In Lambert and others v Barratt Homes Ltd and Rochdale Metropolitan Borough Council [2010] EWCA Civ 681 the English Court of Appeal reconfirmed that an occupier of land has a measured duty of care to avoid damage to neighbouring land arising from a hazard on its own land, even in situations where the hazard in question arises through no fault of its own.

Facts of the case

In the case, one of the defendants, Rochdale Metropolitan Borough Council, owned a school playing field, bordered on one side by residential properties. The playing field sloped towards the houses, but a drainage ditch which, historically, had been constructed at the lowest point of the field to cope with any excess water, carried surface water off to a manhole. The drainage system had been perfectly adequate for all the shared purposes. Rochdale sold part of the playing field (including the drainage ditch) to Barratt Homes Limited, who proceeded to develop the land for residential use. As part of the development work, Barratt filled in a section of the drainage ditch. Consequently, water built up on the part of the land still owned by Rochdale, and flooded the residential properties bordering the field. The owners of the flooded residential properties brought proceedings against both Barratt and Rochdale. The trial judge and Court of Appeal were satisfied that Barratt were responsible for the negligence that caused the flooding. Rochdale, however, were found by the trial judge to be liable for a breach of a "measured duty of care" towards the owners of the residential properties. Rochdale appealed.

The scope of the duty of care

The Court of Appeal agreed that Rochdale did have a measured duty of care and reviewed earlier authorities to help define the scope of Rochdale's duty in the particular circumstances. In the case of Allan William Goldman v Rupert William Edison Hargrave and others [1966] R W.L.R. 513 the court recognised the existence of "a general duty upon occupiers in relation to hazards occurring in their land, whether natural or man made". Where the duty exists, the occupier is expected to remove or reduce the hazard so as to prevent damage occurring on neighbouring land.

In Goldman, the court held that the basis of the occupier's liability in nuisance was that the damage could have been avoided by the exercise of reasonable care on the part of the occupier. In addition, as in Lambert, the hazard need not have been created on that occupier's land, as simply permitting a nuisance to continue on someone else's land may also result in liability. Such liability would arise if the occupier had knowledge of the nuisance and failed to take reasonable measures to prevent the damage to neighbouring land.

The case authorities generally support the view that such a general duty exists regardless of whether an action is founded in negligence or nuisance. When assessing the scope of the duty it is necessary to look at all the circumstances and consider what is reasonable. Has the hazard been forced upon the occupier? What resources are available to him to abate the nuisance? How able is the occupier to abate the nuisance i.e. physical ability and financial ability to pay any costs?

How can the duty be established?

The first factor necessary to establish a duty of care is knowledge of the hazard. The duty arises when the occupier knew, or ought to have known, of the hazard. It is irrelevant whether the hazard is created by another party, such as the developer in Lambert, or occurs naturally. The court in Goldman held that a distinction between man made and naturally occurring hazards would be unworkable, as it is often difficult to discern precisely how a hazard arose. The duty of care is imposed on occupiers of land: landlords will not usually find themselves liable unless they had instructed any works that caused the hazard on the land.

The second requirement is that the danger posed to the neighbour's land by the hazard must be foreseeable. In Lambert, the Court of Appeal referred to Holbeck Hall Hotel Ltd and another v Scarborough Borough Council [2000] Q.B. 836. Stuart-Smith LJ in that case, clarified that the fairness of imposing a duty was linked to how foreseeable the actual damage would be. The effect of this is to prescribe limits as to what an occupier should properly be held liable for: if some damage was foreseeable but not the full extent of the damage that actually occurred, the occupier would not necessarily be held liable for the whole cost of remedying the damage caused.

Lastly, the occupier must have the ability to abate the nuisance by reasonable measures. Failure to do so will result in a breach of the measured duty of care. What is reasonable will depend on the particular circumstances of the case and will be measured by reference to the actual occupier. The court will have regard to the relative financial standing of the parties in situations where expenditure of money is required to abate the hazard. Likewise, in circumstances requiring manual effort to abate the hazard the physical condition of the occupier will be relevant.

Conclusion

It is difficult to predict the outcome of litigation where the court's decision is tied so closely to a defendant's particular circumstances. The concept of a measured duty of care should cause occupiers to take note for two reasons. First, although some of the leading cases in this area have been brought against public bodies, in each case the public body was sued as the private owner of land, and not in their capacity as a public body. The duty applies to occupiers in the private sector as well as to those in the public sector. Secondly, the duty can apply to a wide range of situations. In Lambert the duty was applied to damage by flooding, while other cases have involved the loss of support to the claimant's land by landslips, rubble falling from a mound onto the claimant's land, and the spread of fire to the claimant's land.

Given the broad scope of the duty of care, occupiers should take steps to minimise their potential liability. The courts' consideration of the circumstances of each case may result in protracted and costly litigation. So, what can an occupier do to avoid this?

Vigilance is advisable. Occupiers must carefully manage their properties to ensure no hazards develop on their land without their knowing, as they may be liable for failing to abate it if any damage to neighbouring property that ensues was foreseeable.

Once a hazard has been identified, some form of communication with neighbours is also appropriate. The Court of Appeal in Lambert emphasised to Rochdale and Barratt the need to enter into constructive dialogue to allow the remedial works to be carried out without further delay – no doubt as much of a warning to the parties as a suggestion. Barratt had been found liable in negligence for the cost of installing alternative drainage systems, and from comments made by the Court of Appeal, it seems likely that Rochdale would satisfy the duty of care by taking an active role in facilitating this solution, perhaps by allowing the alternative drains to pass through its land. The Court of Appeal referred determination of the extent of duty of care owed by Rochdale in these circumstances and whether they were in breach of it back to the court of first instance.

It is still unclear which situations may result in an occupier having to expend money or take other steps to fulfil its measured duty of care. Occupiers may still be caught unaware, particularly where a hazard has been caused by a third party who resists any allegation of liability.

To view the decision in Lambert and others v Barratt Homes Ltd and Rochdale Metropolitan Borough Council click here.