Property Law uk

Maintained by Gary Webber

Water

Rylands v Fletcher

Transco plc v Stockport Metropolitan BC
[2003] UKHL 61

Facts

Without negligence on the part of the defendant water escaped from a cracked pipe serving a tower block on the defendant's land and seeped into the ground over a period of time. The amount of water that escaped was considerable and the nature of the defendants land was such that a large quantity of water flowed some distance from the block and percolated into an embankment that supported Transcos gas main. This caused the embankment to collapse leaving the gas main exposed and unsupported, giving rise to a serious risk that the gas main might crack. Transco took remedial steps and sought to recover the cost from the council. The CA, overturning the judge held that there was no negligence on the part of the defendant, and so no liability in negligence or nuisance. In the HL the question was whether the claimants could rely upon the rule in Rylands v Fletcher.

Held

Not liable. The defendant's use of the land was an ordinary one and did not raise any special hazard. Further, there was no escape of water onto the neighbouring land. The HL took the opportunity to re-affirm the rule and to restate the principles that apply.
    It is of course true that water in quantity is almost always capable of causing damage if it escapes. But the piping of a water supply from the mains to the storage tanks in the block was a routine function which would not have struck anyone as raising any special hazard. In truth, the council did not accumulate any water, it merely arranged a supply adequate to meet the residents needs. The situation cannot stand comparison with the making by Mr Rylands of a substantial reservoir. Nor can the use by the council of its land be seen as in any way extraordinary or unusual. It was entirely normal and routine. (Lord Bingham, para 13).



"Common enemy" rule

Arscott v Coal Authority
[2004] EWCA Civ 892

Facts

In 1972 the owner of a large recreation area, which was susceptible to flooding deposited coal waste on the site in order to raise the level. In October 1998 a river overflowed and caused damage to a neighbouring property, the owner of which claimed damages. It was accepted that the raised level of the site was a material cause to the damage.

Decision

However, the claim was dismissed by the judge primarily because he held, relying on a long line of authority going back to the 18th century, that a doctrine known as the common enemy rule applied to the case. The judge articulated this rule as follows: (paragraph 27):
    "an owner or occupier of land is entitled to use or develop his land so as to prevent flood waters coming on to his land. If in times of flood waters which would have entered his land in consequence damage another's land that does not provide a cause of action in nuisance."
The decision was upheld on appeal. The principle was not in breach of Art 8 and Art 1 of the First Protocol of the European Convention on Human Rights.


Water company - sewers

Marcic v Thames Water Utilities Ltd
[2003] UKHL 66

Facts

Cs property was constantly flooded by water from the sewers serving it. This led to damage to the fabric of the house. A claim was brought against the statutory undertaker, Thames Water. The CA held that there had been a common law nuisance, applying in particular Leakey v National Trust [1980] QB 485, i.e. the principle that ownership of land carries with it a duty to do whatever is reasonable in all the circumstances to prevent hazards on the land, however they might arise, from causing damage to a neighbour's property. It also held that there was a breach of the Human Rights Act in respect of incidents occurring after 2 October 2000.

Decision

The House of Lords reversed this decision. The water company is not an ordinary occupier of land but is governed by the Water Industry Act 1991, which sets out in detail its obligations. The law relating to nuisance cannot be used to impose obligations that are inconsistent with the Act. Further, the real complaint in effect was that not enough sewers had been built and such a complaint by an individual cannot be sustained under the 1991 Act. The circumstances of the case did give rise a serious interference with Cs home and property so as to constitute a breach of article 8, and Article 1 of the First Protocol. However, the statutory scheme under the 1991 Act (which imposes general duties on the company enforced by an independent regulator) strikes a reasonable balance between the individual and the community as a whole. It is therefore Convention compliant and C was not entitled to damages under the Human Rights Act.

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