Nuisance: TCC confirms applicable test in case of flooding caused by construction works
The High Court has recently handed down judgment in Partakis Stevens v Sihan & Ors [2022] EWHC 3249 (TCC) following a two-week trial in the Manchester TCC at which Nicola Atkins acted for the Claimants.
Background
The case involved a tri-partite dispute over a residential property development (“the development”) in Cheshire that adjoins the Claimants’ property. The Claimants alleged that groundworks to the rear of the development, during which large amounts of clay soil were excavated and re-laid, had increased surface water runoff downslope to their property resulting in extensive flooding.
Following completion of the development no.17 was sold by the developer (the First and Second Defendant) to the Third and Fourth Defendants, the former Manchester United goalkeeper, Sergio Romero, and his wife. The Claimants alleged that despite being put on notice of the water ingress shortly after the sale completed Mr and Mrs Romero failed to take reasonable steps to abate the nuisance as they were required to. Mr and Mrs Romero brought an additional claim against the developer for fraudulent misrepresentation and breach of the sale contract.
Judgment
HHJ Davies upheld the Claimants’ claim in nuisance against all four defendants, accepting the Claimants’ expert engineering evidence that the development works had caused the ongoing flooding. In relation to the developer the Judge held that the applicable standard of care was objective, rather than the measured duty derived from Leakey v National Trust [1980] QB 485, even though the overland flow of rainwater had occurred naturally from the development to the Claimants’ property pre-development and the developer had not artificially collected the water via piping or culverting. Liability was established because the developer had created a nuisance by carrying out works that made the ‘natural’ position materially worse.
In reaching his decision the Judge cited with approval paragraph 19-131 of Clerk & Lindsell on Torts (23rd ed.), in which the editors rely on the Court of Appeal’s decision in Hurdman v North Eastern Railway Co (1878) 3 C.P.D. 168 as authority for the proposition that a defendant will be liable where construction works on their land cause water (even if arising from natural rainfall only) to pass on to and damage neighbouring land.
Further, the Judge held that this was not a situation (as in Cambridge Water Co v Eastern Countries [1994] 2 AC 264) in which the mechanism of damage was unpredictable at the date of the allegedly unreasonable conduct. The developer had in fact taken precautionary steps during construction works to prevent increased water ingress from no.17 to no.15; the very occurrence now being complained of by the Claimants. The developer had also been notified by the Claimants on several occasions prior to the sale of no.17 that water ingress to no.15 was occurring but had discounted their complaint. This was relevant to the issue of foreseeability since the relevant flooding was not a one-off event but was alleged to have occurred on a regular basis since 2016.
The full judgment can be found here.
