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Recently, no one can have failed to be aware of the dreadful consequences of floods on personal property. Thousands across the UK have had to leave their homes and watch from a distance as the places they love are left at the mercy of the elements.
Not only is there trauma in the actual event, but also in the knowledge of all the time and money that will need to be expended on the inevitable cleanup. Although in many cases insurance will be able to cover the damage, an understanding of the legal position can still ensure property owners are adequately protected.
At common law, a landowner owes a duty to his neighbour to take reasonable steps to prevent damage being caused by natural events, such as heavy rains or landslides, which he knows may occur or should have reasonable foresight of potentially happening.
Many at present are suffering from floods, but also from the effects of landslides caused by saturated earth and accumulation of debris. Such effects of nature are referred to in law as ‘natural nuisances’.
In the past, there was no liability for a landowner for acts occurring on their land which adversely affect their neighbours. However, that is no longer the position at law.
A growing body of cases has changed this position so that a party can claim if they have suffered loss arising from a foreseeable natural nuisance which a neighbour should have known about (or knew would happen and still failed to do nothing about).
In Sedleigh-Denfield v O’Callaghan , a landowner was held liable for the escape of water which they could have prevented with a simple and obvious step.
This was followed by Leakey v National Trust , now the leading authority, in which the court held that a landowner who had reason to be aware of a likely natural risk (in this case landslides and debris fall), and who took no reasonable steps to prevent it, owed a duty of care to neighbouring landowners not to cause them damage and would be liable for any damage caused by their omission or neglect.
These cases show that the need for a landowner to take simple precautions is critical to avoid liability for damage caused to neighbours by natural nuisances.
Finally, last year in Vernon Knight Associates v Cornwall Council , the court found the Council liable for failing to clear storm drains properly. The consequence of the failure was accumulated floodwater running off and causing damage to a nearby holiday village.
Jackson LJ, giving the leading judgment, stated that a landowner owes a measured duty to prevent natural occurrences on his land from causing damage to those of their neighbours.
In addition an action could be brought under trespass. Trespass is actionable without proof of damage and can be made when a substance has negligently entered another’s land.
Therefore, if you have suffered harm from a natural event, such as a flood or landslip, and the cause of the damage came from your neighbour’s land (for instance they failed to clear their drains or if they had protected their own home by channelling water elsewhere) then, if your neighbour knew or ought to have known about the likely effect of the natural event, you may have a claim against them.
If a property has a watercourse running through it or along its boundary then that property’s owner is, at law, possessed of “Riparian rights”. These confer on the owner rights such as a use of the stretch of water, but also serious obligations, foremost of which is not to impede the natural flow of water and to keep the stretch clear from obstruction.
If a riparian owner constructs their own defences on their bank without permission, such that it would impede the natural flow of water and neighbours suffer flood damage as a result, those neighbours may claim for the damage.
Similarly, if a stretch of river has been blocked by debris, natural and unnatural, then that owner must clear it or else be liable for any damage the backed up water may cause if it escapes.
Failure to observe your obligations as a riparian owner can lead to action being taken against you by your neighbours or from the Environment Agency and your local authority, which possess the rights of natural risk managers across the UK.
We cannot predict the weather, but we can predict what may happen if we fail to minimise its effects on ourselves and others.
To prevent a claim for a natural nuisance against you, you should:
If you have suffered damage as a result of the above, then you may have a claim for damages and/or an injunction to prevent the cause of the damage from reoccurring.