Georgina Partakis-Stevens & Anor v Baljit Sihan & Ors

Where building or landscaping works artificially alter the flow of naturally occurring rainwater and cause foreseeable damage to neighbouring land, the person creating the nuisance may be liable without relying solely on a measured duty of care. A landowner who acquires land with an existing nuisance owes a measured duty to take reasonable steps to abate it, assessed by reference to the occupier’s actual circumstances. The creator of a nuisance remains liable after transferring the land where the nuisance continues. A mandatory injunction requires a very strong probability of grave future damage, inadequacy of damages, legality and practicability of compliance, including sufficient certainty as to the works required. The court may prefer damages and limited injunctive relief where technical evidence does not establish a sufficiently precise or proportionate scheme.

The claimants owned no 15 Fletsand Road. They alleged that works undertaken by the former owners of adjoining no 17, including raising garden levels with excavated clay and constructing paved areas, caused continuing flooding and waterlogging. They claimed nuisance and negligence against the former owners and nuisance against the purchasers of no 17.

The former owners and purchasers brought related claims concerning contribution, breach of contract, misrepresentation and an alleged indemnity. The central issues were causation, the basis and scope of nuisance liability, the proper remedial response, and the purchasers’ contractual and misrepresentation claims.

1. Primary claim. The claimants succeeded in nuisance against the former owners, who were also liable in negligence. The works substantially altered the natural surface-water conditions, and the flooding was caused or materially contributed to by those works. The causal conclusion was reached on the balance of probabilities from the temporal evidence, witness evidence, photographs and the more persuasive technical analysis.
2. The former owners’ liability did not depend solely on breach of a measured duty of care. The artificial alteration of levels, use of excavated clay and creation of steep slopes and paved areas caused foreseeable water discharge towards the neighbouring property. Their failure to investigate or take effective remedial measures after complaints reinforced liability.
3. The purchasers did not create the nuisance. Their liability arose under the measured duty applicable to an occupier who knows or ought to know of an existing nuisance. They were entitled to refuse extensive re-levelling or a technically uncertain land-drainage scheme, but were not entitled to do nothing about run-off from the paved areas. A mandatory injunction was therefore ordered requiring slot drains around the relevant paved areas, connected to the public drainage system. No damages were awarded against them.
4. A broader injunction requiring an interceptor drain and attenuation-irrigation system on no 17 was refused. The proposed works required further investigation and design, damages were sufficient, and the requirements were not sufficiently certain for a mandatory order.
5. The claimants were awarded £59,500 against the former owners, comprising remedial works and vegetation damage, together with modest general damages. The purchasers succeeded in their claims against the former owners for fraudulent misrepresentation and breach of clauses 10.1 and 10.2 of the sale contract. Their recovery included the reasonable costs of complying with the injunction and relevant litigation costs, with assessment deferred if necessary. The alleged separate indemnity in the April 2018 email failed.