Liability in tort can arise not just for the causer of a private nuisance but also for the landowner that fails to act in a way that satisfies its "measured duty of care".

The landowner's duty has recently been considered in the case of Lambert v Barratt Homes and Rochdale MBC (16 June 2010).

The claimants were householders on a road in Rochdale. The road was adjacent to a school playing field owned by the Council.

In 1993, the Council sold part of the playing field to Barratt Homes for development. Barratt completed its development in 1996.

Prior to development, the field had been satisfactorily drained by a ditch which ran into a culvert that passed under the road. However, Barratt filled in the ditch and culvert. This caused surface water on the Council's retained part of the playing field to collect in and damage the claimant's properties. Expensive works were required (mostly on the Council's land) to rectify matters.

The claimants sued Barratt and the Council. At first instance, both Barratt and the Council were held liable for the works. In causing the blockage, Barratt was found to have been negligent. The Council, knowing the ditch and culvert to have been blocked, was found to have breached its "measured duty of care" to its neighbour when it failed to reduce or remove hazards to its neighbour occurring on the Council's land.

Barratt accepted the judgment, but the Council appealed. It thought that having an obligation to conduct works was unfair on the Council in the circumstances.

The Court of Appeal reviewed the cases in this area, including the well known judgments in Goldman v Hargrave, Leakey v National Trust and Holbeck Hall Hotel v Scarborough Council. It said that:

  • The duty to act, if it arises at all, arises as soon as the landowner becomes, or should have become, aware that the hazard has come into existence. Once it has arisen, the duty is a continuing one.
  • In each case it is necessary to consider what steps it is reasonable to expect the person on whose land the hazard has arisen to take in order to prevent damage to other land liable to be affected by it.

The Council was under a duty here, but what action was reasonable on its part? The Court of Appeal noted that:

  • The Council was not responsible for the cause of the flooding. Barratt was, and it was still in existence. As time wore on, Barratt's liability to the claimants had become clear.
  • The cost of works was high.
  • Local authorities are under financial pressure at the moment and, in any event, their funds are held for public purposes rather than for the benefit of private citizens.
  • The claimants were likely to be insured against flooding damage and the cost of the works to safeguard their properties may have been recoverable from insurers.

Without full information, it was difficult for the Court to say precisely what was reasonable for the Council to do to satisfy its duty. Cooperation with the claimants (e.g. by allowing access and helping with the granting of consents) should they wish to conduct drainage relief works themselves certainly seemed reasonable, possibly more. However, requiring the Council to carry out and pay for a significant chunk of the works was not reasonable.

The Council won the day, but the case reminds us that where they fail to respond reasonably in all the circumstances, landowners can be sued for nuisances emanating from their land that they did not create.

This article first appeared in "Insurance Day" on 20 August 2010

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