GOOD NEIGHBOURLINESS: STORM WATER IN A TEACUP

Neighbourly disputes – whether over noisy parties, leaves falling onto the other’s property or even more trivial matters – are generally petty in nature and may be overcome with a good, neighbourly chat.

However, this is not always the case. From time to time a neighbourly dispute carries with it expensive consequences. This was the case in the matter of Pappalarado v Hau, a judgment of the Supreme Court of Appeal which has particular relevance with the Highveld rainy season fast approaching.

This case involved a dispute between two neighbours about storm water run-off. The lower lying neighbour constructed a boundary wall on his property which caused rain water to pool alongside the higher lying neighbour’s boundary wall. The higher lying neighbour therefore demanded that the lower lying neighbour allow drainage pipes to be placed at the base of the wall to allow the water to drain onto the lower neighbour’s property. The lower neighbour refused.

It was held by Hurt J in the Supreme Court of Appeal that the law in relation to storm water run-off finds its roots in Roman Law, surrounding the action aquae pluviae arcendae. Through an examination of the various cases heard on the issue it was held that a neighbour on higher ground was not entitled to claim that his lower lying neighbour must accommodate all storm water run-off from his property to the lower lying property. The law merely provides that the “natural” flow of water must be accommodated.

It was held that, in urban areas, very little of the “natural” flow of storm water run-off remains. The “natural” flow is irrevocably altered through the construction of roofed buildings, paving, and other constructions which may concentrate the flow of water in a particular direction.
The impact of such constructions must therefore be taken into account on a case-by-case basis when determining the extent to which a neighbour on lower lying ground will have to accommodate the water run-off from a higher property.

The higher lying neighbour in the Pappalardo case had paved a large section of his property. In so doing, as was held by Hurt J, he had created circumstances which significantly altered the natural flow of storm water on his property. This caused the build-up of water against his lower lyingneighbour’s wall, which could have been avoided had he taken the eventuality into account and taken the appropriate preventative measures. It would not have been just to place a greater burden on the lower neighbour in such circumstances, and the lower-lying neighbour could therefore not be forced to allow the installation of drainage pipes into his wall to accommodate the now-surplus water to drain through his property.

The importance of good site and drainage planning is made evident in this case. The problem of storm water drainage commonly faced by many neighbours, and it is a problem that will generally attempt to be passed on to the lower-lying neighbour.

As the Pappalardo case has shown, our courts will not allow a lower lying neighbour to be forced to contend with an unnatural state of affairs where unnatural flow of storm water created by the higher lying neighbour.