Northumbrian Water Ltd v Sir Robert McAlpine Ltd [2014] EWCA Civ 685

The Court of Appeal has confirmed that there is no general rule in nuisance claims that where material escapes from the defendant’s land and causes physical damage to the claimant’s land, the defendant is liable regardless of the foreseeability of the escape, or the nature of the harm caused.

In the rather unlucky set of circumstances in this case, the defendant company was carrying out a redevelopment project on a city centre plot.  All usual site investigations had been carried out, and the plot had been redeveloped in the 1970s, so that there was nothing to lead the developer to anticipate unidentified obstructions below ground.  However, a disused private drain, unmarked on modern plans, ran beneath the site and connected to the public sewer.  During drilling works the private drain was penetrated, with the result that when the shaft was filled with concrete to create a pile, a quantity of concrete set and created a blockage in the sewer.  Northumbrian Water incurred substantial expense in removing the obstruction.

After a review of the authorities, the court confirmed:

  • if a defendant’s use of his land is reasonable, he will not be liable for interference with his neighbour’s enjoyment of land;
  • unless a nuisance case can be brought within the narrow scope of Rylands v Fletcher (strict liability for damage caused by the escape of something kept on the defendant’s land), the defendant will not be liable for damage caused by an isolated escape, so long as it was neither intended nor reasonably foreseeable; and
  • damage of the type of suffered must have been foreseeable for liability to arise.

On the present facts, the redevelopment of urban land was a normal and reasonable use, and this was an isolated instance of concrete escaping from the site.  In the absence of the private drain being apparent on Northumbrian’s plans, there was also nothing to suggest that the defendant company’s actions would cause harm to the neighbouring property.  The developer was not liable for the damage caused.

In the wake of Coventry v Lawrence [2014] UKSC 13, this decision provides some further clarification in relation to a different type of nuisance claim.