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24 March 2016 | Comment |

Responsibility for floods not caused by the weather

Over the past few weeks we have looked at rights and liabilities arising from flooding in circumstances where rivers and streams have overflowed following heavy rain.

A property can also be damaged by escapes of water from neighbouring land. Perhaps damage has been caused by next door’s pipes bursting, or a water leak from an upstairs flat causes damage to the downstairs flat. It could also be that water has collected and run off the surface of neighbouring land into a property.

What rights and responsibilities do neighbouring landowners have in such cases? Generally any liability will be based on common law principles of nuisance and/or negligence.

The law requires every person to take reasonable care to avoid acts or omissions which are reasonably foreseeably likely to cause loss to a neighbour. A failure to take such care can amount to negligence if damage is caused. A person may be negligent if they fall below the standards expected of a “reasonable person”.

Liability in common law nuisance will arise if I do something on my own land which causes damage to my neighbour’s land. Again, the damage must be reasonably foreseeable, and my actions must be causing an unreasonable interference with my neighbour’s enjoyment of his or her property.

One of the most famous legal cases involving flooding is Rylands v Fletcher [1861]. The principle in this case has since been confirmed to be a type of nuisance. The operators of a mill constructed a reservoir on their land. When water which had collected in the reservoir flooded a local mine via disused shafts, the mill owners were liable for the losses. The court confirmed that any person who brings onto his land and keeps there something likely to do mischief if it escapes must keep it at his peril. Hence if it does escape and causes damage, he will be liable. The principle does not apply to normal use of the land.

Where the use of the land is “normal, natural use”, Rylands v Fletcher will not apply and to establish nuisance, it is necessary to demonstrate unreasonable interference and that the damage was foreseeable.

This was demonstrated in the case of Transco plc v Stockport MBC [2003] UKHL61. In this case, the council owned and built a block of flats. The pipe supplying water to the basement had, unknown to everyone, cracked. The crack was undetected, and water collected into a railway embankment also owned by the council. The embankment collapsed exposing a gas pipe and causing spoil to fall onto adjacent land. Both Transco and the golf club sued the council.

The court held that the council were making a normal natural use of the land and the water supply pipe did not create a special hazard, so Rylands v Fletcher did not apply. As the council were unaware of the problem, they could not be said to have fallen below the standards of a reasonable landowner and the damage was not foreseeable.

So liability will depend on whether the damage was caused by something which the landowner has brought on the land, if that “thing” was something which would naturally do mischief or be dangerous if it escaped. If so, liability might follow, but if not it is necessary to consider what the landowner knew or ought to have known about the likelihood of damage and how a reasonable landowner would have behaved. In the case of the flat owner affected by a leak from above, there may also be a claim against the landlord depending on the nature of the repairing covenants in the lease.

If you would like to speak to someone about the issues raised in this blog, please get in touch with the Property Litigation department at Hugh James on 029 2066 0589.

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