Go with the flow
By Charl Theron and Kara Fischer
Since time immemorial, rainwater falls on land, flows downhill, and can cause trouble with neighbours. In Roman times, the rules were worked out as follows:
- – The owner of the higher land has a claim against the owner of the lower land if the latter prevented the water from flowing naturally from the higher to the lower ground.
- – The owner of the lower land has a claim against the owner of the higher land if the latter caused the water to flow onto the lower land otherwise than in its natural course.
The Roman rules were called the actio acquae pluviae arcendae, loosely translated to “a claim based on the exclusion (warding off) of rainwater”.
Pietermaritzburg and District Council for the Care of the Aged (PADCA) v Redlands Development Projects (Pty) Ltd and Others, a decision of the Supreme Court of Appeal in on 29 March 2018, dealt with such a matter.
PADCA was the owner of the lower land, and the 33 Redlands companies collectively owned the higher land (a private estate made up of freehold properties).
All was well whilst the higher land was not developed. But once it was developed, PADCA experienced regular floods.
PADCA accepted that it has a duty to accept the natural flow of storm water from the Redlands properties. However, PADCA argued that applied only to the quantity of water discharged from the Redlands properties in pristine state; and not as developed.
There was ostensibly some merit in PADCA’a argument: the Court held that “a person who undertakes construction work that causes water to flow elsewhere than its normal, natural course or to flow greater, faster or stronger than usual, will be liable if it causes damage unless [the exclusion from liability applies.]”
However, PADCA had the facts wrong. Redlands disposed of water through the municipal storm water system, in accordance with plans as approved by the municipality. This system also received water from various other properties in the area. The water was then released near to the PADCA property in terms of a servitude in favour of the municipality.
The Court further held that the exclusion from liability applies if the owner of the higher land had performed the construction work under a statutory or a common law right to do so, and takes reasonable care to ensure that no injury is caused to others.
The Redlands companies had performed the construction work under a statutory right to do so, and PADCA had failed to prove that the Redlands companies had not taken reasonable care.
PADCA lost, and will presumably require an engineering (as opposed to a legal) solution to the problem.