England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
LEEDS DISTRICT REGISTRY
TECHNOLOGY AND CONSTRUCTION COURT

		Leeds Combined Court The Courthouse 1 Oxford Row Leeds LS1 3BG
		17th February 2009

His Honour Judge Grenfell:

1. In 1993 Rochdale Metropolitan Borough Council ("Rochdale") wanted to sell a redundant school playing field in Middleton, Rochdale for housing development. Barratt Homes Limited ("Barratt") sought and obtained planning permission to develop the lower part of the field. The field, including the upper part which Rochdale retained, as a whole sloped down towards the south east corner. Houses in Springfield Road, built in the 1930s, backed onto the eastern boundary of the field. Surface water naturally drained towards and past the gardens of Springfield Road to the south east corner where it fed into the sewer system through a drain situated between Nos 1 and 3. However, following the construction of the Barratt development on the lower part of the field, flooding of Springfield Road gardens commenced and has continued to the present. This case is about determining the causes of, and responsibility in fact and in law for, that flooding.
2. Mr and Mrs Lambert of No 25 Springfield Road, Mr France formerly of No 27 and Mr and Mrs Griffiths of No 29 have brought claims against Barratt as First Defendant and Rochdale as second defendant in nuisance and negligence, claiming damages and injunctive relief. For various reasons other residents of Springfield Road have not claimed, principally because initially only the higher gardens were seriously flooded.
3. The order of His Honour Judge Raynor QC on 4^th February 2008 directed a split trial dealing with all issues of liability and causation.
4. The claimants' case is that, prior to the development by Barratt, the water path consisted of a drainage ditch running behind and to the west of their properties. The ditch ran from north to south and was open at the north end but culverted to the south of the claimants' properties. This drainage system was adequate to collect the water draining from the fields, which are now the developed and retained land, and to discharge it into a public drain on Mellalieu Street to the south of the fields.
5. The claimants allege that the ditch was negligently filled in and fenced over by Barratt during the development with consequent flooding problems occurring since late 1996 by which time the development was substantially complete. Significantly, the claimants observe that the first flooding occurred only when the development was nearing completion and the new fencing had been erected by Barratt over the site of the water path.
6. Barratt's case is that there was no drainage system other than the culverted drain to the south of the claimants' properties which was maintained and continues to function. It contends that only this is shown on the plans of which it had sight prior to its purchase of the developed land; that inspection of the site revealed no ditch. Barratt denies filling in any ditch or fencing over it. It contends that it exercised reasonable care in dealing with the drainage situation generally and denies negligence.
7. Rochdale's case accords with the claimants' as to the presence of the ditch prior to the sale of the developed land and contends both that this was clearly visible and that Rochdale expressly told Barratt about it. Rochdale supports the claimants' case that the ditch was filled in by Barratt and that Barratt is liable to the claimants accordingly.
8. Barratt's case is that it was not given any relevant information about the ditch by Rochdale and maintains that any discussions with Rochdale related merely to the culvert shown on the plan.
9. The claimants' case against Rochdale is that it is liable in addition to Barratt because it has allowed the water from the undeveloped land to continue to flow from the undeveloped land onto the land purchased by Barratt for development and thence onto the properties despite knowing of the problem. The claimants maintain that, even if the problem was not of Rochdale's making, Rochdale, nevertheless, became aware of it from 1998, at the latest, and knew or ought to have known that, if it took no steps to deal with the drainage problem, the properties would continue to be subjected to recurrent flooding from water discharging from the undeveloped land. That gave rise to a measured duty of care which Rochdale breached by its continued inaction.
10. Rochdale's case in this respect is that it is entitled to drain its land onto lower lying land; that it denies the existence of any duty to take any steps to alleviate the position for the claimants; that it denies any liability for continuing failure to do so.
11. The claimants contend that the only viable scheme identified by their expert, Ms Hogg, to alleviate the flooding necessitates the co-operation of Rochdale and the carrying out of some works on Rochdale's retained land. So a mandatory order is sought against Rochdale requiring it to carry out and to permit such works.
12. Barratt has a Part 20 claim against Rochdale that clause 20(a) of the sale agreement operates so that Rochdale indemnify Barratt against the claims of the claimants against it (Barratt).
13. There is a measure of agreement as to the factual background and a substantial amount of agreement between the experts called on behalf of the claimants and on behalf of Barratt. A clear understanding of the facts is necessary, before considering the important issues that still separate the opinions of the experts and then going on to determine the legal issues which result.
14. In general terms, the principal issues as between the claimants and Barratt cover the way in which surface water drained past the affected Springfield Road properties before the development and what form the path took along which the water flowed; how that water path was maintained; Barratt's state of knowledge, actual or presumed, as to the presence of the water path; what steps Rochdale took to draw the need for the retention of adequate drainage to the attention of Barratt; what has obstructed that water path since the construction of the development; what failures on whose behalf materially contributed to such obstruction; what legal label can be attached to such failures as are established. In respect of these issues there is virtually common ground between the claimants and Rochdale.
15. The principal issue as between the claimants and Rochdale concern when Rochdale became aware of the flooding problem; whether thereafter or at some later date or at all Rochdale came under a measured duty to abate the nuisance to the Springfield Road properties that resulted from the flooding. There is now no issue as to what means of diverting the water run off is viable.
16. As between Barratt and Rochdale there is an issue whether by virtue of an indemnity clause in the sale agreement (clause 20(a)) Rochdale is liable to indemnify Barratt against the claimants' claim.
17. The principle expert issues concern the question whether the fence erected by Barratt at the eastern extremity of the development has obstructed the agreed pre-development water path; whether the gap left between the Barratt fence and the boundaries of the Springfield Road properties constitutes a sufficient water path: Mr Lambert, Barratt's expert, is of the opinion that, but for the subsequent obstructing of the gap by the depositing of various debris and a collapsed wall, the gap was capable of carrying away any quantity of water that could be expected to drain from the upper field. Ms Hogg, the claimants' expert, is of the opinion that the Barratt fence and the resulting narrowing of the water path are responsible for the flooding of the Springfield Road properties. There is now substantial agreement on the means of diverting the run off water away from the rear of the Springfield Road properties.
18. It is clear that originally Rochdale's field had been artificially levelled to create playing fields. Some of the witnesses recall playing on them whilst at school. It was in this way that to the immediate west of the Springfield Road properties there was created an embankment leading up to the playing fields. Towards the southern end of this embankment there were the remains of 3 air raid shelters. They feature only because some of Barratt's witnesses say they thought that the lines indicating drainage on the plans available to them prior to the development indicated drains serving only the air raid shelters. This has proved to be something of a 'red herring'.
19. Whilst there may well have been some form of drainage which served the air raid shelters, it was clear that the Springfield Road properties predated them and that there must have been drainage in place to cope with the run off from the fields which took the water into the main drainage system at the south east corner. Indeed that drainage system probably existed before the Springfield Road houses were built, it being unlikely that the system would have been taken through Nos 1 and 3 after they were built.
20. As to what existed in terms of drainage behind the Springfield Road properties, Mr Graham Squibbs was plainly the most impressive witness. That is not to detract from the evidence of the other witnesses. Mr Squibbs, himself an occupier of No 15 Springfield Road, is a chartered civil engineer employed by United Utilities and a specialist in run off, who, as it happens, has in the past worked with Mr Lambert, the expert engineer instructed by Barratt. He was at pains to say that his evidence was purely factual. Nevertheless, his factual evidence seen through the eyes of an expert was helpful.
21. Mr Squibbs' evidence was clear and supported the evidence of Mr Lewis, who has lived at No 17 Springfield Road for 45 years. Mr Squibbs recalled a trapezoidal gully, which discharged into a culverted water course by No 1 Springfield Road. He thought it had concrete sides. As far as he was concerned "over the fence there was something that worked." It was a noticeable ditch. He thought that the posts of the new fence were driven through the ditch. Shortly after he and his family moved into No 15 in 1986, he recalled Rochdale Council doing work of some kind on the gully. Mr Lewis remembered the gully having a flagstone bottom back in 1963 when he first lived there, about a metre wide at ground level of the gardens. After a storm he recalled there being some 2 foot of water flowing past. Mr North of No 1 Springfield Road, who was not fit enough to attend and whose evidence was read, is a retired Chartered Civil Engineer and Divisional Engineer for Greater Manchester Council. He had lived there for the last 50 years. He confirmed what is to be seen from the plans that existed at the time of the development, namely an open culvert constructed with concrete base and sides which ran into a stone covered culvert with 2 manholes giving access to the system close to his property. He described the fall from the playing fields down towards this system.
22. All witnesses were clear that there was no flooding of their properties before the building of the Barratt development other than Mr North of No 1 who referred to flooding having occurred at Nos 1, 3 and 5 at some time in the past. It is clear, however, that such flooding has no bearing on the issues with which I am concerned.
23. Mr Heywood, a Barratt employee, in March 1994 took some photographs of the eastern boundary of the field as part of the surveying exercise: it was standard practice to take photographs to determine the boundary. He was not looking for any water path, nor were his photographs aimed at showing one way or the other whether there was any form of ditch or gully between the field and the rear of the properties. As a result, all that it is possible to discern from his photographs is that there was an area between the bottom of the bank that sloped down towards the Springfield Road properties and the fence that formed their boundary; that there was a fair amount of natural debris, mostly from the trees and shrubs in the area.
24. Mr France of No 27 remembered seeing a ditch that took the water away, the type that would have been dug out; there clearly was a ditch which had been filled by the leaves from the trees that overhung it; when it was raining, it was damp and had leaves in it. He thought that the council was responsible every so often for clearing it, but could not say how often. Mr William Lambert of No 25 recalled being able to see over his fence what he described as an open culvert, very similar to what could be seen in Mr Heywood's photographs, which provided drainage, and which he believed the council used to maintain to a degree, although he had never seen them do it. Mrs Lambert, his former wife, used to look over the fence, when their young son was playing on the field; he used to look for frogs in the gully, which she described as a soil area about 3 feet wide slightly indented with a stream running down. She would not have called it a culvert. She heard that it was cleared about once a year, but never saw it.
25. Mr Bainton of Barratt held the theory that the drainage marked on the field plan served the air-raid shelters. He thought that the drainage would have pre-dated the building of the houses along Springfield Road. This was where his theory fell down, because the houses were built well before the Second World War and the shelters plainly constructed during that war. Once that is clear then it follows that there needed to be a run off of water from the field which had to explain the drainage marked on the plan to a point opposite the northernmost air raid shelter.
26. In my judgment, it is clear to see from Mr Heywood's photographs as a whole that the land levels between the slope and the old fence line. At some stage the embankment has been formed, probably, in my view, when the Springfield Road houses were built. It would have made clear sense to leave an area of hollowed out earth to act as a run off for flood water at the very least. No trial holes have been dug to determine whether in the region of the higher numbers of Springfield Road there still exists some solid base beneath the natural debris that had plainly accumulated before the development. In the light of the available evidence, however, that was not necessary, because for the purposes of determining this case, it matters not how the water path was constructed, only that it was designed to deliver the run off from the field into the drainage system at the south east corner by No 1 Springfield Road. Thanks to the evidence of Mr Squibbs, Mr Lewis and Mr North, it can now be understood, as I find, that the water path fed into a solidly formed trapezoidal gully which in turn fed into the public drainage system. Importantly, I find that the drainage system formed in this way functioned so as to drain away the worst flood water that ran off the field, without any flooding into the gardens of Springfield Road, prior to the Barratt development.
27. I now turn to October 1993, when Barratt entered into negotiations with Rochdale with a view to purchasing the site of the proposed development and investigated it. I am concerned to determine how much, if any, thought was given to the drainage of the upper field following construction, insofar as it could affect the properties of Springfield Road. In this respect there is important documentary evidence, although unfortunately the engineering file is no longer available.
28. A memorandum of a conversation between Mr Graham Swann of Barratt and Mr Richard Kerr of the planning department dated '9/11/93' read, 'GS [Graham Swann] confirmed status of drain to r/o Springfield Road = private sewer. Drain surface water of playing field. Council presently responsible for it. Will be transferred to Barratts on sale.' Mr Swann claimed that they had been talking at cross purposes; that no one at Barratt had looked at any drain other than that which appeared on Mr Bainton's marked plan; that Mr Kerr was simply asking him who was going to own it; that it was agreed Barratt was going to be responsible for the drain after the sale; that they were not aware of any other system, in other words, the water path along the rear of the Springfield Road properties; that if there had been a head wall at the end of the drain, which he understood was being considered, then he might have picked up on it.
29. In the meantime, Mr North of No 1, wrote to Rochdale in connection with Barratt's planning application on the 11^th November 1993 reminding them of his previous letter to which he had received no reply. In both letters he highlighted the importance of the drainage system which had worked well and which had caused no problems to the residents of Springfield Road, and expressed his concerns as to whether the system would be maintained after the sale of the land and development. The following are relevant quotes from the 11^th November letter:

"The whole of the surface water drawing from the playing fields is picked up in a drain running on your land at the rear of gardens in Springfield Road. …

"This surface water drain has always been maintained by the former Middleton Council and since 1974 by your Council.

"In view of the sale of the land what status does this surface water drain carry as far as your Council is concerned? As development is about to take place discharge of the whole of the surface water from this site should be taken into Mallalieu Street and overcome future problems which may occur and have occurred in the past to No 1, 3 and 5 Springfield Road."

30. Mr Kerr made it clear in his evidence that his conversation with Mr Swann of Barratt was prompted by Mr North's concerns and did not arise out of planning considerations. It is remarkable that after all this time, Mr Swann should think that they were at cross purposes. I am satisfied that they were not and that this conversation alone should have prompted an engineering investigation.
31. The significant part of a conversation between Ms Pauline Goodhall of the planning department and Mr Swann on the 19^th November was recorded in her memorandum:

"Re drain. Will be replacing drain around edge of site. Responsibility transfers to new owners … responsibility is as it is now (They're still not sure of its function). …"

32. Mr Swann accepted that so far as he was aware the drain was not replaced and held in evidence to his firm belief that it referred purely to drainage for the air raid shelters, a belief which he and Mr Bainton said they shared at the time; that he did not think of the surface water as an issue at this site.
33. Significantly, Mr Kerr gave as his reasons for contacting Mr Swann that they had a close working relationship; that Mr North was concerned there was surface water that came down to his property and hoped it was going to be taken into account; that Mr North had commented on something that ran the full length of the properties at Springfield Road; that this was one thing that stuck in his mind, because it was an issue not just related to him but was pertinent to the whole neighbourhood; that Mr North was Divisional Engineer for Manchester Greater Council when he (Mr Kerr) was "a lowly planner"; that this was why he took it seriously; that he was an engineer and would know what he was talking about. Mr Kerr said it was possibly the same day or very soon after that he spoke to Mr Swann. He was adamant that he would have passed on what Mr North had said and then to relay it back to him.
34. A note from a Chris Hughes, who unfortunately could not be traced, to Ms Goodhall dated 9^th December 1993 reads:

"Spoke to Mark Bainton at Barratts. He said that Barratts will renew the surface drain (running along the eastern boundary of the site) and replace it. He will confirm this in writing 'upon your request'. Any probs let me know."

35. Mr Kerr confirmed that Mr Hughes was a surveyor in Rochdale's estate department who was concerned with the sale of the land.
36. Mr Bainton wrote to Mr Ashworth of Field Cunningham & Co, Barratt's solicitors, on the 17^th December, plainly with reference to these conversations:

"… I can confirm that we intend to investigate the status of all the culverts on site, and carry out any works or abandon the culvert as appropriate."

37. Some 2 years later on the 30^th November 1995 Mr North wrote a detailed letter to Mr Mosscrop, Barratt's Engineering Manager, observing, in particular:

"… During the past two weeks a concrete post and panel fence has been erected over the drain area …"

38. To this, Mr Mosscrop replied on the 19^th December 1995:

"With regard to the condition of the drain, I will arrange for the cleaning out by jetting when we have completed the development works, however I do not consider the structural condition of the drain to be at risk from any works undertaken by the Company.

"I do understand your concerns, however, the development will ultimately improve the existing situation as fifty percent of the surface water 'run off' from the site will be drained to the public sewers and not into this drain."

39. In my judgment, Mr Mosscrop had either forgotten about the need to cater for the run off from the upper field or had failed properly to apply his mind to how it would drain following the development. He certainly did not claim, as Mr Lambert, Barratt's expert, has claimed, that the gap left by the Barratt fence was designed to cater for the run off.
40. I am satisfied that at the time, Barratt's employees who were concerned with this development were told that water from the field as a whole had drained down and past the Springfield Road properties from No 31 down to the south eastern corner by No 1. It is unclear at this stage whether they have simply forgotten this, as I judge to be more likely, or failed to apply their minds as to how the run off was drained, or both. I find it inconceivable that Mr Mosscrop or his engineering team did not appreciate that a water path needed to be maintained down the whole of the eastern boundary fence of the proposed development, in order to cope with the likely increase in run off from the upper field. It is not without significance that Mr Heywood's photographs included standing water in the upper field. Further, there is evidence that some form of drainage was created to prevent water running off the upper field into the north boundary of the development.
41. The evidence, that prior to the Barratt development there was no flooding, particularly to the properties between Nos 31 and Mr North's at No 1, and that the flooding of the gardens of Nos 29, 27 and 25 commenced after the erection of the development's eastern boundary fence, is uncontroversial.
42. Mr and Mrs Griffiths moved into No 29 during 1995. He recalled viewing the property in the May of that year and seeing what he described as running water between the fence and the bank. She said it looked like ground with leaves on it, but it was lower than their garden with water trickling down. He said that he used to be able to look right down the gully if he was standing by his fence. This is entirely consistent with the evidence that I have found in relation to the existing water path.
43. When they moved in, he recalled that groundworks were still being done and that there was builder's rubble the other side of his fence.
44. I take Mr North's letter of the 30^th November 1995 as being the most accurate pointer as to when construction of the Barratt fence began, namely about the middle of that month. As soon as this fence went up, said Mr Griffiths, that was when they started to get problems with the flooding: it was after Barratt put the last house in, which he thought was some 12 to 18 months after they moved in. He had asked Barratt workmen why they were taking his fence down; the site manager came and explained where he had been told to put it. Mrs Griffiths said that the fence went up between 12 and18 months after they moved in; that the first flooding started when the rains began after that. Mr France from No 27 believed the first time the flooding occurred in the rear garden to have been in 1996, after the development was complete or partially complete. Mr and Mrs Lambert of No 25 confirmed the timing of first flooding to have been at about the time when the Barratt houses were more or less completed. Mr Squibbs told of matters changing about the time Nos 23 to 29 were getting water pouring out of their houses: about the same time his back garden became wet, although there was no running water through it; "over the last couple of years" it had become slightly worse. Mr Lewis has fared worse describing how from time to time an amount of water comes down both sides of the lawn. Plainly, this upset him considerably, particularly when he had to clear the grids in the night.
45. I am satisfied that almost immediately there occurred heavy rainfall following the erection of the development's eastern boundary fence, serious flooding, in particular to the gardens of Nos 29, 27 and 25 occurred followed later by flooding to differing degrees further down Springfield Road; that this was some time in December 1996. The Barratt Customer Service card left at No 25, the Lambert's property, which stated on the back 'Work commenced today to divert water problem from your property' was dated 'Wed 11.12.96'; the card also had written on it 'Mr Moscrop' [sic] and a telephone number.
46. I am satisfied that Rochdale had maintained the water path sufficiently to avoid the risk of flooding to the Springfield Road properties. Despite making Barratt aware of the presence of the water path and the need to obtain an undertaking in writing that there would be a sufficient water path following the development, no such undertaking appears to have been sought or given. Nevertheless, the planning file does indicate that a 2 metre gap appears to have been planned between the development and the rear of the Springfield Road properties (Barratt's letter of the 14^th February 1994 to Rochdale refers).
47. There is one remaining matter of fact, namely how and when the gap between the Barratt fence and the Springfield Road properties became obstructed. It is common ground that various items have found their way into the gap. First, I am satisfied that no one from the Springfield Road properties deposited anything into the gap. It was plainly entirely against their interests to do so. Anything that has been deposited, as I find, has come from the direction of the Barratt houses. There has been some garden waste deposited. Children may well have deposited the odd item. The brick wall which was probably constructed by the owner of No 22 Carmine Fold collapsed opposite No 17 Springfield Road, crushing the concrete post and panel fence that Barratt had constructed.
48. Mr Squibbs' evidence is again useful in this regard. The collapsed wall was a retaining wall that the person in the Barratt house opposite his property had built. He thought it was 3 or 4 years after the Barratt development was completed. Significantly, however, he was definite that there was flooding "way before then."
49. I am satisfied that the flooding problem that has affected the Springfield Road properties pre dated the collapse of that wall by some 3 years at the least.
50. I turn now to the expert evidence against the background of the facts as I have found them to be.
51. The starting point is the joint statement (Part 32.12 Civil Procedure Rules). The experts agreed that there existed a water path to the rear of the Springfield Road properties; that the gap between the present boundary fences between those properties and the Barratt houses varies between approximately 200mm and 500mm (average width is agreed to be 200mm, which suggests that the gap is predominantly closer to the 200mm); that the drainage pattern after the Barratt development had increased the flow of water entering the water path at the rear of 33 Springfield Road by 66%. Otherwise, they agreed to differ as to their opinions: Mr Lambert that the various obstructions within the gap were and remain the cause of the flooding; Ms Hogg that the erection of the Barratt fence is the substantial cause with the obstructions merely exacerbating the situation; Mr Lambert that no natural springs exist in the upper field; Ms Hogg that the name Springfield Road tends to indicate a history of springs in the area.
52. The last issue is now of academic interest only, since it is clear that whatever the source there is a substantially increased run off down the eastern boundary of the upper field which enters what remains of the water path to the rear of the Springfield Road properties at No 33; that there was always going to be such an increase.
53. Ms Hogg and Mr Lambert both agreed that Barratt appear to have planned to leave a 2 metre width of land between the eastern fence of the development and the western fence of the Springfield Road properties (Barratt's letter of the 14^th February 1994 to Rochdale). Mr Lambert thought that for reasons of selling Barratt put the fence further over to make the gardens less sloping. I am satisfied that Barratt had given engineering thought to leaving a 2 metre gap, which would have retained a water path of similar dimensions to the water path that pre existed, but for whatever reason decided to reduce it.
54. Mr Lambert expressed the view that a reasonable engineer might not have detected a water path prior to the development. He accepted that, because a gap was left, it was possible that the Barratt engineers may have considered run off down the eastern boundary; that, although it was obvious to him (Mr Lambert) that there was a run off to eastern Boundary, he was not sure if he had been in mid career that he would see the same. He accepted that the presence of the manholes further down behind the Springfield Road properties might put an engineer on enquiry. In my view, Mr Lambert was being unduly generous to the engineering team at Barratt, headed by Mr Mosscrop, who has given no evidence despite being alive and well.
55. I have no difficulty in preferring Ms Hogg's opinion as to the effect of constructing the Barratt fence in the middle of the water path.
56. Mr Lambert's theoretical opinion that the gap left between the new fence and the boundary of the Springfield Road properties is sufficient to carry the worst storm water is all very well as far as it goes. However, in my judgment, it fails to take account of reality. It is only necessary to look at the nature of the gap left to see that it is obviously going to become obstructed by natural debris, which of itself is likely to skew Mr Lambert's model. To this probability there has to be added the further probability that from time to time there will occur unnatural obstructions, simply because it is a small gap that is plainly vulnerable to debris being deposited in it either accidentally or deliberately. The point is that, in my judgment, it was foreseeable that such a small gap would become obstructed in one way or another.
57. It is a fact of human nature that people, in particular children, are likely to deposit things in a small gap such as this. More to the point, it is foreseeable that it will become obstructed.
58. The fact that the water path coped with the worst storm water before Barratt obstructed it, underlines the necessity for a gap of some 2 metres to have been left to retain the water path or for some other arrangement to remove run off from the upper field before it entered the gap that was in fact left. The fact that the flooding of the gardens followed the erecting of the Barratt fence is clear evidence that the gap was too narrow to cope in reality. I reject the suggestion, for in reality it amounts to no more than a suggestion, on the part of Mr Lambert, that the cause of the flooding of the Springfield Road properties is obstruction of the gap left between their boundaries and the Barratt fence.
59. Mr Lambert almost agrees with Ms Hogg's opinion, in that he agrees that, if the resulting gap becomes obstructed, then flooding of the Springfield Road properties will occur. Where he differs from her opinion that the fence obstructs the water path, it is because in my view he has simply attempted to justify Barratt's decision to push the eastern boundary fence as far as it did.
60. For these reasons Ms Hogg's opinion is to be preferred.
61. Against the agreed background that the development has resulted in a 66% increase in the volume of water that drains to the south east corner of the retained land, I find that the fence erected by Barratt as the eastern boundary of their development obstructed the existing water path so as to cause the flooding to the properties in Springfield Road. In making this finding I also find that the 66% increase would not have affected the capacity of the pre-existing water path to drain the run off from the retained land without risk of flooding to the Springfield Road properties.
62. I am satisfied that the eastern boundary fence has since it was erected obstructed the pre-existing water path that ran down the western boundary of the Springfield Road properties; that the erection of that fence within that water path has resulted in damage to those properties; that it is impracticable to clean out the gap between the Barratt fence and the Springfield Road properties' fence; that the only feasible scheme now is to run the water from the upper field through a pipe to Springfield Road at about No 33 through Nos 31, 29, 27 and 25 and thence across Springfield Road. Both experts agree now that this is so.
63. It is common ground between the claimants and Rochdale that Rochdale had become aware of the extent of the flooding problem caused by run off from the retained land by December 1998 at the latest. Before then, Rochdale was, in my judgment, entitled to expect that a 2 metre width of land between the eastern fence of the development and the western fence of the Springfield Road properties would have been retained by Barratt (Barratt's letter of the 14^th February 1994 to Rochdale). There is an issue whether Rochdale, once it became aware of the much restricted water path, came under a measured duty of care to the claimants.
64. I consider now where my findings lead as a matter of law.
65. First I am satisfied that the building of houses does not constitute the creation of a special hazard such as to be an extraordinary use of land. Laws LJ in Arscott v The Coal Authority [2005] Env LR 6 put it this way at paragraph 29:

"I should add that, while no doubt the rule in Rylands v Fletcher is alive and well, and what are plainly natural— perhaps "ordinary" is a better word — uses of land will continue to be respected and allowed unless pursued excessively, still the importance of the distinction in our law between natural and non-natural uses is receding. So much is suggested by such cases as Leakey v National Trust [1980] QB 485 (decided in this court), referred to by Lord Walker in Transco. It is stated in the headnote:

" … an occupier of land owed a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such a hazard was natural or man-made; that the duty was to take such steps as were reasonable in all the circumstances to prevent or minimise the risk of injury or damage to the neighbour or his property of which the occupier knew or ought to have known; that the circumstances included his knowledge of the hazard, the extent of the risk, the practicability of preventing or minimising the foreseeable injury or damage, the time available for doing so, the probable cost of the work involved and the relative financial and other resources, taken on a broad basis, of the parties; …"

(The Leakey factors)

66. It follows that I do not think that the rule in Rylands v Fletcher has application in the present case. I accept Mr Horne's submission that this is not a case where there has been a non natural user of the development land.
67. In my view, the starting point is the natural path of water draining from the retained land. As I have found it was clear in 1993 and at the time of the development that the water ran off the field down the water path.
68. The following passage in Clerk & Lindsell (19th Edition) represents a correct statement of the law in relation to who can be sued in respect of a nuisance at paragraph 20-51 under the heading "Liability of Actual Wrongdoer":

"The person liable for a nuisance is the actual wrongdoer, whether or not he is in occupation of the land. …. the person who originally created the nuisance remains liable for all the damage flowing from its continuance, even though by reason of his not being in possession of the premises he is unable to prevent their continuance. "If a wrongdoer conveys his wrong over to another, whereby he puts it out of his power to redress it, he ought to answer for it." Accordingly, he remains liable even if he has sold or leased the building."

69. The concept of the measured duty was considered in Holbeck Hall Hotel v Scarborough Borough Council [2000] QB 83, where a cliff was known to be unstable, remedial works were carried out negligently, and the extent of the resulting collapse which went so far as effectively to destroy a hotel. Stuart-Smith LJ giving the leading judgment in the Court of Appeal considered the extent of the defendant's knowledge required, starting at paragraph 39:

"In order to give rise to a measured duty of care, the defendant must know or be presumed to know of the defect or condition giving rise to the hazard and must, as a reasonable man, foresee that the defect or condition will, if not remedied, cause damage to the plaintiff's land."

and at paragraph 42:

"The duty arises when the defect is known and the hazard or danger to the claimants' land is reasonably foreseeable, that is to say it is a danger which a reasonable man with knowledge of the defect should have foreseen as likely to eventuate in the reasonably near future. It is the existence of the defect coupled with the danger that constitutes the nuisance; it is knowledge or presumed knowledge of the nuisance that involves liability for continuing it when it could reasonably be abated."

70. Laws LJ in his review of the Law of Nuisance in Arscott said:

"I find it most convenient to start with the speech of Lord Wright in the well known decision of their Lordships' House in Sedleigh-Denfield v O'Callaghan [1940] AC 880 at 903:

'The ground of responsibility is the possession and control of the land from which the nuisance proceeds. … A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society. The forms which nuisance may take are protean.'

"As I shall show the balance here referred to is of the first importance both in considering the scope of the common enemy principle and in seeing whether it should be modified in light of the obligations arising under ECHR imposed on public authorities by HRA. But first there is more to say about the general law of nuisance. … Lord Wilberforce said in Goldman v Hargrave [1967] 1 AC 645, 657: ' the tort of nuisance, uncertain in its boundary, may comprise a wide variety of situations, in some of which negligence plays no part, in others of which it is decisive.' Lord Lloyd of Berwick (in Hunter v Canary Wharf [1997] AC 655, at p 695) provided a simple classification:

'Private nuisances are of three kinds. They are (1) nuisance by encroachment on a neighbour's land; (2) nuisance by direct physical injury to a neighbour's land; and (3) nuisance by interference with a neighbour's quiet enjoyment of his land.'

"… The unifying factor in all three categories is that there is some sort of invasion of the claimant's land, or his enjoyment of it."

71. The following principle of law is uncontroversial: that an occupier is liable if it has either created or authorised the nuisance, or adopted or continued the state of affairs that gives rise to the nuisance, regardless of its origin (Sedleigh-Denfield).
72. In my judgment, Barratt was negligent in constructing the eastern boundary of its development in such a way as to restrict the natural flow of water from the south eastern corner of the retained land past the Springfield Road properties. It was reasonably foreseeable that the resulting restricted gap for the reasons I have given would not cope with the volume of water that could flow from the retained land, particularly after heavy rain; that the water would encroach into the claimants' and other Springfield Road properties to the south of them; that damage would result. In my judgment, such encroachment resulted from an unreasonable use of the land which Barratt had purchased from Rochdale and constituted a nuisance the effects of which continue to the present and will continue until abated.
73. It follows that I hold Barratt to be liable to the claimants in negligence and nuisance for loss and damage caused by the flooding, to include the cost of necessary remedial work including the cost of abating the nuisance by the only viable scheme.
74. I turn to the claimants' case against Rochdale.
75. I derive the following principle from the authorities, in particular, paragraph 29 of Laws LJ's judgment in Arscott, that the owner of higher land does come under a measured duty of care of the kind established in Leakey, if he becomes aware that even naturally draining water from his land is causing damage to a lower owner. Such was the case following Rochdale's knowledge of the flooding problem as from December 1998. It was foreseeable on the part of Rochdale that, unless the nuisance caused by the obstructed water path was abated, damage would continue to occur as a result to the claimants' land.
76. The measured duty of care has to be considered in the light of the factors that any scheme to abate the nuisance required action on Rochdale's part to construct the necessary drainage ditches and catch point for the water draining from the retained land. That in effect was the missing piece of the 'jig saw', because the owners of Nos 33, 31, 29, 27 and 25 Springfield Road, had all consented to the proposed culverted pipe passing through their land. The claimants had no power to enable the scheme to be completed. On the other hand, Rochdale has throughout owned the land where the water arises; it sold the land for development; it failed to follow through the concerns in respect of drainage which, as I have found, were expressed to Barratt at the time of the sale; there is no solution except through work done on Rochdale's land. I agree with Mr Terry that, in terms of the measured duty of care, the 'scales tip in one direction.'
77. In failing actively to co-operate in such a solution, Rochdale appears to have adopted a similar position to that of the National Trust in Leakey by maintaining that it was not under a duty to abate a naturally occurring nuisance. In my judgment, that was a mistaken stance. Mr Clegg has, however, helpfully indicated that Rochdale would not object to the solution of creating a catch pit on its land; that it would be unreasonable to refuse.
78. It follows that I reject Mr Cleggs's submission based on Palmer v Bowman [2000] 1 WLR 842 and Green v Somerleyton [2003] EWCA Civ 198 and find Rochdale to have been in breach of their measured duty of care in failing to abate the nuisance, albeit that the primary cause of the nuisance was Barratt's obstruction of the water path.
79. I turn now to Barratt's part 20 claim against Rochdale. It is brought pursuant to the terms of an indemnity contained at clause 20 (a) of the Agreement which reads:

"THE Vendor hereby declares that

"(a) to the best of its knowledge the Property is not subject to any rights of light or air or other rights or easements and there are no sewers culverts pipes wires cables conduits or other Service Media or apparatus in or under or through the Property ("Conduits") which will prevent or interfere with the residential development of the Property or whereby the Purchaser will reasonably and necessarily incur additional costs or expenses hereby indemnifies the Purchaser and its successor in title from and against all actions proceedings costs damages expenses claims demands and liabilities in respect of any interference with or disturbance or any alleged interference or disturbance of any such rights or easements or conduits (except those of which the Vendor does not presently have knowledge or which the Purchaser should reasonably and properly have gained knowledge of by inspection of the Property prior to the signing of this Agreement) caused by the erection or subsequent existence of the residential development of the Property…"

80. I have no difficulty in resolving the indemnity issue as between Barratt and Rochdale. In the light of my finding that Barratt were aware or at the very least ought to have been aware of the existence of the water path along the whole eastern boundary of the development, I accept Mr Clegg's submission and hold that clause 20(a) does not operate to indemnify Barratt against the claims of the claimants against them (Barratt).
81. In any event, it is necessary to construe the indemnity clause strictly. The words "which will prevent or interfere with the residential development of the Property" are plainly important and should be construed giving the words their ordinary meaning. It is clear that the existing water path down the western boundary of the Springfield Road properties neither prevented nor interfered with the development, particularly since it was anticipated that a 2 metre gap would be left and, as I have found, Barratt ought to have been aware of the existence of the water path.
82. In my judgment, the words "whereby the Purchaser will reasonably and necessarily incur additional costs or expenses" are not sufficiently clear to cover the reasonable maintenance of the water path.
83. Further, in my judgment, the words are not sufficiently clear to indemnify Barratt in respect of their own negligence. The words "caused by the erection or subsequent existence of the residential development" are too wide to include the negligence of the purchaser.
84. Even if those words might otherwise have availed Barratt, the words "except those of which the Vendor does not presently have knowledge or which the Purchaser should reasonably and properly have gained knowledge of by inspection of the Property prior to the signing of this Agreement" plainly cover my findings of fact.
85. Barratt's reliance on this indemnity clause fails in respect of the claimants' claim "in respect of [its] interference with or disturbance" of the natural drainage from the retained land along the water path.
86. There will be judgment accordingly, the precise terms of which are to be determined by a telephone hearing to be arranged on a date following the formal handing down of this judgment, at which directions for the future management of the case will be made.