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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 950,  WLR(D) 329
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ON APPEAL FROM BRISTOL DISTRICT REGISTRY, TECHNOLOGY AND CONSTRUCTION COURT
HIS HONOUR JUDGE HAVELOCK-ALLAN QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
SIR STANLEY BURNTON
| VERNON KNIGHT ASSOCIATES
|- and -
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
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Mr William Vandyck (instructed by Berrymans Lace Mawer) for the Respondent
Crown Copyright ©
Lord Justice Jackson:
Part 1. Introduction,
Part 2. The facts,
Part 3. The present proceedings,
Part 4. The appeal to the Court of Appeal,
Part 5. The law,
Part 6. Decision.
"Duty to maintain highways maintainable at public expense.
(1) The authority who are for the time being the highway authority for a highway maintainable at the public expense are under a duty, subject to subsections (2) and (4) below, to maintain the highway."
"Special defence in action against a highway authority for damages for non-repair of highway
(1) In an action against a highway authority in respect of damage resulting from their failure to maintain a highway maintainable at the public expense it is a defence (without prejudice to any other defence or the application of the law relating to contributory negligence) to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic."
(i) The council owed a 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.
(ii) The council knew or must be presumed to have known of the high risk of flooding at the Honicombe hotspot, especially during autumn when leaves fell.
(iii) The council had a system in place to prevent the gullies becoming fleeced over with leaves and woodland debris. The system had two flaws, namely that rural maintenance teams were not required to identify hotspots to their line managers and there was no standard procedure requiring rural maintenance teams to check hotspots during bad weather.
(iv) Despite these flaws the council's system was adequate. This was because Mr Olver knew the hotspots in his area and, on his own initiative, he went to check and clear them as necessary during bad weather.
(v) By following that practice Mr Olver prevented flooding at Honicombe Road on a number of occasions. On two occasions, however, namely 24th November 2006 and 4th September 2008, Mr Olver did not follow his normal practice. This failure was the cause of the flood damage which the claimant suffered.
(vi) There was no reasonable explanation or excuse for Mr Olver's failure to attend the Honicombe hotspot on those two occasions. Accordingly, on those two occasions the council was in breach of its duty to the claimant as an adjoining landowner.
"Should such a legal duty apply in all cases, irrespective of age or sex? Should it be made applicable in spite of the absence or illness of the owner, or in the case of a fire out of his sight or without his knowledge? Is it to apply to a man who is weak or unskilful? The slightest reflection must show anyone how difficult it would be to frame a law that would be applicable to all cases and anyone who has seen, as most of us have, the frequent bush fires in the hills adjacent to Adelaide will understand that there really is no necessity for any such law. People not only extinguish dangerous fires from self-interest, and for the preservation of themselves and their families, but in the summer we see every week the whole countryside turning out and using the utmost endeavours to prevent danger to life and injury to the property of others."
(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 content of the measured 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 and the public purposes for which they are held. It may not be fair, just or reasonable to require a public authority to expend those resources on infrastructure works in order to protect a few individuals against a modest risk of property damage.
(i) Most of the floodwater came from Donkey Park, which was owned by a third party. The council did not exacerbate the flow of flood water, but took steps to reduce its effect.
(ii) The council was only an adjoining owner by reason of its position as a highway authority. Bearing in mind the many demands upon the council's resources, the court should not impose unduly onerous requirements.
(iii) The council had an adequate system in place, as found by the judge. Honicombe Road was a secondary road on which there had only been two floods in the eight year period since the drains were installed.
(iv) The claimant was able to and did insure against the damage suffered.
(v) The claimant caused or contributed to the flood damage as a result ofa) having filled in an old ditch and having altered the topography of the land;b) not clearing gratings over the gullies on 24th November 2006 and 4th September 2008.
Sir Stanley Burnton:
The Master of the Rolls: