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Vernon Knight Associates v Cornwall Council, Court of Appeal, 30 July 2013

16 August 2013
The Issues

Highways Act 1980 – section 41 – flood water

The Facts

The claimant owned a holiday village in Cornwall which suffered flood damage in November 2006 and September 2008. The holiday village was bounded one part with a boundary wall. Honicombe Road ran alongside the boundary wall. At one part of Honicombe Road there was a dip which coincided with the point at which the boundary wall of the holiday village ended. Surface water running off the area to the north of Honicombe Road (known as the Donkey Park) tended to collect at the bottom of the dip and if the water was not carried away by drains, it would eventually surge past the end of the wall and into the holiday village.

In or about 2000 the council installed a series of drains, gullies and a catch pit in the dip intended to carry away any water which would collect there. The gullies from time to time became blocked with leaves, sticks and other debris. When the gullies were blocked, flooding was liable to occur. The council through an agent carried out cyclical maintenance, visiting each stretch of road in turn and carrying out necessary maintenance work. The team responsible for this area was known as Gang 606 and consisted of two people. They had to deal with an area of land comprising approximately 12 square miles and 150 miles of road. They would carry out routine work and, when they were notified of a category 1 defect, deal with the emergency or defect. Category 1 defects required remedial action within 24 hours.

In November 2006 there was very heavy rainfall together with high winds. The BBC online news reported torrential rain and flooding in the area. The gullies in Honicombe Road were blocked with leaves and debris. These had collected during a six week period since the most recent visit by Gang 606. A dip in the road became flooded and in the evening floodwater surged into the holiday village causing extensive damage. The incident was reported by the manager of the holiday village at 7.45 and at 9.45 Gang 606 arrived, the gratings were cleared and the flood abated. Damage was valued at £123,391.41.

In September 2008 there was a second incident when again there was heavy rainfall and again the dip in Honicombe Road became flooded. Once again, because the gullies were blocked, floodwater poured into the holiday village and on this occasion the damage was quantified at £18,233.77. The council’s road maintenance records during 2008 had become lost but it seemed likely the last maintenance at Honicombe Road was in early July 2008.

The claimant issued proceedings and at trial the judge found for the claimant on liability. The judge found:
* firstly, that the council owed a duty to do what was reasonable in all circumstances to prevent or minimise the known risk of flood damage to the claimant’s property;
* secondly, that they knew or must have been presumed to have known of the high risk of flooding at the Honicombe dip (especially during Autumn);
* thirdly, that the council had a system in place to prevent the gullies from becoming blocked, but that there was no standard procedure requiring rural maintenance teams to check hot spots during bad weather and the teams were not required to identify hot spots to their line manager. However, the council’s system was adequate because Gang 606 knew the hot spots and cleared the gullies on its own initiative when necessary and by that practice had prevented flooding at Honicombe Road on a number of occasions, although on these two occasions which were the subject of the claim, they had failed.

In the absence of any reasonable explanation or excuse for the failure to attend on these two occasions, the council was in breach of its duty.

The defendant appealed.

The Decision

The authority had a duty to maintain the highways under Section 41 of the Highways 1980 which included associated drains.

There was potentially also a liability for nonfeasance in respect of natural nuisance. Certain principles could be extracted from the authorities that are relevant to the appeal, namely:

a. the landowner owed a measured duty in negligence and nuisance to take reasonable steps to prevent natural occurrences on his land from causing damages to neighbouring properties

b. in determining the content of the measured duty, the court had to consider what was fair, just and reasonable as between the two landowners and must have regard for all the circumstances including the extent of foreseeable risk, the available preventative measures, the costs of such measures and the resources of the parties

c. where the defendant was a public authority with substantial resources the court had to take into account the competing demands on those resources and the public purposes for which they were held. It might 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.

Whilst there were limits on what could be expected from local authorities in respect to flood prevention, in this case the judge had taken into account all the relevant circumstances. He had highlighted the factors which were particularly significant. He had identified each of the relevant factors and had clearly had them in mind. He treated as critical the fact that on two occasions, and for no good reason, Gang 606 departed from its normal practice and had failed to attend the Honicombe hot spot during exceptionally heavy rainfall. Although he could have explained more fully why he discounted the other circumstances, the matters which he had emphasised were the critical factors. The fact that the water would have collected on Honicombe Road came from external sources did not make this a special case because that was true in many of the flooding cases. The council’s argument in respect of resources was an important one. However, in the case relied upon by the council, namely Lambert v Barratt Homes Ltd, the local authority was criticised for not installing infrastructure works to prevent floods from occurring.

The authority argued reasonably that those works would be expensive. In this case however the council had decided that the flood risk was serious enough to warrant infrastructure works and had carried those works out and the complaint was that for no reason they had failed to make proper use of that installation. The council also complained that the judge had erred in placing the evidential burden on the council to establish what Gang 606 was doing on the two critical dates. This argument was unacceptable. What the council staff and their agent’s staff were doing on any given date was a matter peculiarly within the council’s knowledge. The claimant could only establish those facts by examining disclosed documents or cross-examining witnesses.

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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