Stream passing through culvert beneath road maintainable by defendants – Highway and other works in catchment area causing greater run-off of rainwater – Culvert initially adequate but failing to deal with increased flow – Claimant’s land flooded after heavy rain – Whether defendants liable in nuisance or negligence
In 1934 the predecessor of the defendant 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 defendant council became the relevant highway authority. In 1983 the first-named plaintiff bought part of a former sports ground (the site) which was bounded on two sides by the stream and on one side by Cemetery Lane.
From about 1985 the run-off of water into the stream was greatly increased by the construction upstream of the culvert of the M20 motorway and an extensive business park, with the result that the site and the lane, 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 June 1994, following a serious flood some months previously, the defendant authority received a letter from the claimant, urging the defendants to enlarge the culvert. In his letter of reply dated 3 February 1995 the defendants’ bridge engineer stated that no work would be carried out as the culvert was structurally sound.
In August 1996, following a torrential rainstorm, the stream burst its banks, causing extensive damage to the claimant’s garden centre, with a resulting loss (subsequently agreed) to the claimant of £123,000. The claimant brought proceedings alleging that: (i) the culvert constituted a nuisance; and/or (ii) the defendants were guilty of negligence. At the trial it was found as fact that the culvert did not constitute a nuisance before the early 1980s and that the defendant had, as early as 1990, become aware of the problem caused by the increased flow.
Held: Judgment for the defendants.
1. The court was obliged, however reluctantly, to follow the majority decision of the Court of Appeal in Radstock Co-operative & Industrial Society v Norton-Radstock Urban District Council [1967] Ch 1094, where it was held, on substantially similar facts, that a plaintiff riparian owner had to take the river bed as it was with such inconveniences as were inherent in it. Since that case turned upon an analysis of riparian rights, the claimant could not contend that it was inconsistent with Sedleigh-Denfield v O’Callaghan [1940] AC 880, as applied by the Privy Council in Goldman v Hargrave [1967] AC 645, holding that a defendant could, in certain circumstances, be taken to have continued or adopted a nuisance that was not of his creation.
Nor could the claimant rely on Pemberton v Bright [1960] 1 WLR 436, as, in that case, the flooding was caused by the defendant’s failure to prevent an otherwise adequate culvert from becoming blocked by debris.
2. In the light of the convergence of the modern laws of nuisance and negligence (see Leakey v National Trust for Places of Historic Interest and Natural Beauty [1980] 2 WLR 65) the above considerations were equally applicable to the allegation of negligence.
3. It was to be hoped that an appropriate authority would call upon the defendants to take the remedial action required by section 25 of the Land Drainage Act 1991.
Neil Moody (instructed by Williams Davies Meltzer) appeared for the claimant; James Dingemans (instructed by Berrymans Lace Mawer) appeared for the defendants.
Alan Cooklin, barrister