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Posted on 17th April 2014

Flooding - landowner’s overview

The severity of the weather earlier this year has had huge implications for many farmers in the South East, and has forced the issue of flooding, and the ensuing damage, to the top of their priority list. It has been reported that UK insurers will pay out £1.1bn in flood and storm claims for the period from 23 December 2013 to 28 February 2014. Set out below is a general overview of the rights and duties of landowners and occupiers, which could be crucial if heavy rain in the county prompts flooding next winter.

This overview covers the legal rights and duties for an owner and occupier of land; it does not deal with specific statutory duties which arise, or are imposed, by statute. A landowner is allowed to use their land in any reasonable way, or take reasonable measures to protect their land from flooding.

The law clearly states however that a landowner must not cause any foreseeable loss or damage to their neighbour.

We would advise that landowners maintain any flood defences, and take careful measures to avoid flood damage. They should think very carefully before diverting any rainwater through artificial channels onto a neighbour’s land.

Drains and water courses should be well maintained throughout the year, and reasonable care should be taken to minimise any potential hazards on neighbouring farmland. For example, in one case we have dealt with, the neighbouring farmer constructed a ditch and bund on his land to divert the run-off of rainwater and silt. Nearly 2,000 tonnes of silt was channelled into the neighbouring owner’s ornamental ponds, causing pollution and destroying fish.

The problem was exacerbated by the neighbour using the upslope field for arable (where the winter crop was drilled late), rather then it be seeded for use as pasture.

What needs to be established to successfully pursue a claim?

Claims relating to flooding fall within the sphere of private nuisance. In simple terms, this involves establishing that a duty of care is owed by your neighbour, which has been breached and has caused recoverable loss or damage.

  • Duty owed to a neighbour - In nuisance, an owner or occupier of land owes a general duty of care to a neighbouring occupier or owner in relation to a natural hazard (i.e rainwater) occurring on the neighbouring land.
  • Standard of the duty - The standard of duty required is that the owner or occupier should do what is reasonable to expect of him in his individual circumstances. Reasonableness is assessed by not only what is to be expected between neighbours, but also what is reasonably foreseeable to happen when one owner of land takes action on his land which causes damage to his neighbour’s land.
  • Breach of the duty - Private nuisance is usually caused by a person doing something on their land, which although they are lawfully entitled to do, nevertheless becomes a nuisance when the consequence of their act affects their neighbour’s land by causing physical damage or loss of enjoyment to the neighbour’s land. The damage caused must be substantial or unreasonable, and can arise from a single incident or a “state of affairs”.
  • Recoverable Loss - The loss which can be recovered is actual physical damage or unreasonable interference with property right’s causing loss of enjoyment to land.

lIlustrative case of Green v Lord Somerleyton

This case illustrates the principles set out above, as it involved a claim by one landowner against another for damage caused by flooding due to heavy rainfall.

In essence, the claimant landowner suffered damage caused by water which had overflowed from the defendant’s lake. The Court of Appeal said that the defendant was under a duty to the claimant to the extent that the flooding of the claimant’s land was due to the defendant’s failure to do what was reasonable in all the circumstances.

However, on the facts of this case, the defendant had actually discharged (and not breached) his duty. The court considered it relevant that the claimant had not made it clear to the defendant what they were expected to do to prevent the flooding, and that the claimant had not taken any steps to remove or reduce the risk of flooding by clearing an area of the water course for which he was responsible.

Published by

Allis Beasley

Partner

T: 01622 776454

Email Allis

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