Lawbite: Highway to (flooding) hell!

Background / County Court Decision

The front garden and driveway of the Claimants’ home flooded at least 20 times between 2012 and 2024, as a result of water running off an adjoining road, the Green. The Green is a highway maintained by Cheshire East Council (the “Council”). 

Despite the Claimants’ numerous complaints to the Council over the years, the flooding stopped only after the Council jetted the drain in November 2024.

The Claimants brought a claim against the Council in nuisance in September 2025, claiming damages of c.£100,000.

The County Court judge found the Council liable in nuisance and awarded £42,500 in damages – such figure comprising in part loss of value of the property and in part loss of amenity in respect of the Claimants.

The Appeal

The Council appealed, arguing that the judge had set too high a standard.

The Council argued that it had taken steps to manage flooding, and highlighted the limited resources available to deal with extensive flooding risk in its area – the Council was responsible for:

• c.104,000 gullies; 
• c.28,000 properties at risk of interior flooding from surface water; and 
• c.5,000 properties at high risk of riparian flooding 

It also argued that it was not responsible for flooding caused by water coming onto the Green from other land before flowing onto the Claimants' property. It contended that its responsibilities were limited to water originating on the highway itself.

The High Court rejected every ground of appeal.  The Council had failed to take reasonable steps to stop natural water damaging neighbouring land,  and the source of the water made no difference. 

Helpfully, the High Court affirmed the County Court judge’s decision to adopt Vernon Knights Associates v Cornwall Council [2013] EWCA Civ 950 as summarising the law on private nuisance in a flooding case of this kind. That case provides that the Court is to undertake a multi-factorial assessment in the light of the circumstances, with the following principles in mind:

1. a landowner owes a measured duty in both negligence and nuisance to take reasonable steps to prevent natural occurrences on his land from causing damage to neighbouring properties;
2. in determining the content of the measured duty, the court must consider what is fair, just and reasonable as between the two neighbouring landowners. It must have regard to all the circumstances, including the extent of the foreseeable risk, the available preventive measures, the costs of such measures and the resources of both parties; and
3. where the defendant is a public authority with substantial resources, the court must take into account the competing demands on those resources and the public purposes for which they are held. It may not be fair, just or reasonable to require a public authority to expend those resources on infrastructure works in order to protect a few individuals against a modest risk of property damage.

Key points:

• a public body’s limited budget will not excuse years of ineffective, purely reactive maintenance
• known flooding “hotspots” arguably call for a proactive and documented maintenance plan
• the applicable duty is a "measured" one, however, and not an absolute obligation to prevent flooding. The court confirmed that liability depends on a fact-sensitive assessment of matters such as the foreseeable risk, the steps available to address it, the associated cost, and the pressure on the authority's resources
• authorities cannot avoid liability by arguing the water came from neighbouring land