Appellants’ property flooding on regular basis — Flooding caused in part by overflow from pond on respondent’s land — Respondent taking inadequate steps to rectify problem — Expert concluding that flooding caused by other factors — Judge at first instance deciding case on basis of expert’s report — Whether judge erred in failing to address issue of efficacy of respondent’s steps — Appeal allowed
A pond on the respondent’s land regularly overflowed, causing flooding to the appellants’ property. After numerous complaints over a period of many years, the respondent finally employed someone to pump out the pond and the adjacent field. It was found that part of the problem could be attributed to broken pipes, running from the respondent’s land across that of the appellants, that were no longer connected to the local authority drainage system. The respondent replaced the faulty broken pipes and the problem appeared to be resolved.
The appellants subsequently found that the history of flooding had blighted their property to the extent that they were unable to sell it. They brought a claim against the respondent on the grounds that: (i) she had been negligent in failing to abate the nuisance at an earlier stage; or (ii) the steps she had taken were inadequate.
The parties agreed to instruct a joint expert, who discovered that a drain and culvert maintained by the local authority were not in full working order. Thus, flooding was partly the result of rainwater run-off from the adjacent highway. He stated that the only permanent solution to the problem would be the construction of a new culvert, and that the replacement pipework installed by the respondent did not represent an adequate long-term solution.
The judge at first instance, relying upon the expert’s report and witness statements submitted by the parties, found summarily for the respondent. He held that the main cause of the flooding was the inadequacy of the culvert, an issue that needed to be addressed in the future. He further held that the respondent had not been negligent in failing to exert pressure on the highway authority.
Held: The appeal was allowed.
The trial judge had erred in having concerned himself solely with the work that needed to be carried out in the future and in failing to consider the issues connected with the work that had already been undertaken. He should have considered whether that work had failed to abate the nuisance. That issue could not have been resolved without the hearing of evidence from the appellants and the judge had therefore been wrong to resolve the dispute on a summary basis. The case was remitted to the county court.
Mark Halliwell (instructed by Brown & Corbishley, of Sandbach) appeared for the appellants; Nigel Bird (instructed by Keoghs, of Bolton) appeared for the respondent.
Vivienne Lane, barrister
