LAND CONTROL REQUIREMENTS FOR DRAINAGE
WSA requires that drainage approval holders maintain land control for all land to the point of adequate outlet. The potential for directly impacting neighbours with a drainage project makes it important that land control be a consideration in the drainage approval process. The Water Security Agency Act requires that proponents of drainage projects provide “proof of land control satisfactory to the corporation [WSA].”
WHAT IS MEANT BY THE TERM ‘LAND CONTROL’?
Land control refers to ownership or interest in lands. In the context of drainage, land control is the right of the approval holder to drain from his or her own land, across, or onto a parcel of land owned by another, or through ditches downstream. There are various forms of land control that are relevant to impacting lands from drainage. From highest to lowest degree of control, the range is:
Land control refers to ownership or interest in lands. In the context of drainage, land control is the right of the approval holder to drain from his or her own land, across, or onto a parcel of land owned by another, or through ditches downstream. There are various forms of land control that are relevant to impacting lands from drainage. From highest to lowest degree of control, the range is:
- Ownership of land
- An easement registered on title to the land
- Joint application
- Written agreement between landowners
An easement is registered on title and is permanent even if the land changes hands. Joint application means that every landowner in the network has signed the application and the application is the land control mechanism. On the other hand, a written agreement will be lost when land ownership changes. Saskatchewan law does not recognize a continued right to use someone else’s land, even if it has been used for decades. A verbal agreement for any land agreement is not acceptable.
WHAT ARE MY RISKS ASSOCIATED WITH EACH TYPE OF LAND CONTROL?
If you have a written agreement with your neighbour, your land control is safe until either you or your neighbour disposes of the land to someone else or changes the names on title – that could include adding a spouse,son, daughter or other relative to the title. Once the registered owners of either of the parcels changes, the written agreement is not enforceable and you no longer have land control. This will mean you are out of compliance with your drainage approval and will need to get a new agreement or may be ordered to close your works.
If the owners of all affected lands and works apply jointly for a drainage approval, all owners will be named on the approval and the rights and obligations in the approval will pass to subsequent landowners for the duration of the approval. This provides a greater level of security that the project will endure.
The most certainty comes with a registered easement on title or ownership of all affected lands and works. However, with an extensive project this is rarely a practical option.
A registered easement will be required in the following circumstances:
• Drainage works built and/or maintained with public funds;
• Conservation and Development Area Authority or Watershed Association works.
The holder of the drainage approval is responsible for providing evidence of land control to WSA, when requested. For example, where a drainage Request for Assistance has been accepted by the WSA, WSA will require proof of the written land control agreement. Where evidence cannot be provided, WSA may order closure of the works.