By Preet Dhaliwal
Imagine this, you’ve just bought a new home located at the bottom of a hill and are excited to begin a new chapter of your life. Only, you realize that the natural slope of the land makes rainwater drain onto your property from those higher up on the hill.
Can you stop the water flowing onto your land?
According to the Court, you can only stop the water if it has no defined course. A defined watercourse is an English common law principle that is excluded from the category ‘surface water’ , which is defined as water of temporary and casual nature. Water that naturally flows from a higher elevation towards a drainage area at a lower elevation – thus not temporary - cannot be stopped.
This is explained in recent Supreme Court of Nova Scotia decision Clouter v Garrett. In that case, the Clouters lived in a property at the bottom of a hill, with the Garretts located beside them, higher up on the hill. Rainwater ran from the higher properties (including the Garretts’) down onto the Clouters’ property which was located right in front of the neighbourhood drainage area. As a result of the natural slope, the water moved across the Clouters’ property.
In an attempt to stop the water, the Clouters did multiple renovations. One of these included raising the culvert under their driveway to stop the flow of water. This created a small pond, flooding the upstream neighbours.
The Clouters sued the Garretts for the movement of water. They wanted to close the drainage ditch on their property completely and for the Garretts to direct the water into the roadside ditch. The Garretts disagreed, saying the proposed changes would negatively impact other neighbours.
The court categorized these sorts of claims under the law of nuisance, which has a two-part test. First, the effects of the water to the Clouters’ property must be substantial. If this is proven, then the effects also must be unreasonable.
Step 1: Substantial Effect
The first part of the test focuses on the severity of the effect of the water. It must be so substantial that it alters the nature of the Clouters’ property or interferes with it beyond being slightly annoying or trifling.
The court determined the water travelling across the Clouters’ property to extend beyond slightly annoying or trifling.
Step 2: Gravity of Harm vs Utility of Defendant’s Conduct
The second part of the test balances the gravity of the harm against the utility (or benefit) of the defendant’s conduct. Utility is considered through three factors: the character of the neighbourhood; the nature of the effect and whether the defendant’s underlying purpose is reasonable; and the way the defendant conducted themselves.
The drainage plan is a character of the neighbourhood. There was an intentional draining of water from higher elevation lots towards the drainage area. The court found that a lower landowner cannot complain of water that naturally flows to their land from a higher level.
A property owner can only attempt to stop the waterflow if it is surface water with no defined course. In this case, the water flowing to the Clouters’ property is natural with a defined course.
The court found that the Garretts did not act in a manner intended to harm the Clouters, but also that the Clouters’ actions were not meanspirited or spiteful. However, the Clouters’ proposed solutions would only create new problems for other neighbours.
The court concluded by noting that the Clouters did not meet the test for nuisance. The flow of water was natural, occurring before the properties were developed. The Clouters were ordered to lower the culvert they had filled, to allow the water to pass naturally.
This article is for information only and is not intended to be legal advice. If you have any questions or would like further information, you should consult a lawyer.
