Nuisance – Private nuisance – Flooding – Drainage – First respondents bringing claim in nuisance against appellant for flooding alleged to be caused by capping of private drain – Whether appellant interfering with easement of drainage – Whether unreasonable use of appellant’s land foreseeably causing damage – Whether recorder entitled to make findings on basis of case not pleaded by first respondents – Appeal allowed
The appellant and the first respondents owned adjoining terraced houses in York. The properties shared a common private drain which ran below the surface of their back yards and which was the subject of an easement of drainage set out in the titles to the two properties. The drain was originally accessed by way of an individual private gully from each property, running vertically down to the drain.
In 2000, the appellant had engaged a builder to install a new kitchen in her basement. The works included the laying of a new outflow pipe from the basement kitchen directly to the public sewer and the capping off of the private drain at a point under the back yard of the property.
In 2006, the appellant noticed water flowing out of the top of her gully in the back yard. A dye test carried out by the second respondent council showed that water draining from the first respondent’s property was surfacing through the appellant’s gully. On the advice of an officer of the council, the appellant requested that the drain between the two properties be capped off. The council, acting as private drainage contractors, proceeded to remove the connection between the appellant’s gully and the private drain and diverted the gully to the new kitchen drain. They installed a “sleeve” pipe to connect the two ends of the private drain where they had removed the pipe connecting it to the gully.
Between 2007 and 2010, the first respondents suffered problems with water flooding into their back yard. The problem was resolved in 2010 by carrying out remedial works to re-route the outflow from their kitchen to the public sewer, as the appellant had previously done.
The first respondents brought a claim against the appellant for nuisance arising from alleged unlawful interference with their use of the common drain. In their pleadings, they alleged that the flooding problem had been caused by the 2007 works. The appellant in turn claimed an indemnity from the council. The full extent of the earlier works in 2000, and in particular the capping off of the private drain at that time, did not become apparent until the proceedings had commenced and the first round of pleadings closed. In their closing submissions, however, the first respondents’ case relied on the 2000 works in combination with the 2007 works.
The recorder found that the appellant was liable for nuisance of two kinds: (i) a substantial interference with an easement of drainage; and (ii) a use of land that foreseeably caused damage to a neighbour’s land. He awarded damages of £4,227.88 and also dismissed the appellant’s claim for an indemnity against the council. The appellant appealed.
Held: The appeal was allowed.
(1) The findings made by the recorder on the basis of the 2000 works had resulted in procedural unfairness. The case in nuisance pleaded against the appellant was not a general case in nuisance, leaving the first respondents free to put together any case they chose based on the evidence that emerged at the trial. It was a specific case of nuisance based on the intervention by the council in 2007. When it emerged that the private drain had been blocked since 2000, the pleaded factual case against the appellant based on obstruction of the drain by the 2007 works had to fail. The first respondents had not taken the opportunity to amend their pleadings to rely on the 2000 works but had continued to rely only on the 2007 works. The case ultimately accepted by the recorder depended crucially on holding the appellant responsible for her builder’s work in 2000, but the pleadings had not put the appellant on fair notice of a case against her based on the 2000 works.
(3) In the case of interference with an easement of drainage, it was necessary to identify the easement with precision. In the instant case, the first respondents had an easement through the common private drain but had no general right to discharge waste water from their kitchen onto their neighbour’s land. They had no easement to discharge water onto the appellant’s land through her gully. It was not open to the recorder to find that the 2000 works did not, and the 2007 works did, constitute the substantial interference with the first respondents’ right of drainage. The 2000 works were the only interference with the right of drainage. While it might be that no damage occurred as a result of that interference, since the appellant’s gully was functioning as a relief for the first respondents’ water, that did not turn the 2007 works into an interference with the drainage right. The interference was caused by the 2000 works, which were never part of the pleaded case of interference.
(4) In relation to the second kind of nuisance identified by the recorder, unreasonable use of land was an essential ingredient of the tort. The owner of adjacent land was not obliged to receive water from his neighbour and could erect barriers and pen it back, provided that, in doing so his use of his land was reasonable: Home Brewery Co Ltd v William Davis & Co (Leicester) Ltd [1987] QB 339 applied. So far as the recorder had treated the unreasonable use as being the combination of the 2000 and 2007 works, his findings in relation to the second kind of nuisance suffered from the same procedural flaw as had affected his findings on the first. The pleaded case did not even mention the 2000 works.
If the recorder regarded the disconnecting of the appellant’s gully in 2007 as itself constituting an unreasonable use of her land, which she could foresee would damage the first respondents, then he was wrong to do so. The disconnecting of the appellant’s gully was a reasonable step to take to “pen back” the flow of water onto her land. That was the case regardless of whether it was foreseeable that the first respondents’ water would then remain on their land. They had no right to discharge their waste water through the appellant’s gully. In disconnecting her gully, the appellant was not interfering with an easement of drainage but was doing no more than was doing no more than penning back the flow onto her land of water that she was under no obligation to receive.
Bruce Walker (instructed by Grays Solicitors, of York) appeared for the appellant; Julian Shaw (instructed by DWF LLP, of Liverpool) appeared for the first respondents; Jonathan Mitchell (instructed by Langleys LLP, of York) appeared for the second respondents, City of York Council.
Sally Dobson, barrister
