In the current context of energy and resource concerns and with a focus on renewable alternatives and opportunities, the water conundrum is often overlooked. Rising water prices may be expected in the near future and this may concentrate public attention towards the storage and utilisation of the “free stuff” that all too frequently falls from the sky in the UK.
England: Capture, not ownership
In England, rain is not generally “owned” as it falls. The practical legal question is whether it may be captured and used. In most residential and commercial settings, owners and occupiers may lawfully collect roof runoff and store it for non-potable purposes, subject to compliance with the Water Supply (Water Fittings) Regulations 1999 and the Building Regulations 2010.
Limits and liability
Limits matter. Once water is accumulated, it must be stored lawfully and remain within permitted volume limits. Liability may arise if storage or discharge causes nuisance, flooding or escape: see Sedleigh-Denfield v O’Callaghan [1940] AC 880 and Transco plc v Stockport MBC [2003] UKHL 61. The Water Resources Act 1991 becomes more relevant where collection resembles abstraction from a watercourse or groundwater, rather than simple roof harvesting.
Civil exposure and risks
In England and Wales, the principal risks usually arise after rainwater has been captured. If tanks, gutters, attenuation systems or discharge arrangements cause water to escape onto neighbouring land, likely causes of action include private nuisance, negligence and, in more unusual commercial cases, the rule in Rylands v Fletcher (as narrowly applied in Transco plc v Stockport MBC [2003] UKHL 61). Essentially, the capture, storage and use cannot be permitted to cause detriment to a ‘neighbour’. Where an occupier adopts or continues a dangerous accumulation, Sedleigh-Denfield v O’Callaghan [1940] AC 880 remains relevant. Remedies may include damages, injunctions, abatement, recovery of remedial costs and, where appropriate, declaratory relief.
Regulatory exposure
Residential systems are commonly low-risk, but installations must still comply with the Water Supply (Water Fittings) Regulations 1999, particularly to prevent contamination through cross-connections with the mains supply. Commercial premises face greater scrutiny where harvesting systems connect into wider drainage, attenuation or process-water infrastructure. Non-compliance may lead to enforcement notices, required remedial works and prosecution.
If stored rainwater is discharged in a way that pollutes controlled waters, offences may arise under the Water Resources Act 1991 and the Environmental Permitting (England and Wales) Regulations 2016. In serious cases, sanctions may include unlimited fines, remediation orders and, for the most serious offending, imprisonment.
Oregon’s Warning
Oregon’s Harrington case (2012) is a useful contrast and perhaps a nod to future changes. Gary Harrington of Eagle Point, Oregon, built three large reservoirs on his 170-acre property to catch rainwater and snowmelt for wildfire protection and wildlife. The state ruled his reservoirs were illegal and he was convicted of multiple misdemeanour charges, including unlawful appropriation of state water resources. In Oregon, rainwater harvesting is generally legal, but it is restricted. You can typically collect rain that falls onto a rooftop, but you cannot capture or divert rainwater that has already hit the ground and is part of the natural runoff or watershed.
Summary
England and Wales are currently more permissive for small-scale on-site harvesting. The sharper question here is not necessarily “who owns the rain,” but more an understanding of when legal characterisation changes, either on hitting the ground or during storage and use.
Rain is a precious commodity and a primary source of water. It is an unavoidable constant in our ecosystem. Very likely, it will become an issue of heightened focus and concern in the coming years as demand increases and supply/retention problems continue to suffer from the fundamental absence of infrastructure investment.
At Dyne Solicitors, we are specialists in Regulatory Disputes and Environmental Litigation. If you have any queries or wish to discuss your legal issues, please contact as@dynesolicitors.co.uk or call the office on 01829773100. A member of the Team is always willing to make time for a preliminary and no-obligation chat.