Lambert and Others v Barratt Homes Ltd and another
| Jurisdiction | England & Wales |
| Judgment Date | 16 June 2010 |
| Neutral Citation | [2010] EWCA Civ 681 |
| Docket Number | Case No: A1/2009/2385 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 June 2010 |
[2010] EWCA Civ 681
HH Judge Grenfell
Before: President of the Queen's Bench Division
Lord Justice Longmore
and
Lord Justice Moore-Bick
Case No: A1/2009/2385
8T00539
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS TCC
Sebastian Clegg (instructed by Forbes Solicitors) for the Appellant
Jeffrey Terry (instructed by Berrymans Lace Mawer) for the Respondent Claimant
Wilson Horne (instructed by Freece Cartwright) for the Respondent
Hearing dates: 6 th May 2010
This is the judgment of the Court.
Introduction
The claimants are or were respectively householders of numbers 25, 27 and 29 Springfield Road in Middleton, Rochdale. These properties lie to the East of land which was formerly a school playing field owned by the second defendants, Rochdale Metropolitan Borough Council. The claimants’ gardens back onto the edge of the former playing fields on a line which runs approximately from North to South and parallel with Springfield Road. The field slopes from North West to South East, and surface water naturally drains in that direction generally towards the line of the gardens of Springfield Road and towards the South East corner of the former playing field. There was a man-made drainage ditch which ran along most of the western side of the field, starting to the north of the claimants’ properties and draining into a culvert at some point to the South of their properties. The culvert then carried the surface water beneath numbers 1 and 3 Springfield Road, beneath and across Springfield Road itself to a manhole in the very south eastern corner of the playing fields of St Leonard's Primary School on the eastern side of Springfield Road. These drainage arrangements were historically satisfactory.
In 1993, Rochdale sold the lower part of their playing field to the first defendant, Barratt Homes Limited, for housing development. Rochdale retained the upper part of the field. The Northern boundary of the land acquired by Barratt abutted the eastern boundary approximately in line with the garden of 33 Springfield Road, two houses to the north of the claimants’ properties. Barratt carried out their housing development completing it towards the end of 1996. In doing so, they built up the boundary land somewhat and constructed a wall or fence up against the eastern boundary of the former playing field. They thereby negligently filled in and blocked the lower part of the drainage ditch and culvert from approximately the level of number 33 Springfield Road southwards. If there was an intention to leave a sufficient gap for drainage between this fence and the boundary, this was not achieved. In the result, since late 1996, surface water from Rochdale's retained Northern part of the playing field, flowing naturally and to an extent directed eastwards by the northern boundary fence of Barratt's development, accumulates in the Southeast corner of the retained land and on occasions floods into the claimants’ properties causing damage. So far as might be material, it may be that the water flows from Rochdale's retained land onto part of the land acquired by Barratt before passing onto the claimants’ properties. In these proceedings, the claimants claim damages and other relief against both Barratt, who are plainly responsible for the flooding, and also against Rochdale, who equally plainly are not responsible, at least according to an ordinary understanding.
Barratt contested the claims. But H.H. Judge Grenfell, sitting in the Technology and Construction Court in Leeds, had no difficulty in finding them liable to the claimants in damages in a judgment delivered on 17 th February 2009. He also found Rochdale liable for breach of a measured duty to take reasonable steps to abate the nuisance comprised in the water flooding from their land to cause damage on the claimants’land. Toulson LJ gave Rochdale permission to appeal, also granting them the necessary extension of time in which to do so.
Extension of time
The claimant respondents, through Mr Terry, seek to have Toulson LJ's extension of time set aside, the claimants not having been heard on this topic before Toulson LJ made his order. Mr Terry says that Rochdale were well out of time in issuing their Appellants’ Notice and have no proper excuse for the delay. He says that a proper application of rule 3.9 of the Civil Procedure Rules should not result in an extension. The judgment was given on 17 th February 2009. The Appellants’ Notice was issued on 2 nd November 2009. Rochdale were not entirely inactive in the intervening months. The order following the judge's judgment was not finalised until 3 rd November 2009, because Rochdale took the view both that the appropriate order was not clear, and that paragraphs 76 and 77 of the judgment did not give sufficient reasons for the conclusion which the judge reached. There was accordingly a hearing on 12 th October 2009, at which the judge was invited to clarify his reasons, and to an extent during discussion he did so. The eventual order emerged from that hearing. We accept that there was a period of inactivity in the first two or three months after the 17 th February 2009 judgment. There will also have been some general prejudice to the claimants, although it is questionable whether the relief works (see below) could have been carried out in the school summer holidays of 2009. We accept, however, as will appear, that there was some force in Rochdale's contention that the judgment, if it were to stand, needed clarification and elaboration. In the result we do not set aside the extension of time.
Relief works
Barratt have disabled themselves by selling their development from carrying out works to enable the water to flow away by its former course. The practical solution of the intermittent flooding problem has been developed over the years, so that it is now, so far as we are aware, practical and capable of being carried out. It requires the construction of a catch pit in the southeast corner of Rochdale's retained land; the construction of a drain from the catch pit beneath the rear gardens of numbers 31 to 25 Springfield Road, the drain then running beneath number 25 and across Springfield Road at that level into St Leonard's school playing fields to a manhole. The drain would then turn South close to the boundary of that playing field to reach the manhole in its southwest corner into which the drain which Barratt blocked used to flow by its former route. This scheme requires the consents of Rochdale for the catch pit, the house owners of numbers 33 to 25 Springfield Road, and of Rochdale again as highway authority and proprietor of St Leonard's School. It may also require the consent of United Utilities plc into whose sewer the water would by its new path flow. We understand that these consents are all, subject perhaps to United Utilities, available. As to United Utilities, it is in essence the same water draining into the same sewer, but by a different route. We were told that the revised estimate of the cost of these works is £85,000, which is the total of the sums which Barratt (£55,000) and Rochdale (£30,000) have paid on account pursuant to the judge's order of 3 rd November 2009. The work on the land of St Leonard's School needs to be carried out during the school summer holidays.
Now that Barratt have been held liable and are not appealing the judgment against them, the work must surely be done during the summer holidays of 2010, whatever the outcome of this appeal. It is surely senseless to prolong this expensive litigation when a viable solution and the means of paying for it are available.
The proceedings
The bones of the relief scheme which has now been developed had been worked out by 14 th August 2001, when the claimants’ solicitors wrote to Barratt and Rochdale, shortly describing an engineering proposal essentially such as we have described. It was said that finance was required from Barratt and/or Rochdale and the approval and assistance of Rochdale was sought. The letter to Rochdale required them (together with Barratt) to be financially responsible for resolving the drainage problem and the subsequent damages suffered to “our principals insureds’ properties”. It is of some relevance that the claimants were represented by insurers and presumably still are. We are not aware that this letter received a contemporary substantive response from Rochdale, but the evidence and documents before the judge (and this court) were and are palpably incomplete.
The proceedings were started on 29 th October 2002. The Particulars of Claim alleged that Barratt were negligent, which Barratt denied. They maintained their denial until the judge found against them. As we have said, they do not appeal that decision. The case against Rochdale was that, although they were admittedly not responsible for blocking the culvert, they came under a measured duty of care to take reasonable and appropriate steps to prevent water originating on the retained undeveloped land from accumulating in the blocked culvert and then spilling out onto the claimants’ properties in a manner and to an extent that it would not have done if the culvert had not been blocked. The pleading alleged that Rochdale knew of the problem by December 1998 or January 1999 at the latest. It referred to the letter of 14 th August 2001. It was then said that Rochdale had...
To continue reading
Request your trial
-
Vernon Knight Associates v Cornwall Council
...neighbours, held that the defendant's duty did not extend to an obligation to maintain barriers against occasional flooding. 46 In Lambert v Barratt Homes Ltd [2010] EWCA Civ 681 surface water flowing from land belonging to Rochdale Metropolitan Borough Council on occasions flooded the cla......
-
Dr Merren Jones v Chapel-en-le-Frith Parish Council
...be a highly material factor) to establish that the person responsible for the nuisance cannot be found. (see, for example Lambert v Barratt Homes Ltd and another [2010] EWCA Civ 32 The first stage of the statutory process requires the magistrates' court to determine whether the nuisance ex......
-
Young v The Attorney-General
...at 575. 53 Holbeck Hall Hotel Ltd v Scarborough Borough Council above n 49, at [49]. 54 Judgment appealed, above n 1, at [79]. 55 Lambert v Barratt Homes Ltd [2010] EWCA Civ 681, [2011] HLR 1 at 56 Vernon Knights Associates v Cornwall Council [2013] EWCA Civ 950, [2013] 3 EGLR 69 at [49(......
-
Young v ATTORNEY-GENERAL
...27 28 29 30 31 Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000] QB 836 (CA) at 861. At 863. Lambert v Barratt Homes Ltd [2010] EWCA CIV 681 at At [21]. At [22]. The Court referred the matter back to the first instance Judge to determine whether the Council was simply under a duty......