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12th February 2021

A permit is not always enough.

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The case of Bernel Ltd v Canal and River Trust [2021] EWHC 16 (Ch) demonstrates that obtaining a discharge permit may not negate the need to get other consents.

The claimant purchased a large site with a single dwelling. Redevelopment was to consist of nine dwellings over a much wider area of the site but connection to a public sewer was not possible. The claimant was granted a permit in 2017 from the Environmental Agency (EA) to discharge secondary treated sewage and surface water into an existing underground pipe. The pipe discharged onto the defendant’s land.

The claimant asserted that they had riparian rights to discharge onto the defendant’s land without obtaining permission as the pipe was a culverted natural waterway. This argument was scuttled by the lack of evidence of a historical natural waterway in the same location. The court did however confirm that if it had been a culverted natural waterway the proposed discharges would have been within the acceptable rights of a riparian owner.

The claimant’s alternative claim was that a prescriptive easement had arisen giving them the right to continue discharging to the defendant’s land. However, the claimant was unable to show the relevant use over the previous 20 years. In addition, whilst the intensification of discharge from the existing development may have been acceptable, the expansion of the site would not be consistent with a prescriptive easement.

The EA permit only indicated acceptable environmental protection and it did not impinge on the legal rights of the defendant (or others). Therefore, since the pipe was not a culverted natural waterway and there was no prescriptive easement the claimant also needed consent from the defendant for the discharge.

To discuss your potential development and the consents and permits that may be needed please contact Karen Luxton-Walsh on 01223 461155 or click here to email Karen.