Mr and Mrs Tayton v (1) Warwickshire County Council and (2) Rugby Borough Council
High Court in Birmingham (Technology and Construction) before HHJ Sarah Watson
After a six-day trial, the claimants’ flooding claim for an injunction and for damages in nuisance against both local authorities was dismissed.
The claimants are the owners of Brookside Cottage in Ansty, Warwickshire. They purchased the property in 2013. It consists of the cottage, a garden and a field. The garden and field are separated by a brook which runs along the boundary of the field. The claimants’ intention was to secure planning permission to develop the field into a small residential housing estate. The field is located in the greenbelt. An application for planning permission in 2016 was refused with objectors referring, in part, to potential flooding of the site as the basis for their objections. A second application and a subsequent appeal also failed. The claimants accept that such permission is unlikely to be secured in the future.
It was alleged that two culverts were the cause of the flooding, an arch culvert and a box culvert. The allegation was that both culverts were inadequate to cope with the flow of water from the brook, causing the water to back up and overtop. Warwickshire CC accepted that it owned the arch culvert, was responsible for it and that it had altered the culvert in 1977. The claimants alleged that the box culvert was built and/or caused to be built by Rugby BC. This was denied. The injunctive relief sought was to require the local authorities to alter the culverts to increase their capacity.
The claim against Rugby BC was dismissed on the simple basis that the judge held that Rugby BC did not own the land on which the box culvert is situated, had no lease over the land, did not build or maintain the box culvert and was not legally responsible for it.
The claim against Warwickshire CC was considered against the backdrop of settled principles in the law of nuisance (Bybrook Barn Garden Centre v Kent County Council  Env LR 30), in particular the scope for strict liability in the event that, at the date of a defendant’s interference with a watercourse, it was foreseeable that it would give rise to a nuisance in flooding. The trial judge gave careful consideration to the expert evidence in the case provided by the expert for each party as well as a hydraulic modelling of the watercourse. Ultimately the claimants’ case failed on causation grounds, specifically (i) that they had not proved that the cottage or the garden had ever flooded as a result of the brook overtopping and (ii) overtopping of the brook had only contributed to flooding of the field on one occasion, the cause of which was obstruction of the channel and not any inadequacy in the design or dimensions of the culverts. In short, the arch culvert had not caused flooding and was also not the cause of any flood risk to the claimants’ property.
This was a typically complex and hard-fought flooding action with the claimants represented by both leading and junior counsel. As is often the case in claims of this type, the claimants’ land was susceptible to flooding for reasons entirely unconnected to the defendants, including impermeable ground, topography and an adjacent road ditch that was susceptible to overtopping. Crucially, the flooding was not a causative consequence of Warwickshire CC’s apparatus or anything else that came within the duty that it owed to the claimants in the law of private nuisance. The positive outcome for Warwickshire CC was of considerable financial importance. The injunctive relief to enlarge the arch culvert was likely to cost in excess of £300,000 and had the potential to increase flood risk further downstream.
Weightmans LLP acted for Warwickshire CC in this matter on instructions from the council and its insurers.