Colin Eaton & Anor v Cheshire East Council

In a private nuisance claim arising from recurrent flooding from a highway, a highway authority’s common-law duty is measured by what is fair, just and reasonable in all the circumstances. The assessment is multifactorial and includes the foreseeable risk, available preventive measures, their cost, and the authority’s resources and competing public demands.

Resource constraints do not justify ineffective reactive maintenance where a known risk persists and reasonable preventative work can be undertaken with existing resources. Water arriving from adjoining land is not automatically outside the scope of the duty. On appeal, factual and evaluative findings attract restraint, and procedural irregularities justify intervention only when serious and unjust. A court may assess property blight without precise valuation evidence and may award loss of amenity to a co-occupant supported by the other occupant’s evidence.

The claimants owned a property whose driveway and front garden repeatedly flooded from water running along a public highway between 2012 and late 2024. The County Court at Chester, before Mr Recorder Shaw, found the council liable in private nuisance and awarded £42,500, comprising £25,000 for diminution in value and £17,500 for loss of amenity. The council appealed on liability, causation, findings of fact, trial procedure and quantum.

The High Court considered whether the judge had imposed an excessive standard on a highway authority with competing flood-risk demands, whether the water’s source mattered, whether the trial had been procedurally unfair, and whether the damages awards lacked an evidential or procedural basis.

1. Appeal standard. Under Civil Procedure Rules 1998 rule 52.21(3), the appeal was a review rather than a rehearing. Applying Volpi v Volpi [2022] EWCA Civ 464, the court could not interfere with primary factual or expert-evidence findings merely because it might have reached a different conclusion. The findings had to be plainly wrong, or the decision had to be wrong or unjust because of a serious procedural irregularity.
2. Liability in nuisance. Vernon Knights Associates v Cornwall Council [2013] EWCA Civ 950 established the applicable measured common-law duty. The court had to assess what was fair, just and reasonable by considering the foreseeable risk, available preventive measures, their cost, and the parties’ resources and competing demands. The distinction between highway water and surface water was not a categorical limit on liability. Water arriving on the highway from adjoining land did not prevent liability.
3. The judge had not imposed a legally excessive duty. Whether a highway authority should check a known hotspot before forecast bad weather was a factual evaluation, not a rule requiring checks of every vulnerable gully. On the findings, the council knew of a persistent risk, its reactive maintenance had been ineffective, and preventative work could be undertaken with existing resources at no additional cost. The liability appeal was therefore dismissed.
4. The procedural complaints failed. An unaccompanied site visit was not automatically unfair where it merely familiarised the judge with an undisputed layout and involved no testing or investigation. A further visit was a case-management matter. The judge was also entitled to ask questions, admit a late statement, allow a schedule to be signed at trial and permit adoption of a short joint statement, since the council suffered no material prejudice and the judge did not enter the arena.
5. The failure to obtain permission under Civil Procedure Rules 1998 rule 35 did not require exclusion of the valuation report. The council knew of the report, addressed its substance, and could have sought its own evidence or cross-examination. The judge attached little weight to the report and was entitled to assess diminution in value himself. Once blight was established, he was not required to reject the claim merely because the precise figure lacked detailed valuation evidence.
6. Evidence from Mr Eaton could support a finding that both co-occupiers suffered loss of amenity. The judge was entitled to award each claimant £8,750. Although it would have been preferable to invite submissions before exceeding the scheduled sum, the £2,300 excess did not create a serious procedural irregularity or an unjust result. Celebrity Speakers v Daniel [2023] EWHC 2158 was distinguishable because it concerned the effect of the amount stated in a claim form, not a pleaded and scheduled valuation at trial. The appeal was dismissed in its entirety.

1. County Court at Chester: Mr Recorder Shaw tried the private nuisance claim on 17–19 September 2025 and found Cheshire East Council liable. He awarded £42,500, comprising £25,000 for diminution in value and £17,500 for loss of amenity.
2. High Court (King’s Bench Division): Permission to appeal was granted by Bright J on 20 March 2026. Mr Justice Mansfield dismissed the appeal in its entirety on 22 September 2026.