Defendant statutory water and sewerage undertaker failing to provide adequate drainage – Consequent flooding causing damage to claimant’s property – Whether defendant in breach of Article 8 of First Protocol of European Convention on Human Rights – Claim allowed
The claimant owned and lived at 92 Old Church Lane, Stanmore, Middlesex. The property was a substantial family house with a front garden and a large rear garden which lay within a residential area in a street of individually built houses. In June 1992 the property was significantly affected by flooding. Thereafter the property became increasingly susceptible to flooding and backflow of foul water, to the extent that only 15 minutes of heavy rainfall or some hours of steady drizzle were sufficient to cause flooding. The sewers were the property of the defendant, which was the statutory undertaker responsible for their operation and maintenance. Although it was practicable for the defendant to carry out works to remove the risks of flooding from the claimant’s property, the work had not been carried out because the necessary finance had not been made available.
The claimant commenced proceedings alleging that the defendant was liable both at common law and for breaches of the European Convention on Human Rights. The claimant sought an injunction and damages, contending that the defendant was: (i) liable for non-feasance in neglecting to perform its statutory duty to make an effectual system of drainage; (ii) liable under the principle in Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] 1 QB 485, namely that an occupier owes a general duty to a neighbouring occupier, in relation to a hazard arising on the land, to take steps that are reasonable in all the circumstances to deal with the hazard; (iii) in breach of Article 8 of the Convention, which grants the right to respect for private life, family life and one’s home, and is not to be interfered with by a public authority except in accordance with the law and if necessary in a democratic society; and (iv) the First Protocol of Article 1, which grants the right to peaceful enjoyment of possessions.
Held: The claim was allowed.
1. A statutory drainage undertaker was not liable to a person in its area who suffered damages by flooding where the claim was based upon failure on the part of the undertaker to carry out works to fulfil its statutory duty of drainage of the area. That was so whether the cause of action was nuisance, the principle in Rylands v Fletcher (1868) LR 3 HL 330, or breach of statutory duty. That also covered the case of negligent non-feasance (see Glossop v Heston and Isleworth Local Board (1879) 12 ChD 102). Leakey did not affect the existing law in relation to the liability of drainage undertakers in cases of non-feasance of their statutory duties of drainage. The policy of the Water Industry Act 1991 was to not create statutory liability to pay compensation, therefore it excluded the existence of a common law duty of care. Accordingly, the claimant had no remedy under the law as it existed before the passing of the 1998 Act.
2. The defendant’s failure to carry out works to bring to an end to the repeated flooding of the claimant’s property constituted an interference with the exercise of the claimant’s rights under Article 8 of the Convention, notwithstanding that the complaint was of inactivity (see Guerra v Italy (1998) 26 EHRR 357). Furthermore, the claimant had been deprived of the peaceful enjoyment of his possessions contrary to Article 1 of the First Protocol. The infringement of his human rights would be justified if a system leading to that result and protecting the rights of others was necessary in order to strike a fair balance between the competing interests of the claimants and of the other customers of the defendant, allowing the defendant a margin of discretion. The burden lay on the defendant to provide that justification, and it had failed to do so. The fact that the defendant’s current system did not obviously fail to strike a fair balance was insufficient.
Peter Harrison (instructed by South & Co) appeared for the claimant; Michael Daiches (instructed by the solicitor to Thames Water Utilities Ltd) appeared for the defendant.
Thomas Elliott, barrister
