Lambert & Ors v Barratt Homes Ltd (Manchester Division) & Anor

An occupier may owe a measured duty of care to abate a naturally occurring nuisance where it knows, or ought to know, that a hazard on its land is causing foreseeable damage to neighbouring land. The duty is assessed by reference to all the circumstances, including the practicability and cost of remedial works and the parties’ resources.

A developer is liable in negligence and nuisance where it foreseeably obstructs an established natural watercourse. A narrow gap that is foreseeably vulnerable to debris is not an adequate substitute for the pre-existing drainage path. Contractual indemnities are construed strictly and will not ordinarily cover the purchaser’s own negligence without clear words.

The claimants owned properties adjoining land formerly used as school playing fields. Barratt Homes Ltd developed part of the field, while Rochdale Metropolitan Borough Council retained the upper part.

The claimants alleged that Barratt obstructed an established water path along the boundary, causing recurrent flooding, and that Rochdale later failed to co-operate in abating the resulting nuisance after becoming aware of it. Barratt sought an indemnity from Rochdale under clause 20(a) of the sale agreement.

The court determined causation, liability in negligence and nuisance, Rochdale’s measured duty of care, and the scope of the contractual indemnity.

1. Barratt’s liability. The pre-existing water path drained surface water from the retained land without flooding the Springfield Road properties. Barratt’s eastern boundary fence obstructed that path. The resulting narrow gap was foreseeably liable to become blocked by natural debris and other objects, and could not realistically carry the relevant flow. The obstruction caused the flooding. Barratt was therefore liable in negligence and nuisance for the resulting loss and the cost of the viable remedial scheme.
2. Rylands v Fletcher. The construction of houses was not a special or extraordinary use of land. The rule in Rylands v Fletcher therefore had no application.
3. Measured duty. An owner of higher land may owe a measured duty of care where it becomes aware that naturally draining water is causing damage to lower land. The duty arose when Rochdale knew of the flooding problem by December 1998 and could reasonably foresee continuing damage. The relevant circumstances included the need for works on Rochdale’s retained land, the claimants’ inability to complete the scheme themselves, Rochdale’s ownership of the source land, and its role in selling the development land. Rochdale’s failure actively to co-operate breached that duty.
4. Nuisance. An occupier is liable where it creates, authorises, adopts or continues the state of affairs giving rise to the nuisance. Barratt’s obstruction constituted an unreasonable use of its land. Rochdale’s failure to abate the continuing nuisance also constituted a breach of its measured duty, although Barratt was the primary cause.
5. Indemnity. Clause 20(a) did not indemnify Barratt against the claimants’ claims. The clause was construed strictly. The water path did not prevent or interfere with the development, the wording did not clearly cover ordinary maintenance, and it did not clearly cover Barratt’s own negligence. The knowledge exception also applied. Judgment was entered accordingly, with the precise terms and future case-management directions to be determined at a later telephone hearing.

The judgment records that a split trial on liability and causation had been ordered by His Honour Judge Raynor QC on 4 February 2008. No appeal history is stated.