Highway obstruction — Foreseeability — Cost of prevention — Appellant farm owners held liable for cost of clearing highway obstruction caused by debris washed off their land — Wash-off caused by exceptionally severe storm — Whether reasonably foreseeable — Whether appellants’ means relevant in assessing reasonable preventative measures — Section 150(4)(c) of Highways Act 1980 — Appeal allowed
The appellants owned a farm on the slope of a river estuary in Devon. The respondents were the local highway authority. Two of the appellants’ fields (A and B) had previously suffered from erosion until they were set aside for natural regeneration to prevent the problem. Subsequently, during a heavy thunderstorm, rainwater flowing through the farm caused the erosion of two different fields (C and D), which had not suffered from erosion in over 40 years. Large quantities of stone and soil were washed onto a nearby highway. MAFF guidelines characterised the risk of wash-off from land of that type as high, but emphasised that such guidelines were subject to local knowledge and experience. The Meteorological Office assessed that the precipitation during the storm was such as could be expected only once in every 200 years.
The respondents brought proceedings against the appellants, pursuant to section 150(4)(c) of the Highways Act 1980, to recover the cost of removing the obstruction from the highway. Under section 150(4)(c), such costs were recoverable from the owner of “the thing which caused or contributed to the obstruction”, unless the owner could prove “that he took reasonable care to secure that the thing in question did not cause or contribute to the obstruction”.
The judge held that the appellants had failed to prove that they had taken reasonable care, since they had known that their land was vulnerable to erosion, in the light of the MAFF guidelines and the problems with fields A and B, but had none the less continued to farm fields C and D in arable rotation, instead of setting them aside.
On appeal, the appellants contended that: (i) fields C and D were materially different from A and B because they had not previously suffered from erosion and the risk they posed was negligible; (ii) the rainfall during the storm had been so exceptional that no reasonable measures would have prevented the wash-off; and (iii) setting aside fields C and D was not a reasonable measure, since it would have removed 50% of the appellants’ land from cultivation and made the farm financially unviable.
Held: The appeal was allowed.
The risk of wash-off from fields C and D was not reasonably foreseeable by the appellants. The fact that those fields had suffered no significant wash-off in over 40 years indicated that they were not as vulnerable as fields A and B, and the MAFF guidelines expressly acknowledged the importance of local knowledge and experience in assessing such risks. Moreover, the wash-off from fields C and D had been caused by an extremely exceptional event, and there was no evidence that it would have happened otherwise. That being so, it was not possible to conclude that a reasonable person would have foreseen it. Accordingly, the defence in section 150(4)(c) of the 1980 Act was made out.
The appellants had been under no duty to take any steps to prevent something that they could not reasonably have foreseen, either by taking the land out of cultivation or otherwise. However, had the wash-off been reasonably foreseeable, the financial means of the appellants would not have been relevant in determining what constituted reasonable preventative measures, since they had themselves caused, or contributed to, the risk of wash-off by their use of arable farming: Holbeck Hall Hotel Ltd v Scarborough Borough Council (No 2) [2000] QB 836 distinguished. The cost of those measures would have been relevant only in general terms, unrelated to the appellants’ means, as a factor to be weighed against the level of risk and the gravity of potential damage.
Benjamin Browne QC and Michael Brabin (instructed by Hugh James Ford Simey, of Exeter) appeared for the appellants; Robin Tolson QC and Michael Berkeley (instructed by the solicitor to Devon County Council) appeared for the respondents.
Sally Dobson, barrister
