What a nuisance: a council’s liability for flood damage
When is a local authority liable for damage caused by floodwater escaping from one of the roads for whose maintenance it is responsible? The decision of the Court of Appeal in Vernon Knight Associates v Cornwall Council  EWCA Civ 950 goes some way towards providing the answer.
In this case, the Claimant was the owner of a holiday village in Cornwall. Honicombe Road ran alongside the northern boundary of the village. At one part of Honicombe Road there was a dip which coincided with the point at which the boundary wall of the village ended. Unless drained sufficiently, once that water in the dip reached a certain depth the water would surge past the end of the boundary wall and into the holiday village.
In about 2000 Cornwall Council installed drains, gullies and a catchpit in the dip, which in themselves were sufficient to deal with such rainwater, but not if the grilles and gratings were blocked with leaves, sticks and other debris. The Council employed and supervised an agent to perform highway maintenance duties.
In November 2006 very heavy rain occurred and the holiday village flooded, though emergency attendance by the maintenance team cleared away the debris blocking the drainage and the floodwater abated. In September 2008 the village again suffered flood damage from leaves and drains blocking the drains and gullies.
The Claimant brought proceedings against the Council, alleging that the Council was at fault for allowing the floods to develop. At trial it emerged that the dip in Honicome Road was a ‘hotspot' that was very prone to flooding unless the drains and gullies were kept clear. HHJ Havelock-Allan QC held that the Council was in breach of its duty to do that which was reasonable in all the circumstances to prevent or minimise the known risk of flood damage to the Claimant's property. While the Council's system for preventing blockage of the drains and gullies was adequate (despite flaws), on two occasions the maintenance team failed to follow normal practice. The Judge held that there was no adequate explanation for the failure of the maintenance team to attend on these particular occasions. The Council appealed, arguing that the Judge had applied too high a standard of care.
The Court of Appeal considered where the law now stands in relation to the liability of land owners for non-feasance (the intentional failure to comply with a duty) in respect of natural nuisance. Having reviewed the authorities, Lord Justice Jackson extracted the following principles:
(i) A landowner owes a “measured duty” in both negligence and nuisance to take reasonable steps to prevent natural occurrences on his land from causing damage to neighbouring properties.
(ii) In determining the extent of the duty, the court must consider what is fair, just and reasonable as between the two neighbouring landowners. It must have regard to all the circumstances, including the extent of the foreseeable risk, the available preventive measures, the costs of such measures and the resources of both parties.
(iii) Where the defendant is a public authority with substantial resources, the court must take into account the competing demands on those resources.
The Court held that, whilst there were limits on what could be expected from local authorities in respect of flood prevention, in this case the Judge had taken into account all the relevant circumstances and he had not applied too high a standard of care. He had rightly treated as crucial the fact that on two occasions, and for no good reason, the maintenance team had departed from its normal practice and failed to attend the Honicome Road hotspot during exceptionally heavy rainfall. Although he could have explained more fully why he discounted the other circumstances, the matters which he had emphasised were the critical ones.
One issue raised in the case was the relevance of whether the Claimant was able to and did insure against the damage suffered. Jackson LJ stated, obiter, that he could not see how the availability of insurance was of “any great relevance”. Sir Stanley Burnton agreed, stating that, “The availability of insurance is not normally relevant to a duty in tort. I can think of no case in which a claim in tort has been rejected on the ground that it is a subrogated claim…Furthermore, if an occupier or landowner's claim is rejected on the ground that he had insurance, the insurer may well exclude cover in respect of flood damage for the future: indeed, doubts as to the extent of the measured duty may itself lead to an exclusion of cover. I cannot think that it would be appropriate for the court to have to inquire as to the insurance market in any case in which the question arises.”
Insurance property team
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