Flooding — Common enemy rule — Foreseeability — Works to respondents’ land causing flooding to appellants’ homes — Whether common enemy rule preventing liability — Whether flooding foreseeable at time of works Article 8, and Article 1 of First Protocol to, European Convention on Human Rights — Appeal dismissed
The homes of the 32 appellants were flooded when, on a night of exceptionally heavy rainfall, the River Taff overflowed its banks. The water would ordinarily have flowed onto land belonging to the first respondents, but for the fact that they had deposited colliery spoil onto the land in the early 1970s, thereby raising its level by 10 to 12 ft. The area had a history of flooding, and the first respondents’ action was in accordance with a government initiative that had been introduced to prevent the reoccurrence of an earlier flood, which had destroyed a nearby village.
The appellants brought a claim for damages against the respondents. It was accepted before the judge that the deposit of the spoil was a material cause of the flooding; a conclusion that was supported by expert reports based largely upon computer modelling techniques that had not been available in the 1970s. Dismissing the claim, the judge held that the case was governed by the common enemy rule, which stated that a landowner was entitled to develop its land so as to prevent flood waters coming onto it, and that if, as a result, flood waters that would have gone onto that land instead damaged the land of another, such an occurrence would not provide a cause of action in nuisance. The judge further found that it had not been reasonably foreseeable, at the time at which the infilling had been carried out, that it might later cause flooding to the appellants’ properties.
On appeal, the appellants contended that the common enemy rule was not applicable in the circumstances of the case, or that the rule ought to be modified in the light of the court’s obligations under the Human Rights Act 1998, with particular regard to Article 8 of, and Article 1 of the First Protocol to, the European Convention on Human Rights. They also challenged the judge’s finding on foreseeability.
Held: The appeal was dismissed.
The common enemy rule was subject to two limitations: a landowner could not alter an established watercourse, or cause water that was already on, or would in any event come onto, its land to flow from it onto its neighbours’ land. Both limitations had been met on the facts of the case. Moreover, the application of the rule was unaffected either by Article 8 or by Article 1 of the First Protocol. This was because, in the present case, the 1998 Act had not come in force at the relevant time and did not therefore apply, and because the common enemy rule was, in principle, inoffensive to those articles since it met the balance between private right and public interest. Futhermore no liability could arise without reasonable a foreseeability of damage. The judge had been entitled, on the evidence before him, to conclude that the causal link between the infilling of the respondents’ land and the flooding to the appellants’ homes had not been reasonably foreseeable.
Lord Martin Thomas of Gresford QC and Gordon Wignall (instructed by Hugh James Solicitors, of Merthyr) appeared for the appellants; Paul Darling QC and Jessica Stephens (instructed by DLA, of Sheffield) appeared for the first respondent; Howard Palmer QC (instructed by Dolmans, of Cardiff) appeared for the second respondents.
Sally Dobson, barrister
