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Lambert v Barrett Homes Ltd (1) & Rochdale Metropolitan Borough Council (2), Court of Appeal, 16 June 2010

2 July 2010
The issues

Flooding – Leakey v National Trust – nuisance – Sedleigh-Denfield v O’Callagan – Local Authority’s duty of care – financial pressure on Local Authorities.

The facts

The Claimants were the owners of properties in Springfield Road, Middleton, Rochdale. The properties lay alongside land that was previously a school playing field owned by Rochdale. Rochdale sold part of the land to Barretts, retaining the remaining part. Barrett built a housing development, which was completed towards the end of 1996. In doing so, they built up a band along the boundary and constructed a wall or fence against the eastern boundary of the former playing field. By doing so they negligently filled in and blocked the lower part of a drainage ditch and culvert, to flood on to the Claimant’s properties, causing damage. The Judge found Barrett liability, but also Rochdale liable for breach of a measured duty to take reasonable steps to abate the nuisance comprised in the water flooding from their land to cause damage on the Claimant’s land. Rochdale Appealed.

The decision

The expression “measured duty of care” derives from the opinion of the privy counsel given by Lord Wilberforce in Goldman v Hargrave. In that case, Lord Wilberforce addressed the question of what duty an occupier of land was under in relation to hazards, natural or man-made, occurring on his land to remove or reduce such hazards to his neighbour. The existence of the duty was based on the knowledge of the hazard, the ability to foresee the consequences of not checking or removing it, and the ability to abate it by taking reasonable measures. The law had to take account of the fact that the occupier had had the hazard thrust upon him through no seeking or fault of his own and that he might be of modest means in relation to the magnitude of the hazard or as compared with those of his threatened neighbour. In general terms the standard ought to be what was reasonable to expect of him in his individual circumstances. The question of means was applied in Leakey v National Trust where the Court of Appeal noted that the criteria of reasonableness included what the particular Defendant could be expected to do by having broad regard where a serious expenditure of money was required to his means. If a risk could be readily overcome or lessened, the Defendant would be in breach of duty if he did nothing or too little. If the only remedy was substantial and expensive works, it might be that the landowner would discharge his duty by giving the neighbour permission to come onto his land to do those works at the neighbour’s expense or on the basis of a fair sharing of expense.

In this case, Rochdale was not in the slightest degree responsible for the cause of the flooding. The only way of removing the hazard resulting from the accumulation of rain water on the retained land was to construct a catch pit on that land and pipe the water to a sewer by a different route. The cost was likely to be considerable. This was not therefore a case like Sedleigh-Denfield v O’Callagan where a simple and inexpensive act on the part of the occupier of the land on which the hazard arose could have abated the nuisance.

As a Local Authority, Rochdale might be expected to have access to funds in excess of those available to the individual Respondents. It was however well known that most Local Authorities were under a degree of financial pressure. Moreover, their resources are held for public purposes and are not generally available for the benefit of private citizens. The likelihood is that as householders, the residents were insured against damage to the property by flooding and when considering their ability to carry out and bear the costs of the work required, there was no reason to ignore the possibility of them obtaining the necessary funds from their insurers. Nor was it right to ignore the value of any rights they may have had to recover the costs from Barrett. Some of those factors may have been difficult to assess at the time when Rochdale’s duty first arose, but it was far from clear that it would have been right at any stage to impose on Rochdale a duty to undertake and pay for any of the necessary work. The Court now was concerned not with the original scope of the duty but the current position. While the nuisance continued, Rochdale was under a continuing duty of care, the scope of which would vary in accordance with any change in circumstance. By the time the Judge had reached a decision on the scope of Rochdale’s present duty, he was also able to determine Barrett’s liability. The fact that the householders had an indisputable right to recover from Barrett the whole of the work was a powerful factor to take into account when determining the scope of Rochdale’s duty. In those circumstances it was neither fair, just nor reasonable to impose on Rochdale a duty to carry out and pay for any part of the necessary relief works.

It is not that Rochdale were under no duty. They were under a duty to cooperate in a solution which involved the construction of suitable drainage and a catch pit on their retained land. Whether the duty would have extended to carrying out those works themselves or for carrying out the other works outside the retained land was an open question. The duty did not extend however to obliging Rochdale to meet the whole cost of the relief works.

Appeal allowed.

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