§ Mr. Alex CarlileTo ask the Secretary of State for the Environment, pursuant to his answer of 17 May,Official Report, columns 395–6, what is the legal liability for damage to neighbouring property of water authorities which are negligent in sinking boreholes, irrespective of powers conferred under the Water Industry Act 1991; and if he will make a statement.
§ Mr. AtkinsThe legal position of a water undertaker which abstracts water from a borehole on the undertaker's own land, in circumstances where no abstraction licence or works order is required, is no different from the law applicable to any other landowner who lawfully abstracts water from land. English law distinguishes between two kinds of underground water: water flowing in a certain and definite channel and percolating water. Only water which flows in a known and definite channel can be the subject of property or riparian rights. Whereas at common law the owner of land has the right to have the surface of his land supported by minerals on or under his neighbour's land, there is no equivalent right to have the surface of his land supported by water; nor does he have any rights in respect of water running in undefined channels, except to sink wells and so obtain a supply of water.
Unless a duty of care is established there is no liability for negligence. Since the owner of land has no right of support from underground water flowing in undefined 88W channels, he cannot show that a neighbouring landowner owes him a duty of care not to abstract that water and so remove support from his own land, unless the loss of support is due to the removal of minerals, such as wet sand, running silt or dissolved rock salt.