(1) Stuart Baddeley and Margaret Allman v I E Barker

©Crown Copyright

Mr Stuart Baddeley and Mrs Margaret Allman appeal against the order of His Honour Judge Krikler, sitting at the Stoke-on-Trent Combined Court Centre on 4th March 2002, when he dismissed their claim again their neighbour, Mrs Barker, for damages for nuisance or in negligence.

The background

The facts which give rise to this dispute can be quite shortly stated. The claimants jointly purchased 3 Linley Cottages, Linley Road, Talke, in January 1992. Its position was peaceful and it had potential for modernisation. What seemed to be their idyll turned out to be their nightmare. One evening in November 1993 Mr Baddeley returned home to find Mrs Allman "frantic with worry" because their house was being flooded with dirty water and sewage. The smell was pungent and horrid. The damage was significant. Time was needed for the property to dry. As Mr Baddeley said in his witness statement, "Christmas came and went and we still had no carpets and furniture." But things were back to normal by the end of January. Then on Boxing Day 1994, a year later, disaster struck again: there was another flood. Quoting again from his witness statement, Mr Baddeley said, "Our new Technics Hi Fi, which we had bought each other for Christmas, was `floating' around the room." Once again the furniture was damaged and the carpets were ruined. A month later there was a third flooding; and, two days after that, there was a fourth flooding.

What poor Mr Baddeley and Mrs Allman had not appreciated when they bought this idyllic cottage was that it lay at the bottom of a natural valley. Rainwater drained into a hollow on Mrs Barker's land adjacent to their land and formed a pond which at times held over 250,000 square metres of water. There were some land drains across her fields which connected, or used to connect, to a manhole in Linley Road, the A5011, for which either the Staffordshire or the Cheshire County Council was responsible, the county boundary being there or thereabouts. Surface water from the roadway also drained into that manhole and then passed through a culvert under the road and thence to a stream much further away to the north-west.

It seems from the papers that Mrs Barker's land agents were writing to the council in May 1993 about "a drainage problem" at Linley Cottages, when it was suggested that when the road had been excavated some years previously the drain under the road had been interfered with. The claimants were able to see with their own eyes how the water from the pond area spilled over onto their land and into their house. In January 1995 Mr Baddeley made Mrs Barker aware of the problem, if she did not know of it previously. Although it is not entirely clear to me from the papers, some work, or at least some investigation of the difficulties, was carried out in 1995.

But that was not effective. There were further floods at Christmas 1995, on 4th January 1995 and on New Year's Day 1998. The claimants feel that the Gods were against them and seemed to spoil every Christmas or every New Year, and one has sympathy for that view.

By now, as one can readily imagine, the claimants were at the end of their tether. They, through their solicitors, called a site meeting on 12th January 1998, which was attended by the defendant's land agent and a Mr Willis, a drainage contractor. Mr Webb of the Staffordshire County Council Highways Department may also have been present at that meeting.

In the particulars of claim it was pleaded in paragraph 12 that:

"The following matters were agreed at the site meeting by the three representatives present:

(a)There were three underground pipes all of which had been damaged at some time in the past;

(b)Two of the pipes ran from the Defendant's land across the Claimants' driveway from the area of the pond and towards a manhole located outside the Claimants' premises on the pavement to the highway;

(c)The third pipe ran along the boundary between the parties premises on the Claimants' land and also towards the manhole;

(d)The pipes running from the Defendant's land were land drainage pipes and, up to the point where they were damaged and severed, appeared to be in working order; and,

(e)The flooding was occurring because the land drainage pipes were no longer working and were no longer connected either to a former culvert running under the road or any other drainage system."

Mr Willis would have said in his witness statement that:

"3.Following flooding in 1995 and the following year I had occasion to be employed by [Mrs Barker] to pump water from this field and to rod the drains. At this time it appeared that the drainage from the field was blocked close to the boundary with the road.

4.Following the further incident of flooding in January 1998 I was instructed by Mr Wallis of Wright-Manley [the land agents] to again pump out this field. Subsequently I was asked to investigate the problem and following excavations I carried out I established that there were three drains from this field. Two 4" land tile drains came from Mrs Barker's property under the boundary fence and across the driveway to the cottage owned by Mr Baddeley at number 3 Linley Cottages. The third drain came from Mr Baddeley's property. All three drains had been severed and it appeared that this was done when a manhole had been installed by others in the pavement and that the three drains had not been re-connected to the manhole. All the drains were in very good order up to 1 ¹/₂ metres from the manhole. The drain pipes were then all broken where the excavation had taken place to install the manhole. If the existing drains had been re-connected then no flooding would have taken place as the water would have continued to flow down its original course. …

6.I then installed a new drainage chamber which I connected to the drain in the road following permission from the Council."

So the position at the end of the carrying out of that work in 1998 was that a new chamber was built on the defendant's land. The land drains fed into that. That, in turn, was connected to the manhole on the pavement, and the manhole then fed the waters away through the culvert under the road.

This work, however, did not prove to be wholly effective. On 26th October 1998 the claimants awoke to find dirty, smelly water covering the whole of the lower part of their property to a depth of about 10 inches. Almost to the day there was another flood a year later. By now the house was in need of substantial work to restore it and renovate it. The claimants had to spend weeks in bed and breakfast accommodation. Mrs Allman had a nervous breakdown. But, sadly, it was not the end of their travails. On 6th November 2000 their house was again surrounded by water. Mr Willis was called again. He arrived with his JCB digger. Mr Baddeley would have said in his witness statement:

"79.At 3.30pm Mr Willis, the drainage contractor, arrived because Mr Wallace had told him of our problem. …

80.Mr Willis rang for some assistance and 20 minutes later a JCB digger arrived. They dug out a large hole in my driveway to expose the drainage tank completely. They `broke into' the concrete rings with a sledgehammer and inserted a large diameter pipe at an angle. The retaining piece of land was dug out and the water flooded into the hole that had been dug. When the hole equibrilised [sic] with the water level, the water went away down the newly inserted pipe. By 10pm that evening no water was left in the field and since then although we have had plenty of rain the field has not even started to fill up again because surface water is being taken away by the `new' temporary pipe."

We understand that this new pipe is possibly about six inches in diameter and it runs from the manhole on the pavement for a length of about six metres into the defendant's land and into the area which we have called the pond. Mr Willis has fitted a grill across the face of this pipe. The submission is that all is working well provided, of course, that efforts are made to ensure that the grill is kept free of debris, so as to ensure a full and free flow of water down that pipe.

That all took place in November 2000. By then, as one can readily understand, the claimants considered that they had endured "seven years of hell". They were unable to sell the house, blighted as it was with that history of flooding, and so on 28th November 2000 they commenced these proceedings.

The claims brought

In setting out their cause of action in nuisance the claimants pleaded that at no relevant time had there been any adequate system of pipes, drains or run-offs to carry away excess water from the pond to prevent damage to their property. They alleged in paragraph 8 of the particulars of claim:

"In the premises the absence of any adequate method of carrying away excess water collecting in the pond constituted a nuisance to the Claimants which nuisance was created or continued by the Defendant."

In dealing with the cause of the 1998, 1999 and 2000 floods, the claimants alleged in paragraphs 34 and 35 as...