Susan Louise Sabet Or Hughes And Another Against Fife Council And Norman Milne
| Jurisdiction | Scotland |
| Judge | Lord Ericht |
| Neutral Citation | [2019] CSOH 26 |
| Date | 19 March 2019 |
| Docket Number | A271/17 |
| Court | Court of Session |
| Published date | 19 March 2019 |
OUTER HOUSE, COURT OF SESSION
[2019] CSOH 26
A271/17
OPINION OF LORD ERICHT
In the cause
SUSAN LOUISE SABET OR HUGHES AND ANOTHER
Pursuers
against
FIFE COUNCIL
First Defender
and
NORMAN MILNE
Second Defender
Pursuers: Lindsay QC; Ledingham Chalmers LLP
First Defender: Hanretty QC; BLM
Second Defender: Duthie; DAC Beachcroft Scotland LLP
19 March 2019
Introduction
[1] The pursuers’ house was severely damaged by flooding from the Ceres burn in Dura
Den in Fife. They raised an action for damages jointly and severally against firstly the local
authority in respect of breach of duties under sections 56 and 59 of the Flood Risk
Management (Scotland) Act 2009 and secondly a neighbouring landowner in nuisance.
2
They averred that the flood would not have occurred had a weir across the burn not been
blocked with accumulated debris.
[2] A neighbouring house was also severely damaged by the same flood. The
neighbours also raised an action against the local authority and landowner on the same
grounds (Edwards v Fife Council 2019 CSOH 27). Both actions called before me at the same
time for debate on the preliminary pleas of both the local authority and the landowner. The
issues in the current case and the neighbour’s case were identical.
The case against the local authority under sections 56 and 59 of the Flood Risk
Management (Scotland) Act 2009
Statutory provisions
[3] Section 56 of the Flood Risk Management (Scotland) Act 2009 provides:
“56 General power to manage flood risk
(1) A local authority may do anything which it considers—
(a) will contribute to the implementation of current measures described in
any relevant local flood risk management plan,
(b) is necessary to reduce the risk of a flood in its area which is likely to—
(i) occur imminently, and
(ii) have serious adverse consequences for human health, the
environment, cultural heritage or economic activity, or
(c) will otherwise manage flood risk in its area without affecting the
implementation of the measures mentioned in paragraph (a).
(2) Without prejudice to the generality of subsection (1), a local authority may in
particular—
(a) carry out any operations to which a flood protection scheme relates (see
section 60),
(b) carry out any other flood protection work,
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