Property law reports

NUISANCE FLOODING

Flooding - drainage easement - appellant's land flooded by water emanating from respondents' land - whether nuisance liability for naturally flowing water - whether earlier conveyance impliedly reserving easement of drainage to respondents' predecessor - appeal allowed

Green v Lord Somerleyton and others: CA (Lords Justice Schiemann and Jonathan Parker and Sir Christopher Staughton): 28 February 2003

The respondents owned an area of marshland known as Scale Marshes, in Norfolk.

The adjacent marshland, Priory Marshes, belonged to the appellant.

Both marshes had previously belonged to the respondents' predecessor, who, in 1921, had sold Priory Marshes by way of a conveyance expressed to be 'subject to and with the benefit of' a deed of covenant of the same date.

By that deed, he covenanted to operate a drainage pump 'whenever requisite for the purpose of draining the said lands', those lands being identified on an attached plan as including Priory Marshes and Scale Marshes.

In December 1993, following a period of heavy rainfall, serious flooding occurred at Priory Marshes, caused in part by water emanating from Scale Marshes itself, and by water passing through those marshes from a lake owned by one of the respondents.

Priory Marshes was flooded intermittently thereafter.

The appellant brought a claim against the respondents in nuisance, seeking a declaration that the respondents did not enjoy a general and unrestricted right to discharge water from Scale Marshes onto Priory Marshes.

He claimed, in particular, that drainage from the lake was not permitted.

The respondents counterclaimed for a declaration that they were entitled to drain all water on Scale Marshes, including that emanating from the lake, into the dykes on Priory Marshes.

The judge found that there was no nuisance liability, holding, in reliance on Thomas & Evans Ltd reliance on Thomas & Evans Ltd v Mid-Rhondda Co-operative Society [1941] 1 KB 381, that the duty of care identified in Leakey v National Trust for Places of Historic Interest or Natural Beauty [1980] QB 485 did not arise in relation to the natural flow of water.

He granted the declaration sought by the respondents on the ground that the easement they claimed had been impliedly reserved by the 1921 conveyance.

The appellant appealed.

Caroline Hutton (instructed by Mears Hobbs & Durrant, Great Yarmouth) for the appellant; Nicholas Caddick and Alexander Learmonth (instructed by Nicholsons, Lowestoft) for the respondents.

Held: The appeal was dismissed.

The Leakey duty applied to the respondents in respect of flooding, absent any relevant easement, but, on the evidence, they had not breached that duty.

The principle was that a duty of care applied to an occupier who had sufficient control over the hazard that constituted the nuisance for it to be reasonable to make him liable for the foreseeable consequences of his failure to remove the hazard: LE Jones Ltd (Insurance Brokers) v Portsmouth City Council [2002] EWCA Civ 1723; [2003] 1 WLR 427 applied.

There was no reason why that basis of liability should not apply to floodwater.

Thomas established no exception to the Leakey duty in respect of naturally flowing water, since, although the Leakey test had not been applied in that case, the same result would have been reached if it had: Elston v Dore (1982) 43ALR 557 considered.

The tort of nuisance was susceptible to a process of development and refinement, and it had moved on since Thomas.

The judge had been right to find that the respondents enjoyed an easement of drainage.

The wording of the 1921 conveyance effectively incorporated the deed of covenant by reference.

The clear inference was that the provisions of the deed were intended to have the character of proprietary rights.

In the light of that, and the terms of the deed, the inescapable conclusion was that the 1921 conveyance impliedly reserved to the vendor and his successors in title an easement of drainage in the terms claimed by the respondents.

That easement extended to water emanating from the lake, as it could not have been the common intention of the parties to treat such water any differently from other water finding its way into the dykes on Scale Marshes and thence onto Priory Marshes: Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 applied.

OPTION PERPETUITY RULE

Contract for sale of farm - owners of vendor company entitled to repurchase in certain events - no time limit prescribed for exercise of option - whether option invalidated by section 9(2) of Perpetuities and Accumulations Act 1964 - whether commencement of period deferred until occurrence of triggering events - option held void

Wilson and another v Truelove and another: ChD (Simon Berry QC, sitting as a deputy judge of the division): 21 February 2003

In 1974, a company formed by the defendants sold the freehold of a farm to the claimants, a married couple and their son.

Clause 3 of the contract provided: 'On the death of the survivor of the first two named purchasers the third named purchaser shall give to the defendants jointly [or in certain events their issue] the right to re-purchase the property at the price of twenty thousand pounds with the benefit of vacant possession'.

No time limit was prescribed for the exercise of the right to purchase.

The claimants sought a declaration that the right to repurchase was rendered void by section 9(2) of the Perpetuities and Accumulations Act 1964, which prescribed 21 years as the perpetuity period in the case of 'a disposition consisting of the conferring of an option to acquire for valuable consideration any interest in land'.

Citing Maudsley, The Modern Law of Perpetuities, p188, the defendants contended, among other things, that no such option could come into existence before one of the triggering events specified in clause 3 had occurred, and that the period had accordingly yet to begin.

Andrew Cosedge (instructed by Toller Hales & Colcutt, Northampton) for the claimants; Stephen Shaw (instructed by Anthony Collins, Birmingham) for the defendants.

Held: The claim was allowed.

The right to repurchase was properly regarded as an interest in land that arose on the execution of the 1974 agreement or, at the very latest, the conveyance.

By reason of the grant, the 'right' to 'take...

away' the claimants' estate or interest in the farm was immediately vested in the grantee of the right to repurchase: see London & South Western Railway Co v Gomm (1882) 20 ChD 562 at p581.

No analogy could be made with a conditional option, since the various triggering events were, by their nature, events in respect of which it was to be expected that one would occur.

Their purpose was not to specify a condition that might or might not occur.