Nuisance – Flooding – Surface water – Measured duty of care – Water flooding onto highway from higher ground – Water failing to drain away owing to blockage in grating of drains – Flooding resulting to respondent’s land – Whether appellant local authority liable in nuisance and negligence – Extent of duty of care – Appeal dismissed
The respondent owned a property in Cornwall that consisted of a former manor house that had been developed into a holiday village. The property adjoined a highway, which tended to flood during heavy rainfall owing to water running onto it from nearby sloping ground. At such times, the water would collect in a dip in the road and, if not carried away by drains, would overflow onto the respondent’s property. Although the appellant highway authority had installed a series of drains, gullies and catchpits in the dip in 2000, sufficient to carry away all water that might collect there, they did not work if the gratings became blocked with leaves and other debris. On two occasions, in November 2006 and September 2008, the respondent’s property suffered flood damage from water running off the highway during heavy rainfall after the gratings became blocked in that way.
The respondent brought a claim for damages against the appellants in respect of the flood damage, which was quantified at nearly £123,391 for the November 2006 incident and £18,233 for the September 2008 incident. The respondent contended that the appellants were in breach of their duty to maintain the highway under section 41(1) of the Highways Act 1980 and were liable in both negligence and nuisance for the escape of the water.
The appellants submitted that they had taken all reasonable steps to prevent flooding in the way that they dealt with road maintenance. Allowing the respondent’s claim, the judge found that: (i) the appellants’ system was flawed, in that the maintenance teams employed by the company that it used for that task were not required to identify flooding hotspots to their line managers and there was no standard procedure requiring them to check hotspots during bad weather; (ii) the system was adequate despite those flaws because the person who dealt with the area around the respondent’s property performed such checks on his own initiative; but (iii) his failure, without reasonable explanation or excuse, to follow that practice on the occasion of the two incidents amounted to a breach by the appellants of their duty to the respondent as an adjoining landowner.
The appellants appealed. They contended that the judge had imposed too high a standard of care, wrongly focusing on the measures necessary to prevent flooding without having regard to all the circumstances of the case.
Held: The appeal was dismissed.
“Natural nuisances” were those caused by the operation of nature rather than any act of the landowner. The original rule had been that a landowner was not liable for non-feasance in respect of natural nuisances and, although a landowner could now be so liable, that liability was confined to a “measured duty”, subject to qualifications not usually found in the law of tort. In that area of the law, the landowner’s liability in nuisance was effectively the same as his liability in negligence: Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] 1 QB 485 and Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55; [2002] 1 AC 321; [2001] 44 EG 150 (CS) applied. A landowner owed a measured duty in both negligence and nuisance to take reasonable steps to prevent natural occurrences on his land from causing damage to neighbouring properties. In determining the content of the measured duty, the court had to consider what was fair, just and reasonable as between the two neighbouring landowners, having regard to all the circumstances, including the extent of the foreseeable risk, the available preventive measures, the costs of such measures and the resources of both parties. Where the defendant was a public authority with substantial resources, the court had to take into account the competing demands on those resources and the public purposes for which they were held. It might not be fair, just or reasonable to require a public authority to expend those resources on infrastructure works in order to protect a few individuals against a modest risk of property damage: Sedleigh-Denfield v O’Callaghan [1946] AC 880, Goldman v Hargrave [1967] 1 AC 645, Leakey, Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] QB 836; [2000] PLSCS 39, Delaware, Green v Lord Somerleyton [2003] EWCA Civ 198; [2003] 11 EG 52 (CS) and Lambert v Barratt Homes Ltd [2010] EWCA Civ 681; [2010] 2 EGLR 59; [2010] 33 EG 72 applied.
In the instant case, the relevant factors included the fact that: (i) most of the floodwater came from the land of a third party and was not exacerbated by the appellants, who instead took steps to reduce its effect; (ii) the appellants were only an adjoining owner by reason of their position as a highway authority and had many demands on their resources; (iii) the appellants had an adequate system in place, as found by the judge, the road in question being a secondary road on which there had been only two floods in the eight years since the drains were installed; and (iv) the respondent had caused or contributed to the flood damage by failing itself to clear the gratings. It was debateable whether it was relevant that the claimant was able to, and did, insure against the damage suffered: Lambert considered. It was not relevant that the respondent had, many years ago, altered the topography of the land and filled in an old ditch when carrying out construction works to build the holiday village. Since those works, new drains had been installed to carry away surface water from the road. It was a feature of many villages that ponds or ditches dug out in the past had been filled in and new drainage arrangements, often subterranean, had been installed. That was a consequence of progressive urbanisation and other developments across the landscape; the court had to determine the duties of landowners and local authorities by reference to the current arrangements, not historic events.
The judge had taken all the relevant factors into account. Although he was carrying out a multifactorial assessment, he had properly highlighted those factors which were particularly significant and had been entitled to treat as critical the fact that, on two occasions and for no good reason, the person responsible for maintaining the road had departed from his normal practice and failed to attend the hotspot during exceptionally heavy rainfall. Although the appellants were a highway authority with a large network of roads to maintain, with the principal duty of preserving the safety of road users, precisely the same measures were needed both to protect motorists against flooded roads and to prevent flood damage occurring to adjacent properties. Those measures were to check and clear the drain. Even allowing for the pressures on local authorities, the measured duty on the appellants required them to take reasonable steps to keep the drainage installation functioning properly. While there were limits on what could be expected from local authorities in relation to flood prevention, the judge had not applied too high a standard of care in the instant case.
Richard Stead (instructed by Wansbroughs Solicitors, of Devizes) appeared for the appellants; William Vandyck (instructed by Berrymans Lace Mawer LLP, of Birmingham) appeared for the respondent.
Sally Dobson, barrister