Q: Our neighbours live below us on a slope and rainwater from our garden paving drains onto their land. They claim that the increased rainfall patterns over the past two years have flooded their land and that we are responsible for rectifying the situation. They have suggested that we either install a rainwater collection system under our garden or that we pay towards the redirection of the gutters on their land. Are we responsible, or are they just unlucky to live at the bottom of a hill?

A: If someone wants to complain about flooding caused by a neighbour, they can do so on the legal grounds that the water is a nuisance, that the neighbour has acted negligently, or that the flooding is caught by the special legal rules derived from the leading Victorian court case of Rylands v Fletcher.

Whether there is any liability for water that flows down a hill depends on whether it is caused naturally. If the source is naturally occurring rainwater, the owners of land at the bottom cannot complain if it simply flows downhill or percolates from a higher level. If the water has an artificial cause (such as a factory discharge) the owners of the land at the top of the hill would be liable if they could have reasonably foreseen that a flood might occur. Equally, a badly designed drainage system that caused flooding could result in the owner of the land at the top of the hill being held negligent. In your case, it does not sound as if you have done anything wrong at all, and you are certainly not responsible for the rain.

Having said that, your neighbours do have remedies. Just as you can allow rainwater to drain on to their land without asking permission, equally they can stop it doing so without needing to obtain your permission. Your neighbours have the right to put up barriers or dams even if that causes the rainwater to back up on to your land. This right arises only to the extent that it is necessary to protect their land: it is not a general licence for them to dam up rainwater deliberately to flood your land out of malice.

You therefore do not have to install the rainwater collection system, nor do you have to pay anything for the redirection of the gutters on your neighbours' land.

The writer is a barrister at Tanfield Chambers. E-mail your questions to: brief.encounter@thetimes.co.uk

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