‘Rain that does not harm the city cannot harm the citizen’

Private nuisance refers to an indirect or consequential interference with a neighbouring proprietor’s use and enjoyment of their land. A claim in nuisance, in the context of pluvial flooding, occurs when natural or man-made drainage systems do not have sufficient capacity to deal with the volume of rainfall, or the runoff from higher ground, and failing to abate it causes damages to adjacent properties.

One could be forgiven for overlooking the effects of natural occurrences such as rainfall, water accumulation in the soil, and even the type of soil in a particular region. However, becoming the subject of a nuisance claim for interference with another person’s enjoyment of their land may attract liabilities such as monetary compensation, or an injunction.

As per the case of Vernon Knight Associates v Cornwall Council [2013] EWCA Civ 950, it was established that in a nuisance case of a pluvial nature, the courts engage in a balancing of interests. First of which, whether there is a measured duty imposed on the landowner to take reasonable steps to prevent natural occurrences on their land from escaping, interfering with, and damaging neighbouring properties. Where the conduct, or omission thereof, would foreseeably lead to an interference with the use and enjoyment of a neighbouring property, there is an expectation to prevent or reduce the hazard.

Secondly, the court must consider what is fair, just, and reasonably expected between two neighbouring landowners. Once a landowner becomes aware of an escape of water from his land that significantly interferes with the enjoyment of another, failing to take the necessary steps attracts liability. This is based on all the circumstances of the particular case, including the extent of the foreseeable risk, the availability of preventive measures, costs, and resources of both parties. If established, said measured duty of care applies to removing or reducing the hazards to a neighbouring landowner and occupier alike.

Natural occurrences, such as rainfall and groundwater are said to be “natural occurrences” in the context of the above case and could be distinguished from other “hazards”, such as blocked culverts, smouldering trees, unstable undercliffs, and destructive tree roots that trigger the escape and subsequent interference.

A claimant will always be best placed if they can argue that the flooding is not strictly a natural phenomenon but rather an escape from the neighbouring land that is causing interference due to a negligent act or omission. For this, there is no substitute for good quality expert evidence and legal advice at an early stage.

Summary: Private nuisance in the context of pluvial (heavy rainfall) flooding occurs when drainage systems fail to handle rainfall or runoff, causing damage to neighbouring properties. If a landowner’s actions or inactions foreseeably lead to such interference, they may be liable for compensation or an injunction. The case of Vernon Knight Associates v Cornwall Council (2013) clarified that landowners have a duty to take reasonable steps to prevent water from their land from damaging neighbours. Courts will balance fairness, considering factors such as risk, prevention measures, and resources. Natural events like rainfall are distinguished from man-made hazards, but if flooding is due to negligence, expert evidence and early legal advice are crucial for a successful claim.

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