Natural Neighbourly Nuisance

It has long been the case that if something that happens on your land spills onto your neighbour’s land you the landowner can be liable for the damage caused.

There has been an exception for “natural nuisances”, something caused by nature rather than by man – so for example, flooding caused by heavy rain. However case law developed and this exception was moderated and imposed a “measured duty” on a landowner to prevent natural nuisances which balances the risks, possible remedial measures and the resources and abilities of both sides.

A recent case, House Maker (Padgate) Ltd v Network Rail Infrastructure [2022] EWHC 1482 (TCC), has developed and clarified what that “measured duty” actually means. In this case Network Rail knew that a site’s drains needed overhauling and then knew that the process of improvement had been further set back and delayed because of a collapsed drain. The problems with the drains led to a site next door flooding.

The site next door was due to be re-developed into housing and that development work couldn’t proceed until the drainage situation was resolved. Network Rail only carried out repairs and improvements to the drains after the developer issued court proceedings against it and the development was delayed by over two years.

The court decided that had Network Rail dealt promptly with the drainage issues the site could have been developed when initially planned. The background was that Network Rail knew there was an issue and failed to prioritise the repairs/replacement even when they were told about the flooding. The developer was able to recover the financial loss it had suffered as a result of the delay.

The following are important considerations in deciding whether a landowner can claim against a neighbour for a natural nuisance:

fairness, justice and reasonableness between the respective landowners.

The factual circumstances: including knowledge of the potential risk, what can be done to reduce the risk and the cost of that action.  The resources of both landowners, including whether one of the landowners is a public body.

If your land is affected, the first step is to let your neighbour know and see if you can agree what reasonably might be done to deal with the issue, if you can’t resolve matters easily then it may be worth taking legal advice.