FLOODING AND WATER DAMAGE
Summary of this section
Obtaining a remedy for flood damage – causation as an initial hurdle in flooding claims – general principles governing the management of water built up over many years must be factored-in – the measured duty of care – the ‘common enemy’ defence – defences of ‘statutory authority’ and of ‘statutory compensation’ – the defence of statutory inconsistency’ (Marcic) – a note on water pollution.
Flooding claims arise in respect of a wide variety of factual contexts, for instance, in connection with the management of rainfall, groundwater, drainage and sewage. Flooding is the main scope of this section of the website, but there is a short section at the end about water pollution.
Obtaining a remedy for flood damage is challenging for a claimant. This is for a variety of factual as well as purely legal reasons. In anything other than a simple claim, an expert report as to causation is likely to be required. General principles relating to water also need to be considered, the law in this area having developed incrementally over very many years.
Water is an unpredictable and natural resource, as well as a common enemy. The courts have been reluctant to make a party liable for dealing with flood water, there being a limit to the extent to which it is possible to protect land without diverting the problem elsewhere. Parliament has also placed practical limitations on the resources which have to be spent by bodies with statutory responsibilities in relation to water.
One specific defence in respect of water and sewage flooding is that of ‘statutory inconsistency’. For many years the courts have held that a claim in nuisance for sewage or water flooding cannot be maintained just because the flooding is caused by an inadequate system of pipes and sewers. This reached its apogee in the case of Marcic (2003), which considers the Water Industry Act 1991. Accordingly, the defence of ‘statutory inconsistency’ (as this will be known) is set out in this section of the website.
Some other defences regularly respond to flooding claims, and these are to be found in the section ‘Defences’. In particular there are the defences of ‘statutory authority’ and of ‘statutory compensation’. As to the first of these, legislation exists which can expressly (or impliedly) exonerate any person or undertaking from its acts and omissions. As to the second, some statutory provisions expressly provide for compensation where damage occurs (an example being flood damage). Where there is a statutory right to compensation then the effect may be that a claim in nuisance is excluded as a result of the existence of that right. These defences are not exclusively connected with flooding claims, which is why they are dealt under ‘Defences’. For the same reason, the same section considers the defence of “Act of God” and the defence which can apply where the cause of the flooding is the malicious act of a stranger.
As to factual difficulties, establishing causation is likely to be very complex. It is often sensible for a claimant to confront this head-on, i.e. at a very early stage in the investigation of a claim. If the damage would have happened in any event (as experience often shows to be the case), then there is little point in pursuing the claim. This is a frequent problem for claimants. Save in very straight-forward cases, the cost of exploratory investigations by an expert is likely to be significant (especially if computer modelling is required).
As to the relevant legal issues, general principles relating to water are likely to have an impact on whether there is a flood claim. The law establishing these rights has grown up piecemeal over many years, drawing boundaries between what can provide a right of recovery and what cannot.
If there is no contradictory right in relation to water which may make a flood claim difficult, then there is likely to be the problem that at its heart, a flood claim generally arises because there is some omission to act which is the cause of the complaint, rather than some positive act.
For instance, it might be said that flood waters have escaped when they should have been penned in by a wall, or because there has been a failure on a landowner’s account to enlarge the size of culvert or pipe to accommodate increasing burdens on the local pipe network.
Where a defendant has done some positive act to cause flood water, then the general principles of nuisance of the type which have caused property damage will apply. (This has been described in the introductory section on private nuisance as a ‘category 1’ claim.) The main issues will be ones of causation and foreseeability.
In the case of omissions, then the modern law relating to the ‘measured duty of care’ is likely to be the main sphere of interest (‘category 3’ claims). This is the duty which arises where there has been a failure to act on the part of a landowner who is in a position to prevent or abate a nuisance. The effect of this aspect of the common law is still being worked out, but it has been explored with ever greater frequency by claimants. See further below.
Another judge-made principle which has enjoyed a resurgence and which is a defence to many flooding claims, is the doctrine of the “common enemy”, a principle which may restrict the ability of an aggrieved party to obtain a remedy.
Where a defendant works its land (A) without negligence and in a reasonable manner, but with the inevitable result that flooding occurs to the land of a neighbour (B), then this is not ordinarily actionable. A practical boundary is drawn between permitting and causing water to flow from A to B, the latter (and not the former) giving rise to a remedy (Smith, 1849, Whalley, 1884 and Home Brewery, 1986).
Where, by some artificial means (such as by building or engineering works), water is caused to flow (or percolate) from land (A) so that it invades (or affects) neighbouring land (B) causing damage, then A may be liable to B (Baird, 1863, Hurdman, 1878 and Home Brewery, 1986). The question, as ever in a case of nuisance, is one of reasonable user (Home Brewery, 1986). Thus, a property owner who built a paved driveway on his land was held liable in nuisance where the result was to divert storm waters on to the property of his neighbour (Bennetts, 1959).
There is ordinarily no liability attaching to water flowing in a natural channel, but if a person interferes with the alveus (for instance by placing it within a culvert), then that person may be strictly liable for foreseeable flood damage (Greenock, 1917). (The alveus is the bed of a river running in a defined channel.)
If the local area changes and the capacity of a culvert which has been installed is no longer sufficient, then a “high obligation” arises to consider whether steps should be taken to ensure that neighbouring properties are not flooded (Bybrook, 2000) (an application of the ‘measured duty of care’ – a ‘category 3’ claim).
If heavy rainfall breaks through or over a person’s land (A) and it damages the land of a neighbour (B), then this in itself does not give rise to any liability on the part of A. However, once flood waters have collected on a person’s land (A), then that landowner cannot undertake works the effect of which are to transfer the misfortune to a neighbour (B). In those circumstances, A will be liable to B: the common enemy principle does not apply (Whalley, 1874).
The ‘measured duty of care’ and its effects in flooding cases
Prior to Sedleigh-Denfield, 1940, a person subject to flooding had few rights where the flooding was not the result of some act on the part of the landowner from whose property the flood waters progressed. By the time of Leakey, 1979, however, it had become recognised that a landowner may be subject to a “measured duty of care” to take reasonable steps to protect a neighbour from the consequences of a natural hazard (such as water), or at least to minimise the risks.
This is a measured duty in acknowledgment of the fact that the landowner has not brought about the nuisance: this is a tort of omission. It takes into consideration the resources of the landowners affected and may therefore be satisfied simply by one landowner inviting the affected landowner on to its land to abate the problem (Vernon Knights, 2013 and Lambert, 2010).
A telling factual issue in claims involving flooding in respect of the highway has been the adoption on the part of the defendant highway authority of procedures for checking whether the condition of highway drains has been observed, and the further question whether those procedures have been followed. (See Pemberton, 1960, Bybrook, 2000 and Vernon Knights, 2013.)
The measured duty of care can have an effect on the principles which derive from older water cases: “the tort of nuisance is not to be made the prisoner of precedent” (Green, 2003).
The ‘common enemy’ defence
It is a well-established principle that a landowner has the right to take reasonable steps to protect its land from naturally occurring floodwater, even if it should damage the land of a neighbour (see for instance the coastal groynes in Pagham, 1828).
The right to deflect flood water with impunity is known as the “common enemy principle”. It has been worked out in a variety of contexts. Thus, in the event of heavy rainfall (or the threat of some other extraordinary flood danger), a landowner is allowed to take steps to protect itself by deflecting that flood water. It can deflect flood water with impunity, even though the water may cause flood damage to another landowner (Nield, 1874 and Whalley, 1884). However, the landowner can only take such steps as are ‘reasonable’ to protect its land by this means (Arscott, 2004).
A line exists which marks a distinction between those occasions when a landowner can protect his land and circumstances when he must accept the damage caused by floodwater without the right to discharge it elsewhere. These circumstances are outlined above within the general principles (see Arscott, 2004).
The common enemy doctrine has been described as a principle of “reasonable selfishness” (Nield, 1874). It has been re-established in a modern context even where the defendant landowner did not consider that it was specifically undertaking works of flood defence (Arscott, 2004).
‘Statutory inconsistency’ and Marcic
It is a complete defence to a claim in nuisance caused by flooding from a sewerage system that the claim is designed only to ensure the installation of a replacement system, i.e a system of pipes and drains which is adequate for the amount of flow. This principle reached its nadir in the case of Marcic (2003) which concerned the application of the Water Industry Act 1991.
Prior to the House of Lords’ decision in Marcic, a series of cases (for instance Glossop (1878), Smeaton (1954) and Dear (1992)) had each rejected attempts made by claimants to rely on the tort of nuisance as a means of ensuring that a statutory undertaker provide an adequate sewerage supply. The courts held that, in reality, the claimants’ attempts amounted to applications for prerogative orders of mandamus to compel the public authorities to comply with their statutory duties. They could not take proceedings in respect of the defendants’ failures to act, their true complaints all being of sewage and water flooding caused by the overtaxing of the sewerage system. The litigation in each case, as indeed in Marcic, did not concern any positive acts or errors on the part of the defendants. The only way to rectify an individual flooding problem was to construct a new system for the benefit of the wider locality which was adequate for the task.
In Marcic, an important consideration was the fact that the 1991 Act requires statutory undertakers to weigh up policy issues which had an impact on, and were affected by, funding allocations. The factual problem in Marcic was rectified by a scheme of works in the area which cost in excess of £700,000. An additional factor is that under the relevant legislative arrangements, a statutory undertaker has limited powers to object to new connections to the system (Barratt Homes, 2009). A statutory undertaker does not have control of the overall capacity of its sewerage system. The result is that if money were to be spent on curing a flood issue at one specific address, then all that may happen would be that there would be flooding elsewhere on the system.
In the context of the 1991 Act, then, the relevant principle is that a claim in nuisance is inconsistent with the wider statutory scheme. Parliament has created a complex system intended to balance the need to ensure that flooding does not take place with the demands on the statutory undertakers’ resources and the priorities which the statutory undertakers need to address. This is not a function for the courts in a private law action. The result is that the statutory undertaker has a complete defence. A further part of the inconsistency arises because there is a regulator with a power of enforcement who exists to adjudicate on complaints about the exercise of the policy considerations (i.e. Ofwat).
It might be asked what the House of Lords made of the Leakey line of cases (the measured duty of care). Is there not a measured duty of care to abate a system which allows flooding to continue? The judges distinguished these cases primarily on grounds of reciprocity. Sedleigh-Denfield, Goldman, Leakey (and so on) are all concerned with the competing claims of neighbouring landowners as between themselves: where does the balance lie between them, and is the contested user reasonable or not? The claims of those subject to inadequate sewerage, on the other hand, exist in a much wider context. If one landowner were able to establish a right to a certain standard of sewerage capacity, then so should all other users. This leads back to the problem which was identified above. Where there are many users complaining of an inadequate sewerage system, then the sewerage undertaker needs to be able to undertake a very wide-ranging assessment of the competing policy considerations and the concomitant expenditure which would be required.
In summary, the existence of the scheme in Marcic, means that individual householders have no right to take common law proceedings in parallel to any complaint to the regulator. In essence, they have to remain in the queue, the right of remediation being subject to the overall balancing of various different policy priorities and competing claims on the money available to carry out the necessary works.
An important qualification to Marcic has been recognised in Dobson, 2007. Where a claimant can show that flooding is the result of some negligent act concerning operational, rather than policy, decisions (matters of ‘current’ rather than of ‘operational’ expenditure), then a common law claim is possible. Depending on the factual circumstances, a cause of action in negligence need not be inconsistent with the statutory enforcement scheme. (See Dobson, 2007.)
Bell (2016), for instance, was a claim which relied on proof of the escape of water and sewage from abandoned sewerage. The claim was considered admissible on the basis that it concerned purely operational issues. In Oldcorn, 2017, too, a claim arising out of the allegedly negligent installation of a valve designed to avoid flooding, was also held to be justiciable. Neither was considered to be an attempt to enforce a mandatory duty justiciable only in the public law courts. Both claims failed on causation.
Pollution claims for the most part are claims of strict liability (category 1 claims). They generally concern the discharge of noxious material into water, such as sulphuric acid, oil, sewage or so on.
Such claims involve the application of the principles of strict liability (‘category 1’ claims) which are set out elsewhere. Issues for consideration are commonly the question whether the claimant has title to sue and whether there is any legislation which authorises the nuisance.
A high proportion of cases have been concerned with fishing rights. Pride of Derby (1952) concerned a sewage disposal works built on the defendant’s own land. The local authority had been pumping (or otherwise diverting) sewage from its land into the river, thereby interfering with the fishing of an angling club. The case was distinguished from the Glossop cases (see above) since although there was nothing wrong with the piping, the operation was seen as a whole. This was not a case of seeking to obtain a mandatory order by the ‘back door’ of nuisance. The defendant had been directly causing pollution of the river.
In water pollution cases there is a fine distinction between the application of the rules of nuisance and of trespass, the division being whether the pollution is an ‘indirect’ or ‘direct’ interference with the claimant’s property. The similarity between the two causes of action has not much concerned the courts. In particular, the slightly more flexible rule in trespass that a possessory right is sufficient to ground a claim has been applied in the case of private nuisance (Nicholls, 1931).