Housing development – Sewer – Overflow – Council selling redundant school playing field for housing development – Developer building on lower part of field – Flooding occurring to nearby gardens – Claimant householders seeking damages in nuisance and negligence – Whether developer’s actions causing flood – Whether council breaching measured duty of care in failing to abate nuisance – Whether council undertaking to indemnify developer against damages claim – Claim allowed
In 1993, the second defendant council sold a redundant school playing field for housing development. The first defendant developer obtained planning permission to develop the lower part of the field. The field, including the upper part that the second defendants retained, sloped down towards the south-east corner. Houses located in the same road, which had been built in the 1930s, backed onto the eastern boundary of the field. Surface water naturally drained towards and past the gardens of the road to the south-east corner, where it fed into the sewer system through a drain that was situated between two of the houses. However, following the construction of the development on the lower part of the field, flooding of the gardens in the road commenced and continued to the present day.
The claimant houseowners brought proceedings against the defendants in nuisance and negligence, claiming damages and injunctive relief. The first defendant brought a Part 20 claim against the second defendants, pursuant to an agreement under which the second defendants allegedly undertook to indemnify the first defendant against such claims (the indemnity clause).
The claimants contended that, prior to the development, the waterpath consisted of a drainage ditch that ran behind and to the west of their properties that was adequate to collect the water draining from the fields, which were now developed and retained, and to discharge it into a public drain to the south of the fields. They alleged that the first defendant had negligently filled in and fenced over the ditch during the development, with consequent flooding problems.
The claimants further argued that the second defendants were also liable because they had allowed the water from the undeveloped land to continue to flow from the undeveloped land onto the land purchased by the first defendant for development and thence onto their properties, despite having become aware of the problem in December 1998.
Held: The claim was allowed.
An occupier was liable if it had either created or authorised the nuisance, or adopted or continued the state of affairs that gave rise to the nuisance, regardless of its origin.
In the instant case, the first defendant had been negligent in constructing the eastern boundary of its development in such a way as to restrict the natural flow of water from the south-east corner of the retained land past the claimants’ properties. It had been reasonably foreseeable that: (i) the resulting restricted gap would not cope with the volume of water that could flow from the retained land, particularly after heavy rain; (ii) the water would encroach onto the claimants’ and other properties to the south of them; and (iii) damages would result. Such encroachment resulted from an unreasonable use of the land which the first defendant had purchased from the second defendants and constituted a nuisance whose effects would continue until abated. It followed that the first defendant was liable to the claimants in negligence and nuisance for the loss and damage caused by the flooding, including the cost of remedial work and the cost of abating the nuisance by the only viable scheme: Sedleigh-Denfield v O’Callaghan [1940] AC 880 applied.
The owner of higher land did not come under a measured duty of care if it became aware that even naturally draining water from its land was causing damage to a lower owner. In the instant case, that was the case following the second defendants’ knowledge of the flooding problem as from December 1998. Thereafter, the second defendants could have foreseen that, unless the nuisance caused by the obstructed water path had been abated, damage would continue to occur to the claimants’ land: Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 and Arscott v Coal Authority [2004] EWCA Civ 892; [2005] Env LR 6 applied.
The measured duty of care had to be considered in the light of the factors that any scheme to abate the nuisance had required action on the second defendants’ part to construct the necessary drainage ditches and catch point for the water that drained from the retained land. That, in effect, was the missing piece of the jigsaw, because some houseowners had consented to the proposed culverted pipe passing through their land. The claimants had no power to enable the scheme to be completed. On the other hand, the second defendants had: (i) owned the land where the water had arisen; (ii) sold the land for development; (iii) failed to follow through the concerns in respect of drainage that had been expressed to the first defendant at the time of the sale; and (iv) there was no solution except through work done on the second defendants’ land. In failing to co-operate in a solution, the second defendants had adopted the mistaken position that they were not under a duty to abate a naturally occurring nuisance. It followed that the second defendants had been in breach of their measured duty of care in failing to abate the nuisance, albeit that the primary cause of the nuisance was the first defendant’s obstruction of the water path: Palmer v Bowman [2000] 1 WLR 842 and Green v Lord Somerleyton [2003] EWCA Civ 198; [2004] 1 P&CR 33 considered.
The indemnity clause had to be construed strictly and its terms were insufficiently clear to indemnify the first defendant in respect of its own negligence. The words “caused by the erection or subsequent existence of the residential development” were too wide to include the negligence of the first defendant. Accordingly, the first defendant’s reliance upon the indemnity clause failed in respect of the claimants’ claim “in respect of [its] inference with or disturbance” of the natural drainage from the retained land along the water path.
Jeffrey Terry (instructed by Berrymans Lace Mawer, of Manchester) appeared for the claimant; Wilson Horne (instructed by Field Cunningham & Co, of Manchester) appeared for the first defendant; Sebastian Clegg (instructed by Forbes Solicitors, of Blackburn) appeared for the second defendant.
Eileen O’Grady, barrister
