Before the Flood

Water constitutes approximately 70% of the earth’s surface, approximately 75% of the human body and, for many last year, almost 100% of their homes.

Whether as a result of global warming or housing growth, flooding has become a real issue for an increasing number of people, for many of whom there would not appear to be any legal recourse. Unless one is able to establish fault (usually in the form of negligence or nuisance), an affected homeowner will have no remedy against such acts of nature.

The Environment Agency keeps a record of flood risk areas which can easily be accessed via its website www.environment-agency. gov.uk. Despite this, however, the Agency reports that in no more than 5% of property transactions is it consulted to see if the property being purchased lies within such an area. Doubtless, one reason for this is that the Agency sets a very low threshold in ascertaining whether or not an area is at risk. The flood plains recorded on the website are the 1 in 100-year fluvial and 1 in 200-year tidal flood plains and, furthermore, do not take into account any flood defence measures in situ. Search against some of the most expensive real estate in Britain, therefore, and you will see that large parts of central London lie within a flood risk area. Councils (which are under considerable pressure to meet housing quotas) and developers (who are keen for obvious reasons) have excused their decisions to build in such areas on this very fact and will instead simply investigate any recent flooding history at each particular site.

All this, however, is of little comfort to the homeowner whose only means of access to his home is by canoe. A buyer will have no comeback against his seller unless the seller has been guilty of misrepresentation and has actively denied any knowledge of flooding at the property when such has in fact occurred. Even if this situation exists, the buyer then faces an uphill battle proving that he has relied on the seller’s misrepresentation and extracting the necessary compensation from the seller.

A well-advised buyer should always ask of his seller whether there has been any flooding at the property but should also make the necessary enquiries of the Environment Agency, even if only typing the postcode into the Agency’s website. If such a search reveals that the property lies within a flood risk area, then further enquiries can be made and reassurances obtained (the Thames Barrier, if you are buying in SW1). If there is a potential risk, then the buyer should make sure he can obtain sufficient insurance against flooding before proceeding any further (which, in turn, may result in the insurers making additional enquiries of their own).

One of the principal reasons there has been so much more flooding in recent times is that the sewerage and drainage infrastructure, largely installed in the 19th Century, is now simply unable to cope with the increased number of houses. Two recent cases have highlighted this problem, in which a statutory water and sewerage undertaker and local highway authority have been taken to court by private individuals who have suffered flooding as a result of the local drains no longer being able to deal with the increased flow.

In Marcic -v- Thames Water Utilities Limited, the unfortunate Mr Marcic (of Stanmore, Middlesex) suffered 17 instances of flooding in nine years as backflow from Thames Water’s sewers emptied into his front and back gardens. Mr Marcic was offered £40 by Thames Water for his troubles but, despite such a tempting offer, Mr Marcic felt obliged to take the matter further and to sue for an injunction and damages in nuisance.

At first instance, Mr Marcic failed in his action in nuisance, because the judge was bound by authority to distinguish between misfeasance (a wrong actively committed) and non-feasance (a failure to take steps to prevent a wrong). Previous lines of authority held that a statutory authority could only be liable for a misfeasance and, as the problem had arisen through inaction rather than action, Thames Water could not be held liable.

The case has just been heard by the Court of Appeal, however, and the Appeal judges were not prepared to suffer such a distinction in this case. The previous lines of authority had been decided in the context of a plaintiff trying to force the authority to carry out its statutory duty. For Mr Marcic, however, the problem was not Thames Water failing to drain his property but, rather, Thames Water fulfilling its duty to drain the properties of others, the direct consequence of which wasthe flooding of his own property. In such cases, the Court of Appeal held that a statutory authority could not rely on the old distinction between misfeasance and non-feasance. Adopting the principles set out in Leakey (of which, more below), the Court of Appeal held Thames Water liable in nuisance.

What saved Mr Marcic at first instance, however, was the advent, on 2 October 2000, of the Human Rights Act. Mr Marcic was able successfully to rely (and this was confirmed by the Court of Appeal) on the fact that Thames Water had infringed his right (under Article 8) to respect for his home, family and private life. As has previously been noted in this Newsletter, the Courts are reluctant to allow the Human Rights Act to drive a coach and horses through English law and it is clear from the judgment that the judge was at great pains to allow Thames Water a fair margin in balancing the competing claims of Mr Marcic and all Thames Water’s other customers who had a call on Thames Water’s resources (the cost of the remedial works being not insubstantial). The judge at first instance, however, was not convinced by Thames Water’s arguments that their system of prioritising cases was fair and that, as there was little or no prospect of Thames Water carrying out the necessary remedial works (of which it had been aware for some time and which works were reasonably practicable), the statutory undertaker was guilty of infringing Mr Marcic’s human rights.

The second case, Bybrook Barn Centre Limited and Others -v-Kent County Council, did not involve a statutory water and sewerage undertaker and, as such, the Human Rights Act did not fall to be considered. The claimant’s claim was based on the principle espoused in the case of Leakey and Others -v-National Trust (which in fact related not to a leak but to soil tumbling down a hillside), whereby an occupier is deemed to owe a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land whether such a hazard is natural or man-made and whether the hazard arises through misfeasance or non-feasance.

Some 50 years or so ago, a culvert was constructed under Cemetery Lane, Ashford to put Bockhanger Dyke under the highway. At the time of construction, the culvert was of adequate capacity for its purpose. As a result of building since then, however, (including the construction of the M20) the amount of water in Bockhanger Dyke had grown substantially with the result that in times of heavy rain the culvert overflowed and caused localised flooding. The claimants brought a claim for damages in nuisance against the local highways authority based on the Leakey principle. Although the Council argued that it could not be held responsible for changed circumstances rendering the culvert inadequate for its purpose, the Court of Appeal disagreed. The Council’s predecessors must have chosen to construct a culvert under the highway and the Council had the means (at some cost, but without any great difficulty) to carry out the remedial work. In addition, the Council would have been legally obliged, had the appropriate notice under the Land Drainage Act been served, to carry out the work in any event.

For the hapless homeowner in his canoe, therefore, all is not lost, although any claim (whether against his seller, his water and sewerage undertaker or otherwise) is going to prove difficult to realise. It is clear from both the above decisions that each case very much relies on its own particular facts and it is difficult to draw too many general conclusions. As ever, prevention is better than cure and a buyer would be well-advised to look carefully at a property’s location before taking the plunge.