Nuisance — Flooding — Surface water — Measured duty of care — Local authority selling lower part of school playing field for new housing development — Developer negligently blocking culvert — Water from field flooding gardens of pre-existing houses on adjoining road — Whether local authority owing measured duty of care to abate nuisance as owners of higher land from which water flowing — Extent of duty
The respondents owned 1930s-built houses whose gardens backed onto the eastern boundary of a redundant school playing field owned by the second appellant council. Surface water from the field naturally drained down the slope of the field towards its south-east corner, in the direction of the respondents’ gardens. This had previously been caught by a drainage ditch and culvert connecting with the sewerage system. However, in 1993 a developer purchased the lower part of the field to construct a housing development for which it had planning permission. Following the construction of the new houses, the respondents’ gardens began to flood.
The respondents brought proceedings against the second appellants and the developer in nuisance and negligence, claiming damages and other relief. Allowing the claim, the trial judge found that: (i) the developer had, in the course of carrying out the new housing development, negligently filled in and blocked the lower part of the drainage ditch and culvert; and (ii) the second appellants were liable for breach of a measured duty of care to take reasonable steps to abate the resulting nuisance, consisting of water flooding from their land and causing damage to the respondents’ properties: see [2009] EWHC 744 (QB); [2009] 2 EGLR 53; [2009] 32 EG 70. In finding against the appellants, the judge took into account that any scheme to abate the nuisance required action on their part to construct the necessary remedial works, namely the installation of a catch pit on their retained land with drains running to a manhole. The second appellants appealed. The developer did not challenge the judgment in damages against it.
Held: The appeal was allowed. An occupier of land is under a duty of care with regard to hazards, whether natural or man-made, occurring on its land to remove or reduce such hazards to its neighbour. The scope of the duty will depend on the particular circumstances of each case, including the occupier’s knowledge of the hazard; the ease and expense of abatement and the ability to abate; the extent to which the damage was foreseeable; and whether it is fair, just and reasonable to impose a duty. It will be necessary to consider what steps it is reasonable to expect the occupier to take to abate the nuisance in all the circumstances. The judge had failed properly to address the scope of any measured duty of care owed by the second appellants. He had erred in regarding it as extending to a duty to construct and pay for the necessary drainage ditches and catch pit on their retained land. It was relevant that the second appellants were not responsible for causing the flooding although, as a result of the developer’s actions, the only way of removing the hazard was by carrying out remedial works on the second appellants’ retained land at considerable cost. The second appellants could reasonably be expected to allow the respondents access to that land free of charge to enable the catch pit and suitable drainage to be constructed and also to provide reasonable assistance in obtaining any consents necessary to enable the drainage to be laid. They were under a duty to co-operate in that solution, although whether the duty extended to carrying out the works themselves would depend on factual findings that the appeal court was unable to make. Their duty did not extend to meeting the entire cost of the works. In that regard, it was relevant that the second appellants’ duty was a continuing one, the scope of which might change in accordance with any change in circumstances. The establishment of liability on the part of the developer, giving the respondents an indisputable right to recover the entire cost of the works from that developer, was a powerful factor to take into account when determining the scope of the second appellants’ duty of care.
The court allowed the appeal. However, it did not formally dismiss the claim against the second appellants because, in circumstances, it remained unclear whether a breach of duty in failing sufficiently to co-operate or facilitate could be established or whether that would sustain a material damages claim given that the second appellants had co-operated in obtaining relevant consents for the remedial works and the principal impediment to carrying out the works had been the developer’s refusal to accept liability to pay. The court preserved the formal possibility of the respondents continuing the proceedings to obtain a determination, in accordance with the appeal court’s judgment and with the making of relevant factual findings, of the scope of the second appellants’ measured duty of care and whether they had breached it.
The following cases are referred to in this report.
Broder v Saillard (1876) LR 2 ChD 692
Caparo Industries plc v Dickman [1990] 2 AC 605; [1990] 2 WLR 358; [1990] 1 All ER 568, HL
Goldman v Hargrave [1967] 1 AC 645; [1966] 3 WLR 513;
[1966] 2 All ER 989; [1966] 2 Lloyd’s Rep 65, PC
Green v Lord Somerleyton [2003] EWCA Civ 198; [2004] 1 P&CR 33
Holbeck Hall Hotel Ltd v Scarborough Borough Council (No 2) [2000] QB 836; [2000] 2 WLR 1396; [2000] 2 All ER 705
Hurdman v North Eastern Railway Co (1878) LR 3 CPD 168, CA
Lambert v Barratt Homes Ltd (Manchester Division) [2009] EWHC 744 (QB); [2009] 2 EGLR 53; [2009] 32 EG 70
Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485; [1980] 2 WLR 65; [1980] 1 All ER 17; (1979) 78 LGR 100, CA
Sedleigh-Denfield v O’Callaghan [1940] AC 880; [1940] 3 All ER 349; (1940) 164 LT 72; 56 TLR 887, HL
This was an appeal by the second appellants, Rochdale Metropolitan Borough Council, from a decision of HH Judge Grenfell, sitting in the |page:60| Leeds district registry of the Technology and Construction Court, allowing a claim by the respondents, William Lambert, Elaine Lambert, Simon France, Julie Kelly and James Griffith, for damages for nuisance.
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) represented the respondents.
Giving judgment, Sir Anthony May P, said:
[1] This is the judgment of the court.
Introduction
[2] The respondents are or were respectively householders of 25, 27 and 29 Springfield Road in Middleton, Rochdale. These properties lie to the east of land that was formerly a school playing field owned by the second appellants, Rochdale Metropolitan Borough Council. The respondents’ gardens back onto the edge of the former playing fields on a line that runs approximately north to south and parallel with Springfield Road. The field slopes from north-west to south-east, and surface water naturally drains in that direction generally towards the line of the gardens of Springfield Road and towards the south-east corner of the former playing field. There was a man-made drainage ditch that ran along most of the western side of the field, starting to the north of the respondents’ properties and draining into a culvert at some point to the south of their properties. The culvert then carried the surface water beneath 1 and 3 Springfield Road, beneath and across Springfield Road itself to a manhole in the very south-eastern corner of the playing fields of St Leonard’s Primary School on the eastern side of Springfield Road. These drainage arrangements were historically satisfactory.
[3] In 1993, Rochdale sold the lower part of their playing field to the first appellant, Barratt Homes Ltd (Manchester Division), for housing development. Rochdale retained the upper part of the field. The northern boundary of the land acquired by Barratt abutted the eastern boundary approximately in line with the garden of 33 Springfield Road, two houses to the north of the respondents’ properties. Barratt carried out its housing development, completing it towards the end of 1996. In doing so, it built up the boundary land somewhat and constructed a wall or fence up against the eastern boundary of the former playing field. It thereby negligently filled in and blocked the lower part of the drainage ditch and culvert from approximately the level of 33 Springfield Road southwards. If there had been an intention to leave a sufficient gap for drainage between this fence and the boundary, that was not achieved. In the result, since late 1996 surface water from Rochdale’s retained northern part of the playing field, flowing naturally and to an extent directed eastwards by the northern boundary fence of Barratt’s development, accumulates in the south-east corner of the retained land and, on occasion, floods onto the respondents’ properties causing damage. So far as might be material, it may be that the water flows from Rochdale’s retained land onto part of the land acquired by Barratt before passing onto the respondents’ properties. In these proceedings, the respondents claim damages and other relief against both Barratt, which is plainly responsible for the flooding, and also against Rochdale, which equally plainly are not responsible, at least according to an ordinary understanding.
[4] Barratt contested the claims. However, HH Judge Grenfell, sitting in the Technology and Construction Court in Leeds, had no difficulty in finding it liable to the respondents in damages in a judgment delivered on 17 February 2009: [2009] EWHC 744 (QB)*. He also found Rochdale liable for breach of a measured duty to take reasonable steps to abate the nuisance comprised in the water flooding from their land to cause damage on the respondents’ land. Toulson LJ gave Rochdale permission to appeal, also granting them the necessary extension of time in which to do so.
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* Editor’s note: Reported at [2009] 2 EGLR 53
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Extension of time
[5] The respondents, through Mr Jeffrey Terry, seek to have Toulson LJ’s extension of time set aside, the respondents not having been heard on this topic before Toulson LJ made his order. Mr Terry said that Rochdale were well out of time in issuing their appellants’ notice and have no proper excuse for the delay. He said that a proper application of r 3.9 of the Civil Procedure Rules should not result in an extension. The judgment was given on 17 February 2009. The appellants’ notice was issued on 2 November 2009. Rochdale were not entirely inactive in the intervening months. The order following the judge’s judgment was not finalised until 3 November 2009 because Rochdale took the view both that the appropriate order was not clear and that [76] and [77] of the judgment did not give sufficient reasons for the conclusion that the judge reached. There was accordingly a hearing on 12 October 2009, at which the judge was invited to clarify his reasons, and to an extent during discussion he did so. The eventual order emerged from that hearing. We accept that there was a period of inactivity in the first two or three months after the 17 February 2009 judgment. There will also have been some general prejudice to the respondents, although it is questionable whether the relief works (see below) could have been carried out in the school summer holidays of 2009. We accept, however, as will appear, that there was some force in Rochdale’s contention that the judgment, if it were to stand, needed clarification and elaboration. In the result, we do not set aside the extension of time.
Relief works
[6] Barratt has disabled itself by selling its development from carrying out works to enable the water to flow away by its former course. The practical solution of the intermittent flooding problem has been developed over the years, so that it is now, so far as we are aware, practical and capable of being carried out. It requires the construction of a catch pit in the south-east corner of Rochdale’s retained land; the construction of a drain from the catch pit beneath the rear gardens of 31 to 25 Springfield Road, the drain then running beneath no 25 and across Springfield Road at that level into St Leonard’s school playing fields to a manhole. The drain would then turn south close to the boundary of that playing field to reach the manhole in its south-west corner into which the drain that Barratt blocked used to flow by its former route. This scheme requires the consents of Rochdale for the catch pit, the house owners of 33 to 25 Springfield Road, and of Rochdale again as highway authority and proprietor of St Leonard’s School. It may also require the consent of United Utilities plc, into whose sewer the water would by its new path flow. We understand that these consents are all, subject perhaps to United Utilities, available. As to United Utilities, it is in essence the same water draining into the same sewer, but by a different route. We were told that the revised estimate of the cost of these works is £85,000, which is the total of the sums that Barratt (£55,000) and Rochdale (£30,000) have paid on account pursuant to the judge’s order of 3 November 2009. The work on the land of St Leonard’s School needs to be carried out during the school summer holidays.
[7] Now that Barratt has been held liable and is not appealing the judgment against it, the work must surely be carried out during the summer holidays of 2010, whatever the outcome of this appeal. It is surely senseless to prolong this expensive litigation when a viable solution and the means of paying for it are available.
Proceedings
[8] The bones of the relief scheme that has now been developed had been worked out by 14 August 2001, when the respondents’ solicitor wrote to Barratt and Rochdale, shortly describing an engineering proposal essentially such as we have described. It was said that finance was required from Barratt and/or Rochdale and the approval and assistance of Rochdale was sought. The letter to Rochdale required them (together with Barratt) to be financially responsible for resolving the drainage problem and the subsequent damages suffered to “our principals insureds’ properties”. It is of some relevance that the respondents were represented by insurers and presumably still are. We are not aware that this letter received a contemporary substantive |page:61| response from Rochdale, but the evidence and documents before the judge (and this court) were and are palpably incomplete.
[9] The proceedings were started on 29 October 2002. The particulars of claim alleged that Barratt was negligent, which Barratt denied. It maintained its denial until the judge found against it. As we have said, it does not appeal that decision. The case against Rochdale was that although they were admittedly not responsible for blocking the culvert, they came under a measured duty of care to take reasonable and appropriate steps to prevent water originating on the retained undeveloped land from accumulating in the blocked culvert and then spilling out onto the respondents’ properties in a manner and to an extent that it would not have done had the culvert not been blocked. The pleading alleged that Rochdale knew of the problem by December 1998, or January 1999 at the latest. It referred to the letter of 14 August 2001. It was then said that Rochdale had failed or refused to agree to undertake any reasonable or appropriate steps to prevent water from their retained land from spilling onto the respondents’ properties. Rochdale appeared to be unwilling to agree to a pleaded proposal for relief works equivalent to that in the letter of 14 August 2001. Rochdale were alleged to be in breach of their measured duty of care and the respondents, it was said, were entitled to a mandatory injunction requiring Rochdale to abate the nuisance and to damages equivalent to those claimed against Barratt. Thus, although the pleading did not explicitly spell out the scope of the measured duty of care, it was obviously by inference alleged that its scope extended to obliging Rochdale themselves to carry out the necessary relief works at their own expense. That was, we think, surprising, when it was, as has now been judicially established, Barratt that was negligently responsible for causing the overflow of water.
[10] The defence denied the allegation that Rochdale were under a measured duty of care. This is unsurprising when the scope of the alleged duty was as wide as we have described.
[11] Much time passed before the questions of liability came before the judge for trial. We have an incomplete evidential picture of all that took place in these years, but we do know that Rochdale were not entirely inactive or unco-operative. In particular, correspondence in April 2006 shows that Rochdale’s solicitor had been corresponding with the owner of 33 Springfield Road to secure his consent to work on his land to effect relief works, and a solicitor’s attendance note of 5 September 2006 showed that consents were obtained or sought from others. That attendance note recorded a view of the respondents’ solicitor that there was no prospect of agreeing any form of settlement with Barratt in respect of liability until it had a definite scheme capable of being put into place and costings. Little progress was likely to be made with Barratt until it had a firmer idea of what scheme could be put in place and what it would cost. A following letter of 12 September 2006 expressed the respondents’ solicitor’s view that there was little point in proceeding to obtain consent from the governors of the school and from United Utilities until the scheme had been formally costed and it was known that it could be put in place subject to appropriate consents. Likewise, mediation was regarded as premature. Rochdale’s solicitor replied to the effect that they were liaising with their clients regarding the consents from United Utilities and the governors of the school.
[12] As we say, we regard this as an incomplete picture of what was happening in the years before the case came on for trial. However, we do know that Rochdale was in some respects at least co-operating with the respondents.
Judge’s judgment
[13] The judge held Rochdale liable on the claim advanced against them. He expressed his essential reasoning in [75] to [78] of his judgment as follows:
75. I derive the following principle from the authorities, in particular, paragraph 29 of Laws LJ’s judgment in Arscott, that the owner of higher land does come under a measured duty of care of the kind established in Leakey, if he becomes aware that even naturally draining water from his land is causing damage to a lower owner. Such was the case following Rochdale’s knowledge of the flooding problem as from December 1998. It was foreseeable on the part of Rochdale that, unless the nuisance caused by the obstructed water path was abated, damage would continue to occur as a result to the claimants’ land.
76. The measured duty of care has to be considered in the light of the factors that any scheme to abate the nuisance required action on Rochdale’s part to construct the necessary drainage ditches and catch point for the water draining from the retained land. That in effect was the missing piece of the “jig saw”, because the owners of Nos 33, 31, 29, 27 and 25 Springfield Road, had all consented to the proposed culverted pipe passing through their land. The claimants had no power to enable the scheme to be completed. On the other hand, Rochdale has throughout owned the land where the water arises; it sold the land for development; it failed to follow through the concerns in respect of drainage which, as I have found, were expressed to Barratt at the time of the sale; there is no solution except through work done on Rochdale’s land. I agree with Mr Terry that, in terms of the measured duty of care, the “scales tip in one direction.”
77. In failing actively to co-operate in such a solution, Rochdale appears to have adopted a similar position to that of the National Trust in Leakey by maintaining that it was not under a duty to abate a naturally occurring nuisance. In my judgment, that was a mistaken stance. Mr Clegg has, however, helpfully indicated that Rochdale would not object to the solution of creating a catch pit on its land; that it would be unreasonable to refuse.
78. It follows that I reject Mr Clegg’s submission based on Palmer v Bowman [2000] 1 WLR 842 and Green v Somerleyton [2003] EWCA Civ 198 and find Rochdale to have been in breach of their measured duty of care in failing to abate the nuisance, albeit that the primary cause of the nuisance was Barratt’s obstruction of the water path.
[14] Mr Sebastian Clegg, for Rochdale, made what we regard as a valid criticism of this reasoning. He said that the judge did not spell out or explain the scope of the measured duty of care, and appears to have regarded Rochdale as being in breach simply by failing to acknowledge that they were under a duty of whatever scope. Inferentially, however, the judge, in finding that Rochdale were in breach of duty for failing to abate the nuisance, must be taken to have held that the duty extended to requiring Rochdale themselves to carry out the necessary relief works and to pay for them irrespective of financial contribution from Barratt, which was primarily responsible. That this was the tenor of the judge’s decision appears from the discussion with him at the hearing on 12 October 2009 and from the fact that he ordered Rochdale to pay a substantial sum (£30,000) on account of damages.
Measured duty of care
[15] The expression “measured duty of care” derives, we believe, from the opinion of the Privy Council given by Lord Wilberforce on appeal from the High Court of Australia in Goldman v Hargrave [1967] 1 AC 645. In that case, a Western Australian red gum tree on the appellant’s land was struck by lightning and caught fire. The appellant had the tree cut down, but took no reasonable steps by spraying the fire with water to prevent it from spreading, believing that the fire would burn itself out. The fire spread to the respondent’s property and caused damage. It was held that an occupier of land is under a general duty of care in respect of hazards, whether natural or man-made, occurring on his land to remove or reduce such hazards to his neighbour. The existence of the duty is based on the knowledge of the hazard, the ability to foresee the consequences of not checking or removing it and the ability to abate it by taking reasonable measures. Lord Wilberforce said, at p662, having referred to authorities and textbooks, that they endorsed the development towards a measured duty of care by occupiers to remove or reduce hazards to their neighbours. At p663, Lord Wilberforce asked what was the standard of the effort required and what was the position with regard to expenditure. The law must take account of the fact that the occupier has had the hazard thrust on him through no seeking or fault of his own. He may be of modest means in respect of the magnitude of the hazard or as compared with those of his threatened neighbour. The standard ought to be what is reasonable to expect of him in his individual circumstances.
[16] Goldman was applied in Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485, where an unstable mound of earth on the defendant’s land threatened the plaintiff’s property. Megaw LJ said, at p526, that the defendants’ duty was to do |page:62| that which was reasonable for him to do. The criteria of reasonableness included what the particular defendant could be expected to do by having broad regard, where a serious expenditure of money is required, to his means. If a risk can be readily overcome or lessened, the defendant will be in breach of duty if he does nothing or too little. However, if the only remedy is substantial and expensive works, it might well be that the landowner would discharge his duty by giving the neighbour permission to come onto his land to do agreed works at the neighbour’s expense or on the basis of a fair sharing of expense.
[17] The concept of the measured duty extending to a duty to do or facilitate what is reasonable was considered and explained by the Court of Appeal in Holbeck Hall Hotel Ltd v Scarborough Borough Council (No 2) [2000] QB 836. The plaintiffs’ hotel had to be demolished when a massive landslip on the defendants’ land caused loss of support. It was held that the owner or occupier of land owed a measured duty of care to prevent danger to a neighbour’s land from lack of support owing to natural causes, where the owner or occupier knew, or was presumed to know, of the defect or condition on his land giving rise to the danger, even though he had not created it and where it was reasonably foreseeable that the defect or condition would, if it were not remedied, cause damage to the neighbour’s land. The scope of the duty depended not only on the defendant’s knowledge of the hazard, the ease and expense of abatement and his ability to abate it but also on the extent to which the damage that in fact eventuated was foreseeable, and whether it was fair, just and reasonable in the circumstances to impose a duty. Justice did not require that the defendant should be held liable for damage that was vastly more extensive than that which was foreseeable. Stuart-Smith LJ derived the concept that the scope of the measured duty of care should have regard to what is fair, just and reasonable from Caparo Industries plc v Dickman [1990] 2 AC 605: see p862. In the case before the court, Stuart-Smith LJ did not consider that it was fair, just or reasonable to impose liability for damage that was greater in extent than anything that was foreseeable, especially where the defects existed as much on the plaintiffs’ land as on the defendants’. He also said that the scope of the duty may be limited by other factors than foreseeability. It was not necessarily incumbent on someone in the defendants’ 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 such risks as they were aware of or ought to have foreseen and sharing such information as they had acquired relating to it.
[18] In our judgment, there is much force in Mr Clegg’s submission, on behalf of Rochdale, that the judge failed properly to address the scope of any measured duty of care that Rochdale had in the circumstances of this case. He regarded it as extending to a duty themselves to construct, and presumably pay for, the necessary drainage ditches and catch pit on their retained land. This, according to the judge, was the missing piece in the jigsaw. According to Mr Terry, on behalf of the respondents in submission to this court, Rochdale’s breach of duty consisted in their formal denial or failure to acknowledge a duty of the scope contended for in the letter of 14 August 2001 and the particulars of claim, which asserted a duty requiring Rochdale to carry out and pay for relief works that went beyond drainage and a catch pit on the retained land. He submitted that the judge had been right to determine that Rochdale’s denial, which he said they maintained into the trial, that they were under any duty of care required the judge to find in the respondents’ favour by rejecting that extreme position, and that that is all the judge did. The judge did not proceed to quantify the extent of Rochdale’s liability. We do not consider that this is all that the judge did, for the reasons that we have explained. He not only rejected a contention that Rochdale were under no duty; he found by clear inference that the scope of their duty positively extended to carrying out and paying for the relief scheme, or substantial parts of it. We note that the court had ordered, on 4 February 2008, that there should be a split trial with issues of liability being tried before quantum. That required more than a finding that Rochdale were in breach of a duty of undefined scope. The judge in fact held in substance that Rochdale were in breach of a duty of the scope contended for in the particulars of claim.
[19] It is important in this context to bear in mind that whether a measured duty of care of the kind recognised in Goldman and later cases sounds in nuisance or negligence, it is a duty that is owed by one occupier of land to another. In each case, therefore, it is necessary to consider what steps it is reasonable to expect the party on whose land the hazard has arisen to take in order to prevent damage to other land liable to be affected by it. Moreover, the duty to act, if it arises, arises as soon as the landowner becomes or should have become aware that the hazard has come into existence. In the present case, that requires one to consider the relationship between Rochdale and the individual respondents at the time it became apparent that flooding of their properties was likely to be a regular occurrence. The fact that the hazard was and was known to have been created by Barratt’s blocking of the ditch on the land that it then occupied is one of the factors that has to be taken into account in deciding the scope of Rochdale’s duty, but unless it was also clear that the respondents had a good cause of action against Barratt to recover the cost of any relief works, we do not think that it would have been possible to take that fact into account as being established when assessing the scope of Rochdale’s duty at that time. It would, however, have been clear from 1998 or 1999 that Barratt’s works were the cause of the flooding.
[20] It is apparent from both Goldman and Leakey that the scope of the duty of care will depend on the particular circumstances of the case. In Leakey, Megaw LJ explained the position as follows, at pp526E-527A:
So here. The defendant’s duty is to do that which it is reasonable for him to do. The criteria of reasonableness include, in respect of a duty of this nature, the factor of what the particular man not the average man can be expected to do, having regard, amongst other things, where a serious expenditure of money is required to eliminate or reduce the danger, to his means. Just as, where physical effort is required to avert an immediate danger, the defendant’s age and physical condition may be relevant in deciding what is reasonable, so also logic and good sense require that, where the expenditure of money is required, the defendant’s capacity to find the money is relevant. But this can only be in the way of a broad, and not a detailed, assessment; and, in arriving at a judgment on reasonableness, a similar broad assessment may be relevant in some cases as to the neighbour’s capacity to protect himself from damage, whether by way of some form of barrier on his own land or by way of providing funds for expenditure on agreed works on the land of the defendant.
Take, by way of example, the hypothetical instance which I gave earlier: the landowner through whose land a stream flows. In rainy weather, it is known, the stream may flood and the flood may spread to the land of neighbours. If the risk is one which can readily be overcome or lessened for example by reasonable steps on the part of the landowner to keep the stream free from blockage by flotsam or silt carried down, he will be in breach of duty if he does nothing or does too little. But if the only remedy is substantial and expensive works, then it might well be that the landowner would have discharged his duty by saying to his neighbours, who also know of the risk and who have asked him to do something about it, “You have my permission to come on to my land and to do agreed works at your expense”; or, it may be, “on the basis of a fair sharing of expense.”
[21] Rochdale were not in the slightest degree responsible for the cause of the flooding, but, as a result of Barratt’s actions, the only way of removing the hazard that resulted from the natural accumulation of rainwater at the south-eastern corner of the retained land was to construct a catch pit on the retained land and pipe the water to the sewer by a different route. The cost of that work was obviously likely to be considerable. This was not a case such as Sedleigh-Denfield v O’Callaghan*, therefore, where a simple and inexpensive act on the part of the occupier of the land on which the hazard arose could have abated the nuisance. Given the nature of the retained land, Rochdale could, in our view, reasonably have been expected to allow the respondents access to it free of charge to enable the catch pit to be constructed and could also have been expected to provide reasonable assistance in providing, or assisting the respondents to obtain, any consents necessary to enable the drainage to be laid. |page:63|
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* Editor’s note: Reported at [1940] AC 880
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[22] As a local authority, Rochdale might be expected to have access to funds far in excess of those available to the individual respondents, but it is well known that most local authorities are under a degree of financial pressure. Moreover, their resources are held for public purposes and are not generally available for the benefit of private citizens. The likelihood is that, as householders, the residents were insured against damage to their properties by flooding, and when considering their ability to carry out and bear the cost of the work required to safeguard those properties we see no reason to ignore the possibility of their obtaining the necessary funds from their insurers (although it is not necessary to reach any final conclusion on the question in this case). Nor can one ignore the value of any rights that they may have had to recover the cost from Barratt, in so far as the position can be ascertained with reasonable confidence. Some of these factors may have been difficult to assess at the time Rochdale’s duty first arose, but we are far from persuaded that it would have been right at any stage to impose on Rochdale a duty to undertake and pay for any part of the necessary work.
[23] However, we are not presently concerned with the original scope of Rochdale’s duty but with the current position. Although the nuisance continued, Rochdale were under a continuing duty of care, the scope of which may vary in accordance with any change in circumstances. By the time the judge had to reach a decision on the scope of Rochdale’s present duty, he was also in a position to determine that Barratt is liable to the householders in respect of the nuisance. Barratt has not sought to challenge that part of his judgment. Accordingly, the fact that the respondents have an indisputable right to recover from Barratt the entire cost of the work is a powerful factor to take into account when determining the current scope of Rochdale’s duty of care. In those circumstances, we do not think that it would be fair, just or reasonable now to impose on Rochdale a duty to carry out and pay for any part of the necessary relief works.
[24] In our judgment, therefore, the judge’s analysis was erroneous and his conclusion cannot stand. He held that Rochdale were in breach of their measured duty of care for failing to abate the nuisance ([78]) and in failing actively to co-operate in the solution ([77]) by failing to construct the necessary drainage ditches and catch pit: [76]. This materially overstated the scope of Rochdale’s measured duty on the facts of this case.
[25] We do not consider that Rochdale were under no duty. Speaking generally, they were plainly 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 the duty would extend to carrying out those works themselves or to carrying out the other work outside the retained land is something of an open question, which the facts found by the judge do not enable this court to determine. The duty did not extend, in our view, to obliging Rochdale to meet the entire cost of the relief works. It is plain from information that we do have and to which we have referred that Rochdale did over the years co-operate in the matter of obtaining consents. It is 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 Barratt was not accepting its liability to pay, and when this was the principal impediment to the carrying out of the works.
[26] We note Mr Terry’s submission that Rochdale did not adopt at trial an intermediate position accepting that they were under some duty and explaining its extent. We equally note that the respondents’ overstated case did not contemplate an intermediate position whereby Rochdale had a duty of co-operation and facilitation not extending to their having to pay for the relief works. We note also that, in submitting that the appeal should be allowed and the claim against Rochdale dismissed, Mr Clegg, on instructions, accepted that Rochdale would at least be obliged in that event to facilitate the carrying out of a reasonable relief scheme involving the construction at no expense to Rochdale of a catch pit on their retained land.
[27] By their amended respondents’ notice, the respondents contend that Rochdale were liable for the concentrated flow of water on their land under the principle in Broder v Saillard (1876) LR 2 ChD 692 and Hurdman v North Eastern Railway Co (1878) LR 3 CPD 168. This was argued before the judge, but he did not deal with it. It is submitted that the drainage ditch is an artificial construction that causes water to discharge in a concentrated flow in its south-eastern corner. That is what causes the flooding onto the respondents’ land. It is a nuisance and Rochdale are liable irrespective of fault. Mr Terry referred to and relied on para 21-37 of Clerk & Lindsell on Torts (19th ed) under the heading “Construction work”, to the effect that “if anyone by artificial erection on his own land causes water, even though arising from natural rainfall only, to pass into his neighbour’s land, and thus substantially to interfere with his enjoyment, he will be liable to an action at the suit of him who is so injured”. It is, we think, stretching a point to attribute to Rochdale as an artificial erection the upper part of the drainage ditch that remained on their retained land. As Jonathan Parker LJ said in Green v Lord Somerleyton [2003] EWCA Civ 198*, in [81], in the context of the English landscape a distinction between “natural” and “artificial” features is an inherently uncertain foundation on which to rest a decision as to the existence of liability in nuisance. However that may be, we are clear that it was not the construction of this part of the ditch that caused the flooding. The flooding was caused because Barratt blocked the lower part of the ditch and the culvert. We therefore reject the contention in the amended respondents’ notice.
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* Editor’s note: Reported at [2004] 1 P&CR 33
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[28] For these reasons, we allow the appeal. We do not go further and formally dismiss the claim against Rochdale because we consider that the respondents should retain the formal possibility of continuing the proceedings before the judge to obtain a determination, in accordance with this judgment, of the scope of Rochdale’s measured duty of care and of whether they were in breach of it. That would require factual findings that this court is unable to make. We strongly urge the parties, however, including Barratt, to reach a sensible accommodation in the light of this judgment; to avoid the need to return to the judge with the inevitable additional wasted expense that that would entail; and to enable the necessary relief works to take place during the summer school holidays of 2010.
Appeal allowed.
