Tort – nuisance

Citation

Waterson, G. and Lee, R. (2001), "Tort – nuisance", Property Management, Vol. 19 No. 2. https://doi.org/10.1108/pm.2001.11319bab.003

Tort – nuisance

Tort – nuisance

Bybrook Barn Garden Centre Ltd v. Kent County Council, The Times, 5 January, 2001

This case was an appeal against the decision of a deputy judge of the Queens Bench Division of the High Court (see Property Management, Vol. 18 No. 2) to dismiss their action for damages against Kent County Council.

Readers will remember that the garden centre and other nearby traders suffered repeated flooding caused by the inadequate size of a culvert carrying a natural stream under the adjacent highway. The culvert had been installed by the predecessor of the Kent County Council. When constructed the culvert was adequate to take the flow of water and neither caused a nuisance then nor did it seem to have the potential to do so in the future. However, subsequent development in the area had caused the volume of water in the stream to increase with the result that the culvert became inadequate to carry the flow of water, thus resulting in the flooding complained of.

The Court of Appeal said that the question was whether the local authority was entitled to say that since there was no nuisance originally and no potential for it that it now had no liability to abate the nuisance despite its knowledge of the flooding and irrespective of whether or not it was practicable to enlarge the culvert and abate the nuisance. In the Queens Bench Division the deputy judge had felt constrained by the decision in Radstock Co-operative and Industrial Society Ltd v. Norton-Radstock Urban District Council [1968] Ch. 605 to find that there was no liability on Kent County Council to abate a nuisance that did not exist when the culvert was created.

After consideration of authority concerning liability for nuisances caused by things naturally on the land (Leakey v. National Trust for Places of Historic Interest or Natural Beauty [1980] 1 QB 485) and authorities where the nuisance was not created by the defendant (Sedleigh Denfield v. O'Callaghan [1940] AC 880, Goldman v. Hargraves [1967] AC 645) their Lordships held that the deputy judge's approach was wrong, as the decision in Radstock was inconsistent with those in Leakey, Sedleigh and Goldman, which all indicated that a defendant is not entitled to say that if something was not causing a nuisance when it came onto the land or when it was constructed there could be no liability imposed on him.

Their Lordships felt that Kent County Council, as the successor to the authority which had chosen to put the stream in the culvert under the highway, was under a "high obligation" to see that it flowed there and must do what was reasonable to achieve that. The fact that the authority had the means of preventing the flooding by enlarging the culvert without difficulty, albeit at some cost, was a factor pointing to liability.

The appeal was unanimously upheld and an injunction granted. As flooding of this kind appears to be an increasingly common occurrence, this decision must be of interest to many local authorities.