Negligence — Nuisance — Rule in Rylands v Fletcher — Claims by associated building and development companies against local planning authority and a number of local houseowners — Flooding — Allegations of obstructing flow of water — Sewer problems — Applications by defendants to strike out claims under Ord 18, r19 and under the inherent jurisdiction of the court
properties affected by this dispute were situated in a valley which falls in a
northerly direction from Sevenoaks Common to an old railway cutting and tunnel —
The sides of the valley are of impervious or semi-impervious rocks and surface
water drains down from south to north — The formation of causeways or
embankments for building houses for some of the defendants had obstructed the
natural flow of water down the valley — As a result, part of the housing
development became continuously waterlogged and flooding took place — Plans for
sewers to drain the valley met with difficulties and were abandoned
plaintiffs in the action, which came before Judge Newey QC at a preliminary
stage, were Ryeford Homes Ltd, a building company, and Mewburn Property Co Ltd,
an associated development company — The plaintiffs sued the local planning
authority and fourteen individual defendants, the owners of detached houses in
the area where the troubles occurred — The claims made by the plaintiffs, which
included loss of development value and loss of profits, were at first sight
formidable — They sued the defendant planning authority for alleged negligence
in granting planning permission to build houses on raised land and for failing
to ensure that the houses were built in precise accordance with the permission
granted — To this they had added, for good measure, a further claim in
negligence and claims in nuisance, breach of statutory duty under section 31 of
the Public Health Act 1936, Rylands v Fletcher and trespass — The plaintiffs
claimed against the individual houseowner defendants on the grounds of nuisance
and negligence for obstructing the flow of water from the higher land — An
injunction and damages were sought against all defendants
judgment of Judge Newey was concerned with the examination in detail of
applications by the defendants to strike out the plaintiffs’ statement of claim
under the various headings in Ord 18, r19 and under the inherent jurisdiction
(which may still be exercised apart from the rule) — The judge in fact struck
out most of the claims but decided that two against the local planning
authority must go to trial
struck out the following claims against the planning authority: (1) a claim
based on alleged negligence in 1963 in granting planning permission; (2) a
claim based on the alleged failure of the planning authority to ensure that the
defendants’ houses were sited in precise accordance with the planning
permission (a claim which was probably in any case statute-barred); (3) a claim
for the removal of earth, which in fact had been laid unlawfully by the
claimant, Ryeford Homes Ltd, itself (this claim was said by the judge to be in a
very real sense an abuse of the process of the court); (4) a claim on the
ground of negligence resulting in economic loss to the plaintiffs through
alleged breach of statutory duty in connection with sewers — The judge also
struck out claims against the individual defendants based on alleged nuisance
or negligence in obstructing the flow of water from higher ground — The
defendants had raised ground levels only in order that their houses could be
built — They had no intention to injure anybody: the law on this point had been
clearly set out by Windeyer J in the Australian case of Gartner v Kidman
held, however, that the plaintiffs’ claims against the local authority based on
nuisance or the rule in Rylands v Fletcher must go to trial — These were claims in respect of sewers
— It was by no means certain that the authority’s statutory powers afforded
immunity under the rule in Rylands v Fletcher, and they certainly had no power to
create a nuisance — It may be mentioned here that, although Sevenoaks District
Council has been referred to as the planning authority, some of the claims
against the council were based on its functions in other capacities than
planning
was that the judge struck out all the plaintiffs’ claims against the individual
defendants and all the claims against the local authority except those based on
nuisance and Rylands v Fletcher, which were ordered to go for trial
The following
cases are referred to in this report.
Anns v Merton London Borough Council [1978]
AC 728; [1977] 2 WLR 1024; [1977] 2 All ER 492; (1977) 75 LGR 555; [1977] EGD
604; 243 EG 523 & 591, [1977] 2 EGLR 94; [1977] JPL 514, HL
D & F Estates Ltd v Church Commissioners for
England [1988] 3 WLR 368; [1988] 2 All ER 992; [1988] 2 EGLR 263, HL
Gartner v Kidman (1961) 108 CLR 12; (1962)
36 ALJR 43
Gibbons v Lenfestey (1915) 84 LJPC 158
Hedley Byrne & Co Ltd v Heller & Partners Ltd
[1964] AC 465; [1963] 3 WLR 101; [1963] 2 All ER 575; [1963] 1 Lloyd’s Rep
485, HL
Hill v Chief Constable of West Yorkshire [1988]
2 WLR 1049; [1988] 2 All 238, HL
Home Brewery Co Ltd v William Davis & Co
(Leicester) Ltd [1987] QB 339; [1987] 2 WLR 117; sub nom Home Brewery
plc v William Davis & Co (Loughborough) Ltd [1987] 1 All ER 637
Lyons v F W Booth (Contractors) Ltd [1982]
EGD 1050; 262 EG 981, [1982] 1 EGLR 147
Perry v Tendring District Council [1985]
1 EGLR 260; (1984) 30 BLR 118; 3 Con LR 74
Pirelli General Cable Works Ltd v Oscar Faber &
Partners [1983] 2 AC 1; [1983] 2 WLR 6; [1983] 1 All ER 65; [1983] EGD 889;
(1982) 265 EG 979, [1983] 1 EGLR 135, HL
Polk (RL) & Co (Great Britain) Ltd v Edwin Hill & Partners
[1988] 1 EGLR 142; [1988] 18 EG 71; (1988) 41 BLR 84
Pride of Derby and Derbyshire Angling
Association Ltd v
British Celanese Ltd [1953] Ch 149; [1953] 2 WLR 58; [1953] 1 All ER
179; (1953) 51 LGR 121; [1953] JPL 292, CA
Rondel v Worsley [1969] 1 AC 191; [1967]
3 WLR 1666; [1967] 3 All ER 993, HL
Ronex Properties Ltd v John Laing Construction
Ltd [1983] QB 398; [1982] 3 WLR 875; [1982] 3 All ER 961, CA
Rylands v Fletcher (1868) LR 3 HL 330, HL
Simaan General Contracting Co v Pilkington Glass Ltd (No
2) [1988] 2 WLR 761; [1988] 1 All ER 791, CA
Smeaton v Ilford Corporation [1954] Ch
450; [1954] 2 WLR 668; [1954] 1 All ER 923; (1954) 52 LGR 253, CA
Yuen Kun Yeu v Attorney-General of Hong Kong [1988]
AC 175; [1987] 3 WLR 776; [1987] 2 All ER 705, PC
The plaintiffs
in the action were Ryeford Homes Ltd and Mewburn Property Co Ltd. The
defendants were Sevenoaks District Council and 14 individual defendants, who
were the owners of detached houses at 9, 11, 13, 17, 19 and 21 Crownfields,
built in accordance with permission given by the predecessors of the present
Sevenoaks District Council.
N C J Dennys
(instructed by Franks Charlesly & Co) appeared on behalf of both plaintiff
companies; M Taverner (instructed by Thomson Snell & Passmore, of
Sevenoaks, Kent) represented the first defendant, Sevenoaks District Council; V
Chapman (instructed by Vizards) represented the individual defendants.
Giving
judgment, JUDGE JOHN NEWEY QC said: In this case the first plaintiffs, Ryeford
Homes Ltd, are builders, and the second plaintiffs, Mewburn Property Co Ltd,
are developers, whose shares are nearly all owned by Ryeford. Since 1972
Mewburn have owned an unused plot of land north of The Dene and south of the
western part of Crownfields in Sevenoaks, Kent. Between 1972 and 1976 Ryeford
laid out The Dene and, to the east of it, Bourchier Close and had planned to
build on what I will call the ‘Mewburn land’.
The first
defendants are the Sevenoaks District Council who, under the Local Government
Act 1972, which came into force on April 1 1974, are successors to the former
Sevenoaks Urban District Council. The urban district council exercised powers
of planning control by delegation from the Kent County Council. The urban
district council had power under section 15 of the Public Health Act 1936 to
construct public sewers and under section 16 of the same Act to adopt existing
sewers as public sewers, but they were not under a duty to do so; section 31
provided that they should ‘so discharge their function . . . as not to create a
nuisance’. The Water Act 1973 transferred powers in respect of sewage to water
authorities, but the council exercise them as agent for the appropriate
authority.
The remaining
defendants are owners of detached houses, numbered 9, 11, 13, 17, 19 and 21 Crownfields,
which were built with detailed planning permission granted by the urban
district on January 11 1963. The houses were built partly on made-up ground and
were not sited precisely in accordance with the permission.
Assumed facts
The Dene, the Mewburn land and the part
of Crownfields where the houseowner defendants live are situated in a valley
which falls in a northerly direction from Sevenoaks Common to a railway cutting
between the portals of a railway tunnel, on the line between Tonbridge and Sevenoaks
Stations. The cutting and tunnel were made in about the middle of the last
century.
The sides of
the valley are of impervious and semi-impervious rocks and, although the valley
does not contain a stream, surface water drains from south to north down it.
The valley is helpfully shown on an agreed plan, which is an enlarged version
of one attached to the further and better particulars of the statement of
claim.
Gradual
development of southern parts of the valley between Oak Lane, a road with which
The Dene connects, and Ashgrove Road, have increased the run-off of surface
water. At Oak Lane an old 24-in sewer running from the south meets an old 12-in
sewer, which runs north, on the east side of The Dene, beneath the carriageway
of a road called Valley Drive, and the material part of Crownfields, and a
private road or footpath, to reach the garden of Hill House, which is to the
east and above the railway cutting, where it discharges.
Until the
early 1960s the valley north of Oak Lane was a farm but, being close to the
centre of Sevenoaks, it must obviously have been attractive for development.
With hindsight it seems a pity that at that time the urban district council did
not prepare a comprehensive layout for the development of the valley, with
appropriate sewers.
The formation
of ’causeways’ or embankments for nos 9, 11, 13 and possibly 17 Crownfields
from (according to the statement of claim) 1964, had the effect of obstructing
the natural flow of water down the valley. Nos 19 and 21 were built to the east
side of the valley, but all the new houses had gardens and fences across it.
Previously,
flooding had occurred from time to time in Oak Lane but, as the result of the
Crownfields development, the Mewburn land was often water-logged and in 1968 it
flooded.
In 1972 the
urban district council planned a new system of sewers which would drain the
valley and provide an outlet from it to the Bradbourne Lakes about a mile and a
half to the north, and then to the River Darenth. In 1976, as the first phase
of this scheme, the urban district council laid a 33-in sewer from Oak Lane,
beneath the carriageway of The Dene, to the Mewburn land, where it was blocked
off.
British Rail,
who had previously raised no objection to soakaways in the valley, became
concerned about any increase in their number after a railway tunnel had
collapsed in France due, apparently, to underground water. Dwellings in The
Dene were, therefore, as the statement of claim states, ‘as a temporary
measure’ connected to the 33-in sewer.
In 1976 also,
Ryeford, at the instance of the urban district council, connected the 12-in
sewer at the junction of The Dene and Bourchier Close to the 33-in sewer. Water
backed up in the 33-in sewer and escaped through an inspection chamber on to
the Mewburn land and also at various manholes in The Dene.
Because of the
obstruction of the valley, water from the 33-in sewer, and ground water
generally, was unable to flow north, the Mewburn land was almost continually
waterlogged, and in 1980 it and parts of The Dene were flooded.
In 1979,
Ryeford spread 7,000 cubic yards of earth on the Mewburn land so as to raise
its level ready for development. They did
notice requiring them to remove the earth, were prosecuted in the Sevenoaks
magistrates’ court and fined. They then removed the earth at considerable
expense to themselves.
In 1984, the
water authority decided that because of the very high cost of extending the
33-in sewer to Bradbourne Lakes, and because they considered that only a small
number of dwellings were involved, the Bradbourne scheme should not proceed.
Mewburn have on several occasions applied to the council unsuccessfully for
planning permission to build houses on their land but, because of surface water
problems, have been refused. British Rail are now, apparently, not as opposed
to soakaways as they previously were.
Plaintiffs’ claim
On October 23 1985, Ryeford and Mewburn
issued a writ against the council and the owners of the Crownfields houses and,
almost 12 months later, they delivered a statement of claim in the action.
Ryeford and
Mewburn allege against the council negligence in granting planning permission
for the Crownfields houses to be built on raised land and in failing to ensure
that they were built in accordance with the permission granted. They also
allege negligence, nuisance, breach of statutory duty under section 31 of the
1936 Act, breach of duty under Rylands v Fletcher (1868) LR 3 HL
330 and trespass, all in connection with the sewers.
Ryeford and
Mewburn allege against the Crownfields owners nuisance and negligence in
obstructing the flow of water from the Mewburn land on to the Crownfields land.
The statement
of claim claims an injunction against all the defendants to restrain them from
continuing nuisances, an indemnity against any claim by British Rail, and
damages. The damages claimed are diminution in development value, loss of
profit due to inability to complete The Dene development, ‘diminution of value
of possessory title’ and cost of removing the 7,000 cubic yards of soil.
Presumably the alleged loss of development value and reduction in the value of
the property are claimed by Mewburn, and loss of builders’ profit and costs of removing
earth by Ryeford.
Applications to strike out
The council have applied to me to strike
out the paragraphs of the statement of claim that contain all the claims
against them on the grounds that they do not disclose a reasonable cause of
action under Rules of the Supreme Court, Ord 18, r19(1)(a) and/or are
frivolous or vexatious and/or an abuse of the procedure of the court under Ord
18, r19(1)(b) and (c). The Crownfields’ owners have applied to me
to strike out the whole of the statement of claim on the grounds that it does
not disclose a cause of action under Ord 18, r19(1)(a). They have also
applied under the inherent jurisdiction of the court, which does, I think,
enable me to strike out frivolous or vexatious claims.
In considering
the applications to strike out as not disclosing a cause of action, I must,
because of Ord 18, r19(2), assume that the facts are as pleaded in the
statement of claim and in the many further and better particulars delivered
under it and must not have regard to evidence. In respect of the other
applications, evidence is admissible and many affidavits have been filed, of
which several exhibit detailed experts’ reports.
The summary of
facts which I have given above is based almost entirely on the plaintiffs’
pleadings. I think that probably the only important respect for present
purposes in which the plaintiffs’ pleadings and the evidence adduced by the
defendants disagree is that the former allege that the Crownfields development
took place from 1964 onwards, whereas the latter asserts that it began in 1962
or thereabouts. Since only a trial could decide the dispute, I will assume that
the plaintiffs are right.
Mr Dennys, for
the plaintiffs, has submitted that the defendants’ applications are made late,
since the trial is fixed for March 6 1989. I can but agree with him but, on the
other hand, if there are parts of the plaintiffs’ claims which ought to be
struck out, it is expedient that I should deal with them now, so as to save all
parties time and costs at the trial.
I will take
each of the grounds for striking out put forward by Mr Taverner, for the
council, and by Mr Chapman, for the Crownfields owners, one by one and give my
conclusions with regard to it.
Whether grant of planning permission by
the urban district council in 1963 can give rise to liability in negligence
The present system of planning law has
been in existence since July 1 1948, which was the appointed day under the Town
and Country Planning Act 1947. Under what is now section 23(1) of the Town and
Country Planning Act 1971, planning permission is required for the carrying out
of any development of land. Under section 22(1) ‘development’ means ‘the
carrying out of building, engineering, mining or other operations in, on, over
or under land’ or ‘the making of any material change in the use of any
buildings or other land’. An authority, when dealing with an application for
permission, are required by section 29(1) to ‘have regard to the provisions of
the development plan, so far as material to the application’.
Unlike the
Public Health Act 1936, which was held to give rise to claims in negligence in Anns
v Merton London Borough Council [1978] AC 728, the planning Acts
make no mention of health or safety. In Lyons v F W Booth
(Contractors) Ltd (1982) 262 EG 981, Drake J, at p 983, [1982] 1 EGLR 147,
referred to a concession which had been made by counsel that when considering
and giving approval to plans under the provisions of the planning Acts, a local
authority’s duty should be the same as that arising on an inspection to ensure
compliance with byelaws under the public health Acts and said that he fully
agreed and held that ‘the nature and scope of the duty is indeed similar’.
However, the learned judge went on to say that in that case the matter was
‘probably only of academic importance’ and, since the case was concerned with
byelaws and not with planning, his words were plainly obiter. Neither
counsel nor I have been able to find any reported case in which a court has,
after argument and as its ratio decidendi, held that a local authority
exercising planning control owe a duty in negligence to anyone.
It may be that
a council, when deciding whether to grant planning permission for development,
could be expected to have in contemplation that, if they fail to exercise care
in reaching their decision and the permission granted is implemented, nearby
owners will suffer loss. However, the council’s function is regulatory and in
performing it the council are to have regard to a policy document, the
development plan; the council have to act for the benefit of the area as a
whole and inevitably their decisions will adversely affect some landowners. The
applicant, if dissatisfied, has a right to appeal to the Secretary of State for
the Environment and anyone with a sufficient interest can challenge the
validity of the council’s proceedings by judicial review. In all the
circumstances, despite foreseeability of damage, I do not think that there can
be a sufficiently special relationship — sufficient ‘proximity’ — between the council
and an individual landowner for the council to owe a duty of care to him. The
council’s role is akin to that of the Commissioner of Deposit-taking companies
in Yuen Kun Yeu v Attorney-General of Hong Kong [1988] AC 175.
Even if I am
wrong and there is sufficient proximity between a council exercising planning
powers of control and a landowner, it would, I think, be contrary to public
policy for the council to be liable to him in negligence. A council’s
overriding duty is not to individuals but to the public as a whole. I think
that a council should be protected from liability in negligence as is the
advocate in the conduct of a trial (Rondel v Worsley [1969] 1 AC
191) and the police authority when investigating a crime): (Hill v Chief
Constable of West Yorkshire [1988] 2 WLR 1049).
The effect of
making planning authorities liable for negligence in the exercise of their
powers would, of course, be to open the ‘floodgates’ to claims.
If, contrary
to my views, a council exercising planning powers owe a duty in negligence to
individuals, breach of that duty would be unlikely to result in injury to
health or safety or damage of physical property, but in loss of development
value or other forms of economic loss which, in the absence of reliance by the
plaintiff on the defendant, as in Hedley Byrne & Co Ltd v Heller
& Partners Ltd [1964] AC 465, cannot be recovered in negligence: Simaan
General Contracting Co v Pilkington Glass Ltd (No 2) [1988] 2 WLR
761 and D & F Estates Ltd v Church Commissioners for England [1988]
2 All ER 992.
In this case,
as the plaintiffs’ claims based on the 1963 permission are for negligence in
the exercise of planning control and the losses alleged are wholly monetary, I
think that they should be struck out as not disclosing valid causes of action.
Whether the urban district council’s
failure to ensure that Crownfields houses were sited in accordance with
planning permission can give rise to liability in negligence
For the same reasons as I have given in
connection with the urban
validity and should be struck out.
Whether claims against the council based
on grant of 1963 planning permission and failure to ensure strict compliance
with it are statute-barred
In Ronex Properties Ltd v John
Laing Construction Ltd [1983] 1 QB 398, the Court of Appeal held that while
an action which is alleged to be barred by the Limitation Act cannot be struck
out as not disclosing a cause of action, it can in very clear cases be struck
out as frivolous or vexatious or an abuse of the process of the court. In
negligence the plaintiff’s cause of action accrues when damage first occurs,
irrespective of whether he knew about it at the time: Pirelli General
Cableworks Ltd v Oscar Faber & Partners [1983] 2 AC 1.
In this case
it is not clear from the pleadings when the grant of the Crownfields
permission, and failure to supervise development pursuant to it, caused the
plaintiffs to suffer losses of development value, profit and ‘diminution in value
of title’. It may have been immediately after the Crownfields houses were built
and the Mewburn land first became waterlogged, or it may have been when
flooding in 1968 extinguished any reasonable prospect of its being possible to
develop the land. Obviously, permission for building on the Mewburn land was
not available when the plaintiffs carried out their development of The Dene
ending in 1976. The present action was brought in 1985.
1968 was 17
years before proceedings were brought and 1976 was nine years before they were
brought. The council obviously have a very clear limitation defence to the
plaintiffs’ planning claims. If, therefore, the plaintiffs’ claims in respect
of the planning permission and securing compliance with it disclose causes of action,
they could still be struck out as frivolous and vexatious and an abuse of the
procedure of the court.
Whether the plaintiffs can claim in
respect of any cause of action which accrued before they acquired an interest
in the land
If a cause of action in negligence in
respect of the grant of planning permission or supervision came into existence
in 1968 or at any time before Mewburn became owners of their land in 1972, in
my opinion neither they nor their associated company, Ryeford, can claim in
respect of it, since it did not accrue to them, but to Mewburn’s predecessors
as owners, who are not alleged to have assigned it to them: see my judgment in Perry
v Tendring District Council [1984] 3 Con LR 74 at pp 93-95 and His
Honour Judge Hawser QC’s judgment in R L Polk & Co (Great Britain) Ltd v
Edwin Hill & Partners [1988] 41 BLR 84*.
*Editor’s note: Reported also at [1988] 1
EGLR 142; [1988] 18 EG 71
Whether Ryeford can claim the cost of
removing the earth it had previously spread on the Mewburn land
Since it is apparent from the statement
of claim that Ryeford laid the earth without the benefit of planning permission
and, therefore, illegally, and since they removed it as the result of an
enforcement notice, supported by criminal proceedings against them, they can
blame no one but themselves for any expenses which they incurred. This claim
should certainly be struck out both as failing to disclose a cause of action
and as being frivolous, vexatious and in a very real sense an abuse of the
procedure of the court.
Whether the urban district council are
liable for negligence or for breach of statutory duty in connection with sewers
The Public Health Act 1936 permitted, but
did not require, an urban district council to do acts in connection with sewers
which it could not otherwise have done lawfully — for example, laying a public
sewer on someone else’s land without being liable in trespass. Parliament did not,
however, authorise an urban district council to cause damage to individuals
which it was not necessary to cause in order to exercise their powers. If an
urban district council failed to exercise care when purporting to act under
statutory powers, they could be liable in negligence. In addition, section 31
expressly provided that, as I have stated previously, an urban district council
should not cause a nuisance.
The urban
district council plainly had statutory power to lay the 33-in sewer; they may
have been unable to prevent The Dene houseowners from connecting to it, since
it was a public sewer; and they had power to cause the 12-and 33-in sewers to
be connected. Whether at the time when the urban district council did these
acts they failed to exercise reasonable care are questions of fact, which
cannot be decided without a trial.
However, once
again the damage pleaded as having resulted from the urban district council’s
negligence is economic, and, for the reasons which I have given previously in
connection with planning permission, in the absence of a Hedley Byrne situation,
a claim for economic loss cannot be brought in negligence. On this ground,
therefore, this claim in negligence may be struck out. The urban district
council cannot be liable for breach of statutory duty in failing to exercise
statutory powers which were purely permissive.
Whether the council can be liable under
Rylands v
Fletcher and/or nuisance in respect of sewers
Under Rylands v Fletcher,
an occupier of land who has collected on it something which was not naturally
upon it and which was likely to cause damage if it escaped is liable for any
direct losses caused by its escape. In Smeaton v Ilford Corporation [1954]
Ch 450, the Court of Appeal held that sewers were within the occupation of a
sewerage authority and that the collection of sewage (in that case foul sewage)
was a non-natural use of land. Whether the 1936 Act provided immunity from
liability under Rylands v Fletcher was the subject of conflicting
dicta in Pride of Derby and Derbyshire Angling Association Ltd v British
Celanese Ltd [1953] 1 Ch 149. Lord Evershed MR, at p 176, was not satisfied
that it did, whereas Denning LJ (as he then was), at p 189, inclined to the
opposite view. Whether economic loss could be a sufficiently direct result of
an escape of water from sewers must, I think, be a question of fact.
For nuisance
there must be physical injury to land or substantial interference with the
beneficial use of it. If economic loss results it is, I think, probably
recoverable.
Since it is by
no means certain that the district council’s statutory powers afforded them
immunity under Rylands v Fletcher and since they had no power to
create a nuisance, the plaintiffs’ claims under these heads must go to trial.
Whether claims made against the council
in respect of sewers are statute-barred
The 33-in sewer was laid in 1976, and at
about the same time The Dene houses connected to it and the link with the 12-in
sewer was made. Escape of water on to the Mewburn land must have followed at
once, although actual flooding did not occur until 1980. 1976 was nine years
before the plaintiffs issued their writ. I think that it is very clear that the
council would be able to establish a limitation defence to the plaintiffs’ claim
in negligence and that provides a further reason for striking it out.
There must, I
think, be a fresh cause of action in Rylands v Fletcher whenever
a fresh escape occurs. Nuisance can be continuous or fresh causes of action for
it can arise whenever new damage or interference occurs as the result of it.
The Limitation Act would not, therefore, in my opinion, bar the plaintiffs’
claim either for an injunction or damages arising out of Rylands v Fletcher
or for nuisance.
Whether Crownfields owners are liable in
nuisance or negligence for obstructing flow of water from Mewburn land
In Roman Law and in the laws of countries
which are based upon it, the owner of higher land has a right to discharge
water in undefined channels on to land which is lower than his and the owner of
the lower land may not obstruct the flow of water. Until recently, there have
been few reported common law decisions on the subject. In Gibbons v Lenfestey
(1915) 84 LJPC 158, which was an appeal to the Privy Council from Guernsey,
Lord Dunedin said that ‘Even the countries ruled by the common law have
accepted the Roman rules’, but he did not cite any authority to that effect and
plainly his words were obiter.
In Gartner v
Kidman (1961) 108 CLR 12, the High Court of Australia heard an appeal
from South Australia in a case in which the owner of lower land had erected
barriers to block the escape of water from his neighbour’s higher land, thereby
causing it to flood. The leading judgment was given by Windeyer J, who, after a
review of what he described as conflicting dicta in Australian, English,
New Zealand, Canadian and American cases, held, at p 49, that:
The lower proprietor: . . . Although he has no
action against the higher proprietor because of the natural unconcentrated flow
of water from his land, he is not bound to receive it. He may put up barriers
and pen it back, notwithstanding that doing so damages the upper proprietor’s
land, at all events if he uses reasonable care and skill and does no more than
is reasonably necessary to protect his enjoyment of his own land. But he must
not act for the purpose of injuring his neighbour. It is not possible to define
what is
circumstances.
In Home
Brewery Co Ltd v William Davis & Co (Leicester) Ltd [1987] QB
339, defendant owners of lower land had filled in a claypit on it and thereby
created a partial barrier against the drainage of water from the plaintiffs’
higher ground and caused it to flood. Mr Piers Ashworth QC sitting as a deputy
High Court judge, after quoting from Windeyer J in the Gartner case,
said at p 351:
. . . in my opinion, although the
plaintiffs had no right to require the defendants to accept the percolating
water from their land, the defendants’ right to reject it was not absolute, but
was subject to qualification that such rejection must be reasonable and in
particular in the reasonable user of their land.
The decision
of the Australian High Court is not strictly binding on me, but it is by a very
distinguished court and, if I may say so, it exhibits what is usually the main
characteristic of the common law, namely common sense, and, therefore, like Mr
Piers Ashworth, I respectfully follow it.
The
Crownfields owners did not build the embankments on which their houses stand.
They have, however, allowed them to remain and, if they constituted a nuisance,
they would have continued the nuisance. However, it seems to me that the
original builders, acting with planning permission and at a time when the valley
between Crownfields and Oak Lane had not been developed, behaved reasonably in
their own interest in raising ground levels so that houses could be built, even
though the effect was to obstruct the flow of water from higher land. It is
inconceivable that they acted out of ill-will towards anyone.
If the
builders of Crownfields did not create a nuisance, then there was none for the
present owners to continue. The owners have not created one themselves; they
have simply lived in their houses and enjoyed their gardens.
If the
builders were not liable in nuisance, then for the same factual reasons they
were not, in my opinion, guilty of negligence. In any event, the house-owners
were not involved in the building and by merely living in their homes they
cannot have acted in breach of duty. The claim in negligence is once again for
economic loss.
In my view,
the claim against the houseowners must be struck out.
Whether Crownfields owners could if
necessary have relied upon a prescriptive right to obstruct the valley
The wording of section 2 of the
Prescription Act 1832 would appear to extend to negative easements, such as a
right to obstruct a flow of water, although the learned editor of Gale on
Easements, at p 162, states merely that the section applies to all positive
easements and he does not mention negative ones. A negative easement can no
doubt be the subject of a suitably drafted grant, so that the doctrine of lost
modern grant could apply to it. For the Prescription Act, 20 years’ user, nec
vi, nec clam, nec precario, before the plaintiffs issued their writ, would
be required, but for lost modern grant 20 years’ similar user at any time would
suffice.
To strike out
an action as frivolous or vexatious or under the inherent jurisdiction on the
grounds that the defendants would be able to establish a prescriptive defence
would, I think, require at least as clear a case as is required under the Ronex
case in respect of a limitation defence. Because it is not clear when precisely
the Crownfields houses, or some of them, were built, in my opinion such a
degree of clarity does not exist in this case.
Whether Ryeford are entitled to claim
indemnity against any claims by British Rail in relation to their tunnel
The statement of claim refers to British
Rail’s concern in the past with regard to the tunnel but does not plead any
claims or intimations of possible claims by British Rail. However, damage to
the tunnel could conceivably arise out of the discharge of water from the
33-inch sewer into ground near to the surface above the tunnel and, since the
plaintiffs’ claims against the council in Rylands v Fletcher and
nuisance are to continue, I think that the claim to an indemnity should also be
allowed to continue as part of them.
In the result,
I strike out all the plaintiffs’ claims except those against the council in Rylands
v Fletcher and nuisance.
Part of the plaintiffs’ claims struck
out. Leave to appeal granted.
