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Arscott v The Coal Authority & Merthyr Tydfil County Borough Council, Court of Appeal, 13 July 2004

22 July 2004
The issues

Flooding – nuisance

The facts

Merthyr Tydfil owned a large recreation area known as Grove Fields. They were liable to flood and frequently were out of use. Two tips overlooking Aberfan which were not considered dangerous but served as a reminder to the local community of the tragedy that had occurred in October 1966 were removed by the Coal Board. At the agreement of the local authority, the discard was deposited on Grove Fields to create a raised level playing area. This was done in 1972 to 1975. In 1998 the River Taff overflowed. The property of the claimants flooded and the cause was the diversion of floodwaters caused by raising the level of Grove Fields. The Claimant’s sued the Coal Authority and the council.

The High Court Judge dismissed the claims in nuisance.

The appellants appealed to the Court of Appeal.

The decision

The law of nuisance was protian – the ways in which a person might make use of his land or rights associated with land use were many as were the consequences of a land owners doing so. It is unsurprising that the boundaries of the law of nuisance were uncertain and shifting. There were common themes in the cases. The first was the relation between the notion of a natural use of land and the notion of a reasonable use of land.

The second was the requirement of reasonable foreseeability of damage as a condition of liability in nuisance.

The relationship between natural user and reasonable user

Broadly a land owner will not be liable for the consequences of what would be recognised as a natural use unless the quality or extent of that use was unreasonable. If a land owner pursues a non natural use, then generally no appeal to reasonableness will help him.

However, importance of the distinction between natural and non natural uses is receding in the law as is suggested by cases such as Leaky v National Trust.

Reasonable Foreseeability

This is a general requirement which unlike the issue of the relationship between notion of a natural and reasonable use of land is “hard edged”. It is fact sensitive and the evidence may well not be ‘hard edged’.

There were two issues to be decided in this case: the application of the common enemy rule and the question of reasonable foreseeability.

The Common Enemy Rule

The essence of the common enemy rule is that it is lawful for a landowner to prevent damage to his ground by the overflow of a river even though by his actions damage occurs to his neighbour provided that the landowner’s actions are not directed to an established water course as opposed to a flood plane. The common enemy rule had a second limitation namely that whilst the rule permitted a land owner to erect defences the effect of which would be that water which would have otherwise have flowed under his land would be diverted on to his neighbours, it did not permit a land owner to take measures so as to cause water which had already or would in any event have come on to his land to flow from it on to that of his neighbour.

An issue would have arisen as to whether the common enemy rule conflicted with the claimant’s human rights. The act was not retrospective and was not in force at the relevant time. However, had it been necessary to decide the point in the cview the common enemy rule was in principal inoffensive to Article 8 and Article 1 of the first protocol. Notwithstanding the appellant’s submissions the Judge below had been right to find that the common enemy rule applied.

Reasonable Foreseeability

This was a question of fact. The judge had had all the evidence before him over the course of a substantive trial and had undertaken a sight visit of the relevant area. The court should not interfere in the judge’s decision on this question unless it could be shown that there was a mistake in his reasoning or that he had misunderstood the material evidence. No one had thought that the infilling was the culprit of the very similar 1979 floods and the determination that the infilling had in fact caused the flooding in the appellant’s houses was the result of a painstaking and sophisticated exercise involving the use of technology that was not available in the 1970’s. The judge was entitled to conclude as he had done.

Appeal dismissed.

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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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