breached.

    Whether the breach consists of acting unreasonably, acting maliciously, attempting to destroy the shared use of the shared resource, or simply taking more than enough to water their own land – all of that could be explored as possibilities by Clive’s lawyers. Indeed, to have extracted that much water they’d almost certainly have had to remove it from their land, rather than consume it there – and that is probably a quite separate right, which they likely don’t have.

    But of course, enforcing any of this is difficult, expensive and slow at the best of times, and doubly so if the Council is lined up against you.

  • Nicholas (Unlicensed Joker) Gray

    Bobby b., why do you hate Somalia?

  • NickM

    Somalia is an epic shithole?

  • Ferox

    A similar situation occurs sometimes in Montana, when the operations of a local mine contaminate the groundwater. I am not sure what happens in that situation but I think there is existing law (and/or legal precedent) to cover it.

  • Ian

    @Mary Contrary,

    Yes, it seems quite possible the council were acting without any kind of authority granted by statute or existing in common law, and simply imagined that their powers in respect of the Town & Country Planning Act and later statutes gave them authority to do this. In which case, they’re just acting ultra vires. At least, it seems difficult to imagine that it should be possible for a council to do this. This isn’t California, after all!

    Additionally, if they were holding illicit and/or “secret” meetings (without taking minutes, etc.) but claiming to act as the council, then it’s possible they weren’t acting as the council as such, but rather as individuals, who could then potentially be held to be personally liable for any loss.

  • Ian

    P.S. “Malfeasance in office” is another aspect. Not sure how many such prosecutions of that sort actually happen (maybe zero?), but it’s a possibility.

  • A lowly, lowly cook

    Not sure I follow this conversation. I’m first surprised that English law would have anything to say about water rights. When would such a situation arise? When your neighbor pumps
    unwanted water onto your property? Then Niall claims that English law covers sunlight. Perhaps this is some holdover from Roman law.

    In all seriousness, I’d imagine any developers that tried this in the U.S. would be sued into oblivion on environmental grounds and in drier climates water rights would be well established.
    No pun intended.

  • bobby b

    Set aside the question of technical riparian rights. Here, a large corporation is trying to pressure an individual to sell his land to it. One of their tools is to pump all of the water from the local aquifer. They don’t appear to have a need for this water, so it seems clear that they do so only to deprive him of that water.

    The local government appears to favor coercing the owner into selling, and so have bent their efforts in one direction.

    Is this acceptable behavior, on the parts of either the corporation or the government?

    Even lacking some statutory reason to prohibit such behavior, can’t we condemn it as being wrong? And, when a government participates in wrongness, doesn’t it lose legitimacy just as it would if it violated black-letter law?

    “Legal but evil” is no way to go through life in government.

  • Fraser Orr

    I was reminded of a conversation I had with an old coot friend of mine. He lived in Mississippi and loved to hunt (but I repeat myself) and owned a large plot of land. I was discussing hunting licensing with him and I asked him why he needed a hunting license to shoot animals on his own land. He pointed out that although the land was his the animals were not.

    This seems to be pertinent here too. Certainly the big-bad-developer might own the surrounding land but they do not own all the water in the aquifer. INAL but as far as I understand there is a substantial body of law, mostly common law, the defines what are acceptable uses of the aquifer, and if they are in violation of that then that would seem to be the way forward. (Of course if Clive had been taking more out of the aquifer than he had rights to, he has no right to complain.)

    Of course there is a problem here which is that the legal system is largely unaccessible to the regular joe because it is sclerotic and vastly more expensive than he can afford. You can’t beat city hall and you probably can’t beat “Dewy, Cheatum and How Corp.” with their army of lawyers. I’m not sure what the answer to that is.

    However, there is a broader answer I think the Natalie’s broader question. Many of these situations arise because companies are very large. But large companies are largely an artifact of large government. When a company grows large the complexity of the company grows exponentially and the incentives for productivity for individuals within the firm become more and more dissolved. This is offset to some degree by economies of scale, but they do tend to grow linearly. However, large companies can use the power of government to shore up their crumbling walls through regulation, rent seeking, patents, lobbying, licensure and many other tools that are designed to protect the powerful from the uppity start up.

    So in a sense the problem of large powerful companies is more a consequence of government giganticism rather than an separate problem. Of course I am greatly generalizing here, some companies do need to be large to accumulate enough capital to, for example, build a chip fab or explore for oil. And there is a whole other interesting case of how AI and data mining have transformed companies like FAANG to allow them to be vastly more nimble than pre AI big corporations. But that is a comment for another day.

    However, I think as a libertarian I am opposed to big government and big companies, because in large part they are part of the same cancer. The solution to big government is federalism, and the solution to big companies plays in the same arena.

  • bobby b

    “Fraser Orr
    July 3, 2022 at 4:26 am

    The solution to big government is federalism . . . “

    Oh, good. I’ve been looking for a way to shoehorn in an otherwise OT threadreader page link that gives a very nice ode to federalism. Thought it was worthwhile for people who might not otherwise appreciate it.

    https://threadreaderapp.com/thread/1542852082499190784.html

  • Paul Marks

    The key words for members of Planning Committees are “material planning consideration” – and I do not see those words anywhere in the post. Without material planning considerations against it an application by a developer will be approved – that is Planning Law. Any council that turned it down would find themselves turned down on appeal to the Central Government Planning Inspectorate, have costs awarded against them, and might have various other nasty things done to them as well. “But the people do not want it…..” not relevant in Planning Law.

    Rights to light, air and water are matters for the Civil Law – not, generally speaking (there are some exceptions), for Planning Committees. “The Developer has cut off my water supply” – sue him. “But the developer is backed by the Credit Bubble banks, which are (in turn) backed by the government – they have vastly more resources for lawyers and so on, than I do” – welcome to 2022, things were different before (say) the Wensleydale Judgement (which M.J. Oakeshott so hated) which declared that the “public interest” in “great undertakings” overturned private property rights in clear air and water supplies – but there we are. There are modern regulations you can use to try and get back to something like Common Law rights over clean air and water supplies – but it will cost you (in money and TIME), and officials may not be as helpful as they might be (it depends on various things).

    As for some development, created by the “Grab It, Grab It, And Run” (except they do not have to run anymore) – Corporation (backed by the Credit Bubble banks – which are, in turn, backed by the funny money of the government), yes the roads and pavements (sidewalks) may be one molecule thick (they will have to be “adopted” by the taxpayers and rebuilt at great expense), and the drainage will be awful (it will flood – of course building on farm land increases the risk of flooding, but the corporations and the government will blame “Climate Change”), and the buildings themselves… (well perhaps best not dwell on the thought of them) .. it is possible to set conditions before planning consent is granted, then it is a matter for planning enforcement. However, a lot of things are covered by “Building Regulations” rather than “Planning Law” and are, thus, outside the authority of Planning Committees.

    Was the United Kingdom better off before the passing of the Town and Country Planning Act in the late 1940s – well look at British towns and cities before the passing of the Act, and compare them with the planned places they are now (and decide for yourself).

    As for the United States – well Houston still does not have “Planning” (what the Americans call Zoning), it still has dreadful problems, but perhaps it is less bad than cities that do have “zoning”.

    As for what will happen when the farm land of England (which already can not feed itself – indeed we have about twice the population we can feed, and inward migration continues) is covered in housing estates and “sheds” (warehouses for imported goods – bought with “IOUs”) – well it is best not to dwell on such things.

    And remember Americans – the Biden Administration is working hard every day to undermine (destroy) American farming and manufacturing, whilst (at the same time) promoting as much inward migration as possible (only last week the Supreme Court ruled, 5 to 4, that the Administration could ignore the Immigration and Nationality Act and just release “asylum claimants” into the United States (rather than detain them or send them back to Mexico) – so every migrant will now be an “asylum claimant” (or some such – it does not really matter as the regime in Washington D.C. has no intention of defending the borders or sending back most migrants) and they will live at the expense of the taxpayers, efforts such as Proposition 187 in California to restrict benefits and services to American citizens (or at least legal residents) were stuck down (by the courts) many years ago.

    “How will it end” – everyone (apart from the morons at the Economist magazine and a few others who think that creating money, from nothing, and using it to provide government benefits and services for unlimited millions of migrants will work – the same cretins think that modern Wall Street is “capitalism” rather than what it actually is – a lot of Corporate welfare claimants in thousand Dollar suits) knows how it will end, economic collapse and social (societal) collapse – but it is best not to think about it too much, otherwise one starts screaming.

  • Stuart Noyes

    “The state is the prime oppressor”

    Sometimes it takes words to wake us up.

  • Mr Ed

    Niall K

    An English lawyer can perhaps comment on any relevant analogies there may be in the laws about ‘ancient lights’.

    From my days at law school long ago:

    English land law has the concept of an ‘easement’, a right attaining to a piece of land over other (usually neighbouring) lands. English law presumes that if you own a field, called ‘Whiteacre’ for ease, and you sell an interior portion of it to Y, then as the purchaser Y acquires an ‘easement’ of access i.e. the right to cross your land ‘Whiteacre’ to get to Y’s parcel. Such a right is implied in the conveyance (transfer) of the land, the exact mechanism is more easily agreed (e.g. entrance from and passage over Whiteacre to Y’s parcel from the western gate of Whiteacre. Similarly, a utility company may have a ‘wayleave’ an ‘easement’ granting a right to install and maintain utilities (pipes, cables etc.) to Y’s parcel across Whiteacre. It is possible to expressly exclude these rights from a sale but no lawyer worth their salt advising Y would not point out the problems. The right to ‘ancient lights’ is in fact an ‘easement’ allowing a property owner who has enjoyed light through a window for 20 years or more to prevent that right from being infringed, by the owner of neighbouring land obstructing the light. There are all sorts of tricks here, such as if a neighbour builds and extension with a window, that window starts to chug towards 20 years ‘right to light’ if you do nothing: but you can register a ‘notional hording‘ on your land to prevent a neighbour’s window gaining a right to light.

    The rights in this case appear to me to be an easement implied if not express granting the right to access to water to the ‘besieged’ from the neighbouring land, so drilling down and interfering with that right may be unlawful interference with the easement, giving rise to a claim for damages and/or an injunction to restore the status quo and prevent future abuse, and costs if it gets that far.

    So from the OP:

    We’ll see about that, old man. We own the land all around yours. We control your water supply.

    The answer may well be: “You are correct, in that you own the land, and control the water supply, but your control of the water supply is subject to an easement of supply of water. Interfere with that at your peril.“.

    And in the criminal law, perhaps, if the elements were established, some form of conspiracy to defraud by depriving the besieged of his rights?

  • Thanks, Mr Ed (July 3, 2022 at 12:33 pm), that provides the legal detail I wanted.

  • Patrick Crozier

    I don’t think that’s how you spell “siege”.

  • pete

    I’m happy that ‘in the modern UK any question of land use inevitably involves the State’.

    That private individuals or corporations should be able to use land as they like is a frightening prospect.

    I’m sure many libertarians wouldn’t like it

  • Snorri Godhi

    although it is certainly true that the State is the prime oppressor, it is not the only oppressor.

    A case in point, via Instapundit.

  • mickc

    I agree with Mr Ed. Clive almost certainly has a legal easement for the running and supply of groundwater to his land, particularly so as he has used it for many years.
    I think he would be entitled to immediate injuctive relief from the Courts until he was able to prove such rights at a hearing.

  • bobby b

    Sadly, his entire farm will be dead before the first hearing.

    (At least if your civil/property courts are as quick as ours in the US.)

    (I’d hate to be the planner for that corp who now needs to explain why he committed so much of the company money to land without first nailing down that guy in the middle. Chances are good that corp will prevail, but corps aren’t fond of throwing dice, even loaded dice. Should have been handled. Guy in the middle right now has price leverage.)

    ETA: Some company that wants some consumer goodwill should spend $200 a week and send him some tanker-truck water. It’s cheap.

  • Fraser Orr

    @pete
    I’m happy that ‘in the modern UK any question of land use inevitably involves the State’.

    I actually agree with you on this Pete. Registering the rights to property is one of the few functions a state should perform. The problem arises when it goes beyond the simple act of registering the various rights people have to property to a capricious sitatuion where they make it up as the go along, or worse still, change the rules after they have been set. Civil, successful society depends on stable law enforced rigorously, without bias and in an efficient manner.

    @bobby b
    Some company that wants some consumer goodwill should spend $200 a week and send him some tanker-truck water. It’s cheap.

    I love this comment Bobby. Why get the government involved when a private alternative is available. As I have said before, it is Fraser’s Rule of Government: “When a democrat sees a problem he creates a new regulation, when a republican sees a problem he creates a tax break, when a libertarian sees a problem he quits politics and creates a business to solve it.”

  • Ferox

    According to Wikipedia, in the US water rights are geographically split into two separate sections: in the east, where water tends to be relatively plentiful, the Riparian Rights model is used.

    In the arid west, they use a model called Prior Appropriation.

    Interesting stuff. I assume that under either of these models, Clive would have recourse to legal action against the developer who was depriving him of his rights.

    And if the State ain’t useful for this, what in the hell is it good for?

  • Mca

    I’ve spend a good chunk of my life dealing with local land use officials. Here’s my takeaway: They actually don’t know what the law is. They really don’t want to find out either. What they want is to “do the right thing .” It turns out the “right thing” is what they think at the time. The only defense is to fight them always and everywhere about everything.

  • mickc

    bobby b
    Injunctions are quick, or certainly used to be. It is the final hearing which may take time.
    We are talking about a person’s livelihood…judges take such things seriously, but I haven’t done litigation for many years so the quality of the judges may well have declined.

  • Max Damage

    So the developers installed 800 wells… Let’s say the cost to dig a well another 500′ and install a pump suitable for the task is ten thousand quid. By my estimation, it would cost the developers 8 million pounds to keep up. Ten thousand is coffee-can-at-the-pub money, something that can be raised quickly with very nominal donations from others similarly outraged at developers and their control of the council. 8 million? Yeah, that’s gonna be a little harder to come by.

  • bobby b

    Nicholas (Unlicensed Joker) Gray
    July 2, 2022 at 11:44 am

    “Bobby b., why do you hate Somalia?”

    No, no, you misunderstand! I think that the warlords will react favorably to the kinds of pressures and positions that the “we all deserve everything of yours more than you do” bunch will bring to bear upon them. I argue for the sake of Somalia!

    Or at least it’ll be fun to watch.

  • Bruce

    @Ferox:

    “A similar situation occurs sometimes in Montana, when the operations of a local mine contaminate the groundwater.”

    “Shoot, Shovel and Shut up”?

  • Paul Marks

    Niall – as I said, if someone cuts off your water supply (or contaminates it) sue them. It is nothing to do with the Planning Committee. It is a matter for the courts.

  • Natalie Solent (Essex)

    Patrick Crozier writes, I don’t think that’s how you spell “siege”.

    I’ll have you know that it is an Old French variant, related to Seigneur, a feudal lord. That spelling is particularly appropriate given that this topic is related to feudal land and water rights.

    However I have changed it to the more common spelling to appease the multitude.

    (My ability to improvise les conneries awes even me sometimes.)

  • Michael Taylor

    Frankly, the water companies, and the ‘regulators’ who have let them run riot, have been breaking the law for years now. Casually, repeatedly, and without the proper judicial punishment. We need to see them arrested, charged and brought to trial. https://mjtcoldwater.substack.com/p/crimes-of-indifference

  • @Ferox:

    And if the State ain’t useful for this, what in the hell is it good for?

    Absolutely nothing, say it again.

  • ontoiran

    the downfall of western civilization began with the outlawing of the duel. i think if these “city councilors” knew they might have to defend their actions with their lives, they might be a little more circumspect

  • rold

    “I was discussing hunting licensing with him and I asked him why he needed a hunting license to shoot animals on his own land. He pointed out that although the land was his the animals were not.”

    Living in , I can’t imagine any of the rural people around here worrying about getting/having a license for shooting animals on their own land. Licenses are for if you’re going hunting in the national forests during hunting season. When the damn deer are stopping by the vegetable patch and nibbling the sweet potatoes, you BLAM BLAM and have yourself some venison, and nobody says a thing about it. Or squirrels, or rabbits, or groundhogs – shoot as many of those things as you like. Bear might be a case where the forest rangers might get involved, just because they’re apex enough and rare enough that uncontrolled massacres could cause an issue – but bears tend to be leery enough to mostly not put themselves at risk.

    I have seen one (1) newspaper article about a bunch of dead coyotes stapled up on a fence somewhere, and a local law enforcer type being interviewed about it hemming and hawing about how yeah it wasn’t legal and “people need to be educated”, but there was zero implication of any consequences actually happening.

    This is Appalachia; a friend of mine from the northern Great Plains told me how he and his dad would hunt deer. Driving along in a pickup truck – hey! A deer! Stop, roll down the window, BLAM! Licenses? Huh?

    Tennessee might be a place where you’d have trouble, but their hunting-enforcement agency is orders of magnitude more intrusive than it has any right to be, and I believe it’s being rolled back by certain court cases.

  • […] Related. “This is Clive’s farm. Clive has lived here his whole life” […]

  • Ian

    @Mr. Ed,

    Are you sure that this really would be considered an easement? After all, this is groundwater and not what we call a “service” such as mains water, sewage, electricity or a right of access, etc. The water exists under both properties and is thus held in common, rather than being something that one party could grant (via a positive covenant) to another. To give an example, I happen to own a property which is a freehold island in a large estate, but I have a right (which is now in statute, but which would also exist in common law I believe) to drill a borehole where none previously existed without establishing some kind of easement. There is simply no way the surrounding freehold affects my land in that way, any more than the land beyond my neighbour would need to provide an easement to me (despite it all being arguably the same groundwater) — that would end with everyone having to give everyone else an easement to drill a well. And in the case of several different freeholds around me it couldn’t possibly be the case that there would be a need to establish an easement from each individual landowner. I think riparian rights and related common law is the right way of looking at it.

  • webley silvernail

    Here in Canada I know of a case where a gold mining company sank a new shaft that lowered the water table beneath nearby farms such that their wells went dry, and the mining company had to provide pumped water from a nearby lake to those farms. Although, unlike in poor Clive’s case, neither political action nor litigation was required for the remedy to be applied, as the company did it willingly.

  • Mr Ed

    @Ian

    Thanks for raising that. I think that the answer is that an easement is seen as a right of the ‘dominant’ tenement (i.e. piece of land) over the servient tenement(s), and is not so much a right to an amount of water, but the right to receive water that in the normal course of events flows from that servient land to the dominant land, just as the ‘right to light’ is the right to receive light that is passing over the neighbour land, rather than a right to a period of illumination at a certain brightness.

    So in a drought, there is no right to any water from the neighbouring land if there is no groundwater flowing out, but there is the right to receive the flow of that which comes naturally. Just as a right to receive light means that the servient landowner cannot obstruct the ‘flow’ (or rather passage of light) from his land to the landowner with the easement of (a right to) light.

    So Clive has no right to, say, 1/100th acre-foot of water per annum, but if the natural flow would otherwise be that amount, any use of the servient land to reduce that would be an unlawful interference.

    The Common Law (with Equity) got there before politicians, who have already passed laws to tinker with both.

  • bobby b

    ” . . . easement is seen as a right of the ‘dominant’ tenement (i.e. piece of land) over the servient tenement(s) . . . “

    I’ve met a couple of guys whose entire practices (pre-retirement) revolved around water rights fights out here in the US West and Midwest, and they talked like that all day long, every day.

    They’re not very fun at parties, even yet.

    😉

  • Patrick Crozier

    I too am awed by Natalie’s ability to improvise. I stand – in the corner, facing the wall – corrected.

  • Tim C

    Thanks to Mr Ed for his awesome detailed post.

    I would suspect that this article is not news to anyone who has had to deal with a council and developers. Whilst fighting a development next to my house that was in clear breach of local guidance and conservation area rules, it became clear to residents of the area that there was a massive elephant in the room. And that was despite all of the clear breaches of the council’s own detailed rules about size, position, looks etc the development was passed anyway. No matter what logical action residents took using the council’s own rules the council always sided with the developer. Not that there were any meetings that we were aware of between the council and developer that would explain this. It was bizarre and made no sense unless you understand that brown paper envelope diplomacy (as I call it) was running the show. Then it all made a lot of sense.

  • The Jannie

    “Another issue is that the council apparently announced a public consultation on a planning application, but then approved it anyway before the consultation had closed.”
    In my experience this is standard council working practice..

  • Ian

    @Mr Ed,

    I know this is probably quite an esoteric point, but I maintain there is a difference here, in that this is not a matter of easements but rather a kind of underground riparian right.

    With riparian rights, as the river water flows along from one property to the next, no property on that route at any point gains any right to prevent the flow. There is never a question of the existence or otherwise of any easement.

    Riparian rights come with the land (or “run with the reversion”), cannot be alienated from that land and do not depend on any covenant, grant or licence made or not made by any other party, including neighbouring land. There is no dominant or subservient tenement. It would quickly become extremely complicated if there were, since a river hundreds of miles long would generate an equally long chain of easements that would have to be checked on each conveyance.

    Also, and without wishing to get into the fluid dynamics of aquifers (about which I know nothing except through a geography lesson dimly), it probably isn’t accurate to say in this case that the water flows from one parcel of land to another, as water in an underground pipe (which would require an easement). It’s much more complicated than that, and (e.g.) into each piece of land a little rain must fall.

    The end result is much the same: it really just comes down to what is “reasonable” use.

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