Stream passing through culvert beneath road maintainable by respondents – Highway and other works in catchment area causing greater run-off of rainwater – Culvert initially adequate but failing to deal with increased flow – Appellants’ land flooded after heavy rain – Whether respondents liable in nuisance – Judge finding respondents not liable – Appeal allowed
In 1934 the predecessor of the respondent highway authority constructed a culvert beneath Cemetery Lane in Ashford, Kent, to allow for the passage of a stream that discharged into the River Great Stour a short distance downstream from the lane. The culvert consisted of a concrete pipe 900mm in diameter and approximately 20m in length. In 1974 the respondent council became the relevant highway authority. In 1983 the first appellant bought land near the culvert for use as a garden centre and leased retail space within the centre to the other appellants. Over time the run-off into the stream was greatly increased by the construction of the M20 motorway and an extensive business park, with the result that the land near the culvert, which had no previous history of flooding, became flooded after heavy falls of rain.
In 1986 and again in 1989 Ashford Borough Council, as the planning authority, received expert reports that the problem would largely be solved if the culvert were to be enlarged so as to cope with the additional flow. In August 1996, following a torrential rainstorm, the stream burst its banks, causing extensive damage to the garden centre. The appellants brought proceedings alleging, inter alia, that the culvert constituted a nuisance. The judge found that the council had become aware in about 1990 that the culvert was no longer able to take the quantity of water, but held that, on the basis of Radstock Co-operative & Industrial Society v Norton-Radstock Urban District Council [1967] Ch 1094, the respondents had no responsibility to increase the size of the culvert.
The appellants appealed. The issue raised was whether a highway authority that had constructed a culvert to take a natural stream under the highway, which was adequate at the time it was constructed and thus did not cause a nuisance, and which when built would not reasonably be expected to cause a nuisance, became responsible to enlarge the culvert when factors that were not their responsibility demonstrated that the culvert was no longer adequate and that it become the cause of a nuisance.
Held: The appeal was allowed.
In Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485, it had been held correctly that Radstock (supra) was inconsistent with previous authorities and particular to its facts. Accordingly, the judge had been wrong to feel that he was constrained by Radstock. The test to be applied was that in Leakey: whether the defendant had done what was reasonable for him to do. In establishing what was reasonable, the amount of expenditure required to eliminate or reduce the danger could be considered. The factors which pointed in favour of liability were that the respondents’ predecessors had chosen to construct a culvert to put the natural stream under the highway which placed them under a high obligation to see that the natural stream could continue to flow under the highway. The respondents had had the means of preventing the flooding by enlarging the culvert at some cost, but without great difficulty. It was not a case where it would be right to conduct a general inquiry as to the budget available to the respondents or as to their backlog. Accordingly, the respondents were liable for damage caused to the appellants by the flooding resulting from the culvert.
Howard Palmer QC and Neil Moody (instructed by Williams Davies Meltzer) appeared for the appellants; James Dingemans (instructed by the solicitor to Kenty County Council) appeared for the respondents.
Thomas Elliott, barrister
