With all the rain that has fallen across the country recently, it is not surprising to hear from a reader who complains about the manner in which his neighbour diverts stormwater runoff.
He writes that his neighbour has made numerous holes in their shared boundary wall, diverting stormwater to the reader’s side. The problem is exacerbated by the fact that the properties are on an incline, with the reader’s erf being the lower of the two.
The reader would like to know whether this practice is allowed and, if so, whether it is permissible for his neighbour to deface the wall in this way.
Charlotte Vermaak from Chas Everitt in Port Elizabeth says a general rule derived from common law is applicable in this situation. “The owner of a low-lying property is obliged to receive naturally flowing water from a higher property.”
However, says Vermaak, this rule does not give owners of higher-lying properties blanket consent to flood their neighbours’ gardens. “The crux of the matter lies in the term ‘naturally flowing’.”
Vermaak says a 1998 ruling by the Supreme Court of Appeal in the matter of Williams versus Harris provides further clarification.
“It was decided that the owner of a lower-lying property is only obliged to accept ‘natural flow’, in other words, that which would have occurred before the properties were developed.”
This decision places an obligation on the owner wishing to divert the stormwater to show that it would have flowed onto the lower property even if there were no buildings and the ground contours had not been altered, says Vermaak.
“This is clearly a substantial onus and may call for expert assistance.”
According to Rian du Toit from DTS Attorneys in PE, the reader’s neighbour could be obliged to attempt to divert the water elsewhere, such as into the street.
“This obligation may be imposed by the relevant provisions of the town planning scheme that applies in their area.”
Du Toit says a reasonable onus is therefore placed on the offending neighbour to prove that it is not practically possible to divert the water away from other properties and into a public street, presumably with drainage.
“Overall, it is very clear that our reader does not simply have to tolerate the situation his neighbour has created.”
He may choose to call out the relevant municipal authority to inspect the situation and determine whether his neighbour is complying with local by-laws relating to stormwater, says Du Toit.
“Alternatively, if there are other viable routes for diverting the runoff and his neighbour continues to disregard these, he could elect to take legal action.”
