Originally published in BLG's Environment and Health & Safety Digest, Autumn 2007
Liability in flooding cases often hinges on the nature of the water channel in question. Usually the nature is easily established. However, this is not always the case.
In Raglan Housing Association Limited v Southampton City Council and Southern Water Services Limited (30 July 2007), Raglan's property was prone to flooding from an adjacent channel that flowed into the River Itchen.
The channel had once been a natural stream. It carried clear water in dry weather. Surface water sewers now drained into it, causing the flow to increase following wet weather. The prime function of the channel was now the carrying of surface water sewage.
For much of the channel's length, it was covered over and lined with concrete. The part that ran past Raglan's property was lined, but not covered. It was unclear who had done this work. Downstream of Raglan's property, work had been conducted on the channel by the sewerage undertaker in its capacity as such.
Raglan took proceedings to establish whether Southern Water or the Council was responsible for the maintenance of the channel and for making good the damage it had sustained. This meant establishing whether the channel adjacent to its property had turned from a watercourse into a sewer and, if it had, whether it was public or private in nature.
At first instance, and relying heavily on characteristics of the channel as a whole rather than the part flowing past Raglan's property, it was decided that the channel's nature had changed to such an extent that it had transformed from a watercourse into a sewer. It did not, however, satisfy the requirements for being a public sewer for which Southern Water would be responsible. It was therefore a private sewer.
Unhappy that it had been considered a sewer at all, Southern Water appealed. The appeal was upheld. The Court of Appeal decided that the status of the stream as it flowed past Raglan's property had not changed, however much its appearance may have changed in that part and whatever changes there may have been to its character and even its status elsewhere in the channel, both upstream and downstream.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
