Neighbour law liability: Stormwater and eavesdrip

Actio aquae pluviae arcendae – interdict – stormwater from higher property discharging into municipal stormwater drainage system – combined with water from road and other properties – increasing flow in watercourse on lower property – discharging in accordance with approved plans – discharge lawful – alternative claim based on neighbour law unjustified.

Wallis JA (concurring)

Note: Footnotes omitted

[28] I have read the judgment of Pillay AJA and agree with her that this appeal should be dismissed for the simple reason that, whether PADCA’s case is expressed as lying under the Roman Law actio aquae pluviae arcendae, or under the more modern aspect of our law of delict characterised as neighbour law, it must fail for the same reason.

The reason is that the collection and discharge of water from the Redlands estate into the municipal storm water system, from whence it discharges into the stormwater canal across PADCA’s property, Woodgrove, was required by the terms upon which the construction of the Redlands development was approved by the Umsunduzi Municipality.

In those circumstances it is not open to PADCA to select one of the many sources from which that stormwater derives and demand that it attenuate the water emanating from its property, in order to relieve PADCA of the consequences of the municipality being entitled to discharge stormwater across Woodgrove.

[29] In view of that simple approach it is unnecessary to formulate and express final views on several issues that arise from the manner in which PADCA has formulated its case. However, I think it desirable, lest there be any misunderstanding, to highlight certain matters not dealt with in my colleague’s judgment.

[30] Two of those issues arise in relation to the availability of the actio aquae pluviae arcendae in our modern law.

Firstly, like Hurt AJA in Pappalardo v Hau, I have considerable doubts as to its availability in relation to damage to urban, as opposed to rural, properties. In addition to the Roman Dutch authorities to which he referred, my reading of the relevant passages in the Digest suggests that it is a remedy that is available to the owners of rural properties.

Thus for example in D 39.3.17 it is said that:

‘Again it must be understood that this action is not available except when it is a field that is damaged by rainwater. When it is a building or a town that is damaged, this action is not valid, but an action can be brought to deny the right of eavesdrip or the flow of water onto one’s property.’

Further in D 39.3.19 it is said:

‘Cassius also writes that if water deriving from a town building damages either a field or a rural building, it is an action on a flow of water and eavesdrip that should be brought.’

[31] That passage is explicit in saying that the remedy available in relation to urban properties is not the actio aquae pluviae arcendae. There is academic writing that supports this conclusion, as well as Roman Dutch authority. Voet 39.3.4 says:

‘Action does not cover urban tenement.

The action falls away furthermore if water is hurtful not to a rural but to an urban tenement, whether it flows down from an urban or a rural tenement, inasmuch as in that case suit would rather have to be brought by the action for denying a liability to receive drippings or a stream of rain water.’

[32] If the distinction between urban and rural tenements is still part of our law it raises the question of what is an urban and what is a rural property. That cannot be answered solely by reference to municipal demarcation in an environment very different from that in which the actio evolved.

Beyond saying that rural properties would not be confined to those in a local authority area, and that the type of urban environment where Redlands and Woodgrove are situated would probably not be regarded as rural for the purposes of the actio, it is undesirable to essay any definition. All of these questions remain open and nothing in my colleague’s judgment lends support to the notion that the actio is available in an urban environment or that, if under Roman and Roman Dutch law it was not, we should develop the common law to make it available.

[33] The second issue is the one on which PADCA’s case was dismissed in the high court, namely, the perceived need for contiguity between the higher and lower properties. This was not fully argued but counsel’s attention was drawn to the decision of this Court in Cape Town Council v Benning, where Solomon JA gave a full exposition of the actio, without suggesting that contiguity was a necessary element thereof. There are two passages in the Digest that suggest that contiguity may not be essential in all instances, although the majority of texts are formulated in terms that deal with contiguous properties.

If contiguity is not essential, there is the difficult question of deciding when two properties are too remote from one another for any obligation to rest on the upper property to safeguard against increasing the discharge of water onto the lower property, especially if that discharge occurs through the municipal storm water system. Counsel was unable to suggest a solution when this problem was posed and we need not determine it. The problem disappears if contiguity is required. As matters stand it cannot be said with confidence that contiguity is not a requirement or, if it is not, what the relevant requirement of proximity would be. That must await determination on another occasion.

[34] Turning to the claim based on neighbour law this was not fully developed during the trial, perhaps because in opening the case counsel for PADCA nailed his colours firmly to the mast of the actio. According to the leading judgment of Regal v African Superslate the criteria of reasonableness in the use of one’s property determines what usage a neighbour must endure and what need not be tolerated. The evidence showed that the storm water system on Redlands was designed in accordance with the then existing requirements of the local authority in order to collect storm water from Redlands and discharge it into the municipal storm water system. No reason was advanced for saying that this was unreasonable.

[35] That conclusion obviates any need to consider whether the criterion of negligence alone suffices for conduct by a neighbour to be unlawful, or whether a legal duty not to cause harm by negligence is required and, if so, when that duty arises and the extent thereof. Any person discharging storm water into a municipal storm water drainage system must be aware of the possibility that the storm water from their property will be concentrated with other water and may be discharged by the municipality in a way that causes harm to others.

But there is something illogical in permitting the lower owner who suffers loss as a result to recover from the upper owner, when they could only recover against the municipality if the latter was negligent in constructing the municipal storm water drainage system. A different view would mean that the residents of the municipality could be held liable for discharging storm water into the municipal storm water system, even though the municipality could not.

In those circumstances, there is much to be said for the principle that negligence alone is insufficient to support an action based on neighbour law and an element of unlawfulness is required.

[36] The duty element plays a central role in identifying the circumstances in which a party will be liable for negligently causing harm to another. The reasonableness of imposing liability in a particular set of circumstances – something different from the reasonableness of conduct when determining negligence – is central to this enquiry.

Sometimes, as with the conduct of a chicken hatchery adjacent to a residential property, or the activities of a golf club in relation to its neighbours, both the existence of the duty and its extent will be reasonably obvious and the focus will fall on questions of negligence. In others it will be more complex, especially where the activity in question is one regulated by law. That is the present situation. There was no endeavour to explore the duty element in the present case and it cannot be assumed that Redlands Estate owed any duty to Woodgrove to avoid causing it damage by the negligent discharge of stormwater from its property.

[37] The last point that needs to be made is that the trial judge relied upon various judgments, starting with that of Gregorowski J in Bishop v Humphries, and the passage in which the following was said about the implications of claims such as these in a developed urban environment:

‘The fact is that when land is sold in small building plots, a state of things is created and contemplated which puts an end to a large extent to the natural servitude which previously existed as regards the water which falls on the plots. Each owner puts up a building which covers a substantial part of the plot. He places an impervious surface over the naturally porous surface of the soil. He accumulates the water thereon. He alters the natural surface of the rest of the area of his plot by paving it or allocating temporary structures thereon or digging it up, and thereby annihilates the natural arrangement of the soil. The rainwater can no longer flow as it used to flow.’

[38] The claim by the upper owner to discharge water concentrated on that property by the building activities on it was dismissed because:

‘The Applicant has altered all the old conditions existing on the stand while it was virgin soil and in a state of nature and it is quite impossible for him to throw a burden on the adjoining stand which is based on the assumption that his stand has preserved rights which he himself has put an end to by his own constructions on the property.’

[39] While the point pertinently made in these passages that urban development must be a significant factor in dealing with claims such as those arising in the cases to which the judge referred is clearly correct, it must be borne in mind that all those cases involved the owner of the upper property seeking to compel the owner of the lower property to accept a discharge of water that had been concentrated by the development of the upper property.

The present case is the converse of that, in that it is the owner of the lower property objecting to the owner of the upper property concentrating stormwater on its property so that there is an increased discharge of water across the lower property. This difference was not recognised. If anything, the statement by Gregorowski J supported rather than undermined PADCA’s case.