Lambert & Ors v Barratt Homes Ltd & Anor

A measured duty of care owed by a land occupier in respect of a natural or man-made hazard is fact-sensitive. It arises when the occupier knows or ought to know of the hazard and reasonably foreseeable damage. Its scope depends on matters including foreseeability, the ease and cost of abatement, the parties’ resources, and what is fair, just and reasonable. The duty may require access, cooperation or reasonable assistance, but does not ordinarily require an owner who did not cause the hazard to carry out and fund substantial remedial works, particularly where another party caused the nuisance and is liable for the cost. A continuing nuisance permits the duty’s scope to be reassessed as circumstances change.

Householders whose gardens bordered a former playing field claimed damages and other relief after flooding followed Barratt Homes’ development works, which blocked a drainage ditch and culvert. The trial judge in the Leeds Technology and Construction Court held Barratt liable and held Rochdale Metropolitan Borough Council liable for breach of a measured duty to abate the nuisance. Rochdale obtained permission to appeal and an extension of time from Toulson LJ. The central issues were whether the duty required Rochdale, which had not caused the obstruction, to undertake and pay for the relief works, and whether an alternative nuisance claim based on concentrated flow from an artificial feature succeeded.

The Court unanimously allowed Rochdale’s appeal. It upheld the extension of time but did not formally dismiss the claim against Rochdale, leaving open a determination by the trial judge in accordance with this judgment.

1. Extension of time. Applying rule 3.9 of the Civil Procedure Rules, the court accepted that there had been inactivity and some general prejudice. It nevertheless declined to set aside the extension because the lower judgment and consequential order had required clarification and elaboration. [5]
2. Measured duty. The authorities, including Goldman v Hargrave [1967] 1 AC 645, Leakey v National Trust [1980] 1 QB 485 and Holbeck Hall Hotel v Scarborough Borough Council [2000] QB 836, establish a duty owed by one land occupier to another where a known or foreseeable natural or man-made hazard threatens neighbouring land. The scope is fact-sensitive and includes the hazard, foreseeability, ease and expense of abatement, the parties’ resources and ability to protect themselves, and whether liability is fair, just and reasonable.
3. Scope in this case. The duty was continuing and its scope could change as circumstances changed. Rochdale was not responsible for blocking the ditch. It could reasonably be expected to allow access to its retained land without charge and to provide reasonable assistance in obtaining necessary consents. The duty did not extend to requiring Rochdale to undertake or pay the whole cost of the relief works, particularly once Barratt’s liability and the householders’ right to recover the cost from Barratt were established. [19]-[25]
4. The trial judge had materially overstated the duty by treating Rochdale’s failure to construct and fund the drainage works as a breach. The existing findings did not enable the Court of Appeal to determine whether a narrower duty of cooperation or facilitation had been breached or whether it supported a damages claim.
5. Alternative nuisance claim. The claim based on concentrated flow from an artificial feature failed. The distinction between natural and artificial features was an uncertain foundation for liability, and the retained part of the ditch had not caused the flooding. The cause was Barratt’s obstruction of the lower ditch and culvert. The contention based on Broder v Saillard (1875-6) LR 2 ChD 692 and Hurdman v N.E. Railway (1877-8) LR 3 CPD 168 was therefore rejected, with Green v Lord Somerleyton [2002] EWCA Civ 198 providing the relevant comparison. [27]
6. The parties were strongly encouraged to reach a practical accommodation so that the relief works could be completed during the 2010 school summer holidays. [28]

• Court of Appeal (Civil Division) — The appeal by Rochdale Metropolitan Borough Council was allowed in [2010] EWCA Civ 681. The court held that the trial judge had materially overstated Rochdale’s measured duty of care, but did not formally dismiss the claim.
• Leeds Technology and Construction Court — HH Judge Grenfell held Barratt Homes liable for the flooding and Rochdale liable for breach of a measured duty to abate the nuisance in a judgment delivered on 17 February 2009.
• Permission to appeal — Toulson LJ granted Rochdale permission to appeal and extended time for filing the appellants’ notice.