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Bybrook Barn Garden Centre Limited v Kent County Council

1 February 2001
The issues

Liability Of A Local Authority For Permitting A Flood

The facts

The Claimants occupied a Garden Centre which was bounded by a stream. The stream passed under a road via a highway authority’s culvert. The culvert was regularly inspected but had never been altered. When constructed it was of adequate capacity to carry the volume of water passing through it and it did not create a nuisance. Subsequently the stream’s volume increased as the area developed and the culvert could no longer cope.

Thereafter it aggravated any flooding. The stream flooded the Garden Centre damaging premises and stock. The Claimant brought action seeking damages in nuisance and negligence and an injunction. At first instance the action was dismissed. On appeal.

The decision

1. There was no statutory provision protecting a highway authority from a liability in nuisance.

2. Following Greenock v Caledonian Railway Company there was no strict liability for all eventualities.

3. The issue was as to whether on becoming aware that the culvert did not allow the water coming down stream to flow freely and flooding would result whether the local authority had a duty to enlarge it.

4. In Leaky v National Trust there was no question that the nuisance was not created by the Defendant. In Sedleigh-Denfield v O’Callaghan it was clear that whilst the Defendant might be able to say that he had not created a nuisance (which had been created by a trespasser) he might still have a duty to abate it if it was a simple task to do so.

5. On Goldman v Hargrave considerations which came into play for the purpose of deciding whether it was reasonable to impose a duty on a person to abate what he could see was causing or might cause a nuisance had been considered and identified. The duty was to do what was reasonable for him to do. On the basis of what it was reasonable for the Defendant to do (see Leakey) the local authority should have been found liable.

Appeal allowed and injunction granted.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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