Bybrook Barn Centre Ltd & Ors v Kent County Council

A highway authority which constructs and controls a culvert is not strictly liable for every later flood merely because the culvert was originally substituted for a natural watercourse. Liability depends on foreseeability and the circumstances. Where later, non-wrongful changes increase the flow, the authority may nevertheless come under a duty to abate the resulting nuisance once it knows of the danger. The duty is to do what is reasonable, having regard to the seriousness of the risk, the practicability and cost of remedial works, the authority’s means, and the neighbour’s ability to protect itself. A statutory highway authority has no special immunity from nuisance unless statute provides one.

The claimants owned or occupied premises damaged when Bockhanger Dyke burst its banks after a culvert beneath Cemetery Lane proved unable to carry increased flows. The culvert had been constructed by the highway authority’s predecessors and remained under the authority’s control.

The Deputy High Court judge found that the culvert had been adequate when constructed, that later development in the catchment area had increased the flow, and that the authority knew by about 1990 that the culvert was inadequate. He dismissed the nuisance claim, considering himself bound by Radstock Co-operative and Industrial Society v Norton-Radstock U.D.C. [1968] Ch. 605. The central issue was whether the authority was liable for failing to enlarge a culvert which had not originally constituted a nuisance.

1. Appeal allowed. The Deputy judge was wrong to regard Radstock Co-operative and Industrial Society v Norton-Radstock U.D.C. [1968] Ch. 605 as preventing liability merely because the culvert was not a nuisance when constructed.
2. The strict liability principle illustrated by Corporation of Greenock v Caledonian Railway Company [1917] AC 556 did not apply on these findings. The culvert was adequate when built, and the later increase in water flow was not reasonably foreseeable.
3. However, the development of the law in Sedleigh-Denfield v O'Callaghan and Others [1940] AC 880, Goldman v Edeson Hargrave [1967] AC 645 (PC), and Leakey v National Trust [1980] 1 QB 485 established that an occupier may have a duty to abate a nuisance which was not created by him, where he knows of it and can reasonably prevent or reduce it.
4. The applicable test was whether the defendant did what it was reasonable to do. Relevant considerations included the seriousness of the danger, the practicability and cost of abatement, the defendant’s means, and, where relevant, the neighbour’s ability to protect itself.
5. The authority knew that the culvert was inadequate, could have enlarged it for approximately £80,000, and had control of the structure. The circumstances supported liability. An injunction was accepted in principle, with its precise terms to be addressed separately.

• High Court of Justice, Queen’s Bench Division: On 5 November 1999, Mr Robert Owen QC, sitting as a Deputy High Court judge, dismissed the claim in nuisance.
• Court of Appeal (Civil Division): The court allowed the appeal and held that the authority was liable under the applicable reasonableness test.