July 31st, 2013 by James Goudie KC

In Vernon Knight Associates v Cornwall Council [2013] EWCA Civ 950 the Council unsuccessfully appealed against a decision that it was liable for damage caused by floodwater escaping from one of the roads in the County when drains it had installed in the road had become blocked.  The road was known to be a high flood risk.  The Council’s system to prevent such blockages was adequate.  However, the Council’s contractor on two occasions did not follow his normal practice.  This caused the flooding. There was no adequate explanation for the failure to attend the road during exceptionally heavy rainfall.

Jackson LJ, having reviewed the authorities in relation to the liability of land owners for non-feasance in respect of natural nuisance, extracted the following principles (para 49):

“(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.”

The Council submitted it 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.  As to this factor, Jackson LJ said (para 57):  “… it is correct that the council is a highway authority with a large network of roads to maintain and the principal duty of preserving the safety of road users. On the other hand, precisely the same measures were needed both to protect motorists against flooded roads and to prevent flood damage occurring to adjacent properties. These measures were to check and clear the drains.

Jackson LJ said (para 58) that the point made about resources is an important one and cannot be lightly dismissed, but concluded (para 59) that, even after making due allowance for the pressures on local authorities, the duty on the Council did require it to keep the drains functioning properly.  Moreover (para 61) the availability of insurance was not a factor of any great relevance.  At para 63 Jackson LJ said:

Whilst I accept that there are limits on what can be expected from local authorities in relation to flood prevention, I do not accept that the judge applied too high a standard of care in the present case. He properly took into account all the relevant circumstances. Although he was carrying out a multifactorial assessment, he properly highlighted those factors which were particularly significant. I therefore reject the council’s first and principal ground of appeal.

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