NUISANCE

Highway authoritys predecessor culverting stream culvert adequate when built but subsequently unable to cope after heavy rains highway authority liable in nuisance for flooding of adjacent propertyBybrook Barn Garden Centre Ltd and others v Kent County Council: CA (Peter Gibson, Waller and Jonathan Parker LJJ):1 December 2000The claimants occupied a garden centre near a stream which passed under a road via a culvert built by the highway authoritys predecessors.

Originally the culvert was of adequate capacity and created no nuisance.Subsequently the streams volume increased when the area was developed and the culvert, unable to cope with the flow velocity during heavy rain, became an obstruction and aggravated any flooding.

The stream flooded the garden centre, extensively damaging the claimants premises and stock.

The claimants brought an action seeking damages in nuisance and negligence and an injunction to restrain further nuisance.

The deputy judge dismissed the action.

The claimants appealed.Howard Palmer QC and Neil Moody (instructed by Williams Davies Meltzer) for the claimants.

James Dingemans (instructed by Badhams) for the authority.Held, allowing the appeal, that, although originally the culvert had not been a nuisance and there had been no expectation it would cause nuisance, the authority had become liable once it was aware that the culvert was inadequate to allow the stream to run freely and flooding would result; that it was not under a strict liability for all eventualities, but it did have a duty to do what was reasonable for it to do; that factors favouring liability were the high obligation on the highway authority, as successor to one which had chosen to culvert the stream, to continue to see that it flowed there, and the fact that the authority had means of preventing the flooding by enlarging the culvert at some cost but without great difficulty; and that, consequently, the injunction would be granted.