Housing development – Sewer – Overflow – Appellant council selling school playing field for housing development – Developer building on lower part of field – Flooding to nearby gardens – Respondent householders seeking damages in nuisance and negligence – Court finding developer’s actions causing flood – Whether appellants breaching measured duty of care in failing to abate nuisance – Appeal allowed
The respondents were the owners of 1930s-built houses whose gardens backed onto the eastern boundary of a redundant school playing field. In 1993, a developer purchased the lower part of the field from the appellant council for the purposes of a housing development for which it had planning permission. In the past, surface water had naturally drained down the slope of the field towards its south-east corner, from which it entered the sewer system through a drain. Following the construction of the new houses, the respondents’ gardens began to flood.
The respondents brought proceedings against the appellants and the developer in nuisance and negligence, claiming damages and injunctive relief. The appellants brought a Part 20 claim against the developer, pursuant to an agreement under which the latter allegedly undertook to indemnify the former against such claims (the indemnity clause).
The High Court found the developer liable to the respondents in damages and the appellants liable for breach of a measured duty to take reasonable steps to abate the nuisance caused by the water flooding from their land and damaging the respondents’ land: [2009] EWHC 744 (QB); [2009] 2 EGLR 63; [2009] 32 EG 70. The appellants appealed; the developer did not challenge the judgment against it.
Held: The appeal was allowed.
The judge’s analysis was erroneous and his decision could not stand. He had held that the appellants were in breach of their measured duty of care for failing to: (i) abate the nuisance; and (ii) actively co-operate in solving the problem by constructing the necessary drainage ditches and catch pit. Those conclusions overstated the scope of their measured duty.
The scope of the measured duty of care depended not only on the appellants’ knowledge of the hazard, the ease and expense of abatement and their ability to abate it but also on the extent to which the damage was foreseeable, and whether it was fair, just and reasonable in the circumstances to impose a duty. Justice did not require the appellants to be held liable for damage that was more extensive than that which was foreseeable. Nor was it necessarily incumbent on a party in their position to carry out extensive and expensive remedial works to prevent the damage that they ought to have foreseen.The scope of the duty might be limited to warning neighbours of risks of which they were aware or ought to have foreseen and sharing such information: Goldman v Hargrave [1967] 1 AC 645, Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 and Holbeck Hall Hotel Ltd v Scarborough Borough Council (No 2) [2000] QB 836 considered.
Although the appellants were not responsible for the cause of the flooding, they were under a duty to co-operate in a solution that involved the construction of suitable drainage and a catch pit on their retained land. Whether that extended to carrying out those works themselves or undertaking other work outside the retained land was an open question, which the facts found by the judge did not enable the appeal court to determine. However, the duty did not extend to obliging the appellants to meet the entire cost of the relief works. It was plain from the information available that, over the years, they had co-operated in obtaining consents. It was far from clear whether a breach of duty for failing sufficiently to co-operate or facilitate could be established, nor whether that would sustain any material damages claim in circumstances in which the developer‘s refusal to accept liabilty to pay was the principal impediment to carrying out the works.
Although the court would allow the appeal, it would not go further and formally dismiss the claim against the appellants because the respondents should retain the formal possibility of continuing the proceedings to obtain a determination, in accordance with the judgment, of the scope of the appellants’ measured duty of care and whether they had breached it. That would require factual findings that the appeal court was unable to make.
Wilson Horne (instructed by Freeth Cartwright LLP) appeared for the first appellant; Sebastian Clegg (instructed by Forbes Solicitors, of Blackburn) appeared for the second appellants; Jeffrey Terry (instructed by Berrymans Lace Mawer, of Manchester) appeared for the respondents.
Eileen O’Grady, barrister