Flooding — Drainage easement — Appellant’s land flooded by water emanating from respondents’ land — Whether nuisance liability for naturally flowing water — Whether earlier conveyance impliedly reserving easement of drainage to respondents’ predecessor — Appeal allowed
The respondents owned an area of marshland known as Scale Marshes. The adjacent marshland, Priory Marshes, belonged to the appellant. Both marshes had previously belonged to the respondents’ predecessor, who, in 1921, had sold Priory Marshes by way of a conveyance expressed to be “subject to and with the benefit of” a deed of covenant of the same date. By that deed, he covenanted to operate a drainage pump “whenever requisite for the purpose of draining the said lands”, those lands being identified on an attached plan as including Priory Marshes and Scale Marshes.
In December 1993, following a period of heavy rainfall, serious flooding occurred at Priory Marshes, caused in part by water emanating from Scale Marshes itself, and by water passing through those marshes from a lake owned by one of the respondents. Priory Marshes was flooded intermittently thereafter.
The appellant brought a claim in nuisance against the respondents and sought a declaration that the respondents did not enjoy a general and unrestricted right to discharge water from Scale Marshes into Priory Marshes. He claimed, in particular, that drainage from the lake was not permitted. The respondents counterclaimed for a declaration that they were entitled to drain all water on Scale Marshes, including that emanating from the lake, into the dykes in Priory Marshes. The judge found that there was no nuisance liability, holding, in reliance upon Thomas & Evans Ltd v Mid-Rhondda Co-operative Society [1941] 1 KB 381, that the duty of care identified in Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 did not arise in relation to the natural flow of water. He granted the declaration sought by the respondents on the ground that the easement they claimed had been impliedly reserved by the 1921 conveyance. The appellant appealed.
Held: The appeal was dismissed.
1. The Leakey duty would apply to the respondents in respect of flooding, absent any relevant easement, but, on the evidence, they had not breached that duty. The relevant principle was that a duty of care applied to an occupier who had sufficient control over the hazard that constituted the nuisance for it to be reasonable to make him liable for the foreseeable consequences of his failure to remove the hazard: LE Jones (Insurance Brokers) Ltd v Portsmouth City Council [2002] EWCA Civ 1723; [2003] 1 WLR 427 applied. There was no reason in principle why that basis of liability should not apply to flood water. Thomas established no exception to the Leakey duty in respect of naturally flowing water; although the Leakey test had not been applied in that case, the same result would have been reached if it had: Elston v Dore (1982) 43 ALR 557 considered. The tort of nuisance was susceptible to a process of development and refinement, and it had moved on since Thomas.
2. The judge had been right to find that the respondents enjoyed an easement of drainage. The wording of the 1921 conveyance effectively incorporated the deed of covenant by reference. The clear inference was that the provisions of the deed were intended to have the character of proprietary rights. In the light of that and the terms of the deed, the inescapable conclusion was that the 1921 conveyance impliedly reserved to the vendor and his successors in title an easement of drainage in the terms claimed by the respondents. That easement extended to water emanating from the lake, since it could not have been the common intention of the parties to treat such water any differently from other water finding its way into the dykes on Scale Marshes and thence into Priory Marshes: Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 applied.
Caroline Hutton (instructed by Mears Hobbs & Durrant, of Great Yarmouth) appeared for the appellant; Nicholas Caddick and Alexander Learmonth (instructed by Nicholsons, of Lowestoft) appeared for the respondents.
Sally Dobson, barrister
