Green v Lord Somerleyton & Ors

An occupier’s Leakey duty to take reasonable steps to prevent a hazard on land causing damage to a neighbour extends to floodwater flowing naturally. The law recognises no general exception for naturally flowing water or for land restored to its natural state.

Whether the duty is breached depends on reasonableness in all the circumstances. Relevant matters include control, practical and proportionate measures, co-operation between affected owners, and existing arrangements for managing the risk. The mere fact that naturally flowing floodwater reaches neighbouring land does not shift the evidential burden under res ipsa loquitur.

An implied drainage easement may extend to all water naturally reaching the dominant land where the conveyance incorporates drainage covenants showing that common intention.

The claimant owned low-lying Priory Marshes. The respondents, as trustees of Scale Marshes, owned land uphill from it. Water from Fritton Lake and the upper catchment reached Scale Marshes and, after the historic Blocka Run became blocked, could pass through drainage dykes onto Priory Marshes.

The claimant sought declarations, injunctions and damages for flooding. The respondents counterclaimed for an easement to drain Scale Marshes, including water from the lake, through the dykes on Priory Marshes. On 8 July 2002, a High Court judge dismissed the claim and declared that the respondents had the easement claimed.

The appeal raised whether the easement covered lake water and whether the respondents were liable in nuisance under the Leakey principle despite the natural flow of the water.

1. Appeal dismissed unanimously; respondents’ cross-appeal allowed. Jonathan Parker LJ, with whom Sir Christopher Staughton and Schiemann LJ agreed, upheld the declaration that the respondents had an easement of drainage through the dykes on Priory Marshes, including drainage of water emanating from Fritton Lake.

2. The court held that the duty identified in Leakey v The National Trust [1981] QB 485 applies to a hazard whether natural or man-made. There is no principled exception for naturally flowing water, or for water flowing after land has been restored to its natural state. The question is whether the claimant’s loss resulted from a failure by the occupier to do what was reasonable in all the circumstances.

3. The respondents had not breached that duty. The December 1993 flood resulted from exceptional rainfall and a pump stoppage without either party’s fault. The exempting proviso in the 1958 Drainage Deed therefore protected the respondents. The claimant, having continued to operate the drainage arrangements after acquiring the land, took their burden with their benefit.

4. No breach was established in relation to later flooding. Res ipsa loquitur did not shift the evidential burden merely because water naturally reached the claimant’s land. Clearance of the Blocka Run required joint action and would have been of doubtful effect unless other stretches and the tidal sluice were also cleared. Its cost was disproportionate to the likely intermittent damage. The existing drainage arrangements were a reasonable allocation of responsibility and allowed arbitration to address changed conditions.

5. The 1921 Conveyance incorporated the 1921 Drainage Deed. Those documents demonstrated a common intention to create proprietary drainage rights, and necessarily reserved an easement for water naturally arriving on Scale Marshes. That included lake water. Although strictly unnecessary, the court also held that the evidence supported the alternative prescriptive claim based on lost modern grant.

• Court of Appeal (Civil Division): Appeal dismissed and respondents’ cross-appeal allowed. The declaration of an easement of drainage was upheld.

• High Court, Chancery Division: On 8 July 2002, His Honour Judge Rich QC dismissed the claimant’s claim and granted the respondents’ declaration that they were entitled to an easement of drainage through the dykes on Priory Marshes.