Court v Van Dijk & Anor

In a nuisance claim involving drainage, the alleged interference must be tied to the claimant’s actual easement. A right to use a common private drain does not confer a right to discharge through a neighbour’s gully or onto the neighbour’s land. A neighbour may therefore disconnect that gully and reasonably pen back water emerging onto his or her land, even if flooding on the claimant’s side is foreseeable. The court must also decide the case on the pleaded factual basis. It is procedurally unfair to impose liability by relying on earlier works which were not pleaded and which the defendant had no fair notice to investigate or answer.

The Van Dijks owned 12A and Mrs Court owned the adjoining property, 12B. The properties shared a private drain. After drainage works at 12B in 2007, water flooded 12A. The Van Dijks pleaded that the 2007 works had capped off their drainage outlet and brought a nuisance claim against Mrs Court. During the trial, a cap installed during earlier works in 2000 was discovered. The recorder treated the 2000 and 2007 works together as establishing nuisance and awarded damages. He also rejected Mrs Court’s independent contractor defence and indemnity claim against the council. The appeal concerned whether the recorder had decided an unpleaded case, whether the 2007 works constituted nuisance, and the related conditional grounds.

Lord Justice Floyd gave the leading judgment, with which Lord Justice Sales agreed.

1. Drainage easement. The owners of 12A had an easement to use the common private drain. They had no general right to discharge waste water through Mrs Court’s gully or onto her land. An action alleging interference with a drainage easement therefore required the easement and the alleged interference to be identified precisely.
2. Unpleaded factual case. The pleaded case against Mrs Court was based on the 2007 works. Once it was discovered that the private drain had been capped during the 2000 works, the 2007 works could not properly be treated as the interference with the easement. The 2000 works were the only identified interference, but they had not been pleaded. Mrs Court was entitled to assume that the case was based on the 2007 works and had not been given fair notice that she needed to investigate the 2000 works, call the relevant witnesses, join the builder or plead an independent contractor defence. The recorder therefore erred in deciding the claim on that basis.
3. Reasonable use of land. The alternative nuisance claim also failed. The 2007 works disconnected Mrs Court’s gully and reasonably penned back water emerging onto her land. Applying the principles in Home Brewery Co. Ltd v William Davis & Co (Leicester) Ltd [1987] QB 339, the use of land was not unreasonable merely because Mrs Court knew that water might then emerge in the Van Dijks’ yard. The drainage easement was not engaged because the water was being prevented from escaping through the gully, rather than being obstructed while flowing through the private drain under the easement.
4. The court did not call the respondents on the challenge to the direction of flow, because there was a proper basis for the recorder’s factual finding. The independent contractor and indemnity issues were conditional on liability and were not decided.
5. The appeal was allowed. The order against Mrs Court was replaced by an order dismissing the claim against her.

• Court of Appeal (Civil Division): [2016] EWCA Civ 483. Appeal allowed and the claim against Mrs Court dismissed. The conditional independent contractor and indemnity grounds were not determined.
• York County Court: On 10 September 2013, Mr Recorder Tim Kerr QC awarded the Van Dijks damages of £4,227.88 plus interest for nuisance and rejected Mrs Court’s related defences and indemnity claim.