Green v Lord Somerleyton & Ors

Factual and Procedural Background

This opinion concerns an appeal by the Plaintiff against an order made by Judge Rich QC in the High Court Chancery Division. The Plaintiff owns Priory Marshes, a marshland area used for cattle grazing, located adjacent to Scale Marshes, owned by the Defendants as trustees of a family settlement. The land features various natural and artificial watercourses, including Mill Dyke and Blocka Run, historically used for drainage.

In December 1993, following heavy rainfall, significant flooding occurred on Priory Marshes, partly due to water flowing from Scale Marshes and a nearby lake known as Fritton Lake, owned by one of the Defendants. The Plaintiff commenced proceedings in December 1999 seeking declarations that the Defendants had no right to discharge water from the lake or Scale Marshes onto Priory Marshes, injunctions to prevent such discharges, and damages for loss caused by flooding.

The Plaintiff's claims included a Rylands v. Fletcher claim against the Defendant owner of the lake, which was rejected and not appealed. The main claim against the trustees was in nuisance and the Defendants counterclaimed for a declaration of an easement allowing drainage from Scale Marshes through Priory Marshes.

The trial judge dismissed the Plaintiff's claims and granted the Defendants the easement. The Plaintiff appeals those parts of the decision.

Legal Issues Presented

1. Whether the 1921 Conveyance and associated Drainage Deed impliedly reserved or granted an easement to the Defendants (Trustees) permitting drainage of water, including from Fritton Lake, through Priory Marshes.
2. Whether the Defendants owed a duty of care under nuisance principles (specifically the duty identified in Leakey v. National Trust) to prevent flooding caused by naturally flowing water emanating from the lake and Scale Marshes.
3. Whether the Defendants breached any such duty of care.
4. The applicability of the doctrine of lost modern grant to establish a prescriptive easement.
5. The effect of the 1958 Drainage Deed and its exempting proviso on liability for flooding.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff contends that in 1921 there were two distinct drainage systems: one for the upper catchment area including Fritton Lake, and another for Scale and Priory Marshes. The easement impliedly reserved does not extend to water emanating from the lake.
• The Plaintiff submits the judge should have found it reasonably foreseeable by the Defendants that flooding would occur due to cessation of water abstraction and silting of Blocka Run.
• The Plaintiff argues that a duty of care under Leakey applies to naturally flowing water and that the Defendants breached this duty by failing to maintain their stretch of Blocka Run, effectively removing an artificial flood protection feature.
• The Plaintiff relies on authorities including Rees v. Skerrett, Abbahall Ltd v. Smee, Holbeck Hall Hotel Ltd v. Scarborough Borough Council, and Marcic v. Thames Water Utilities Ltd to support the existence of such a duty and the burden of proof on the Defendants.
• The Plaintiff challenges the implication of an easement extending to lake water, and submits that pre-1925 law did not allow implication of such reservation, nor can a regrant be implied without evidence of execution.
• The Plaintiff supports the rejection of the alternative prescriptive easement claim based on lost modern grant, arguing natural water flow is not capable of being the subject of an easement and that the flow was too uncertain and intermittent.

Respondents' Arguments

• The Defendants emphasize the careful factual findings of the trial judge and submit that the Blocka Run, even when operative, did not carry all water from the upper catchment, and that Scale and Priory Marshes have always been natural receptors of excess water.
• They argue the Plaintiff adopted the 1958 Drainage Deed arrangements by operating and maintaining the pump, thus accepting its burdens and benefits, including the exempting proviso which excludes liability for flooding caused by extraordinary rainfalls or pump failure without neglect.
• The Defendants submit no Leakey duty arises in relation to naturally flowing water, relying on Thomas & Evans Ltd v. Mid-Rhondda Co-operative Society and Elston v. Dore, and argue that liability requires interference with natural water flow, which is absent here.
• They dispute the application of res ipsa loquitur and argue the Plaintiff failed to particularize or prove what steps the Defendants should have taken to prevent flooding.
• The Defendants contend the implied easement arises from the 1921 Conveyance incorporating the 1921 Drainage Deed, which envisaged drainage of all water naturally arriving on Scale Marshes, including from the lake.
• Alternatively, they argue that the prescriptive easement claim based on lost modern grant is supported by sufficient factual findings and should not have been rejected.
• They further assert that the 1958 drainage arrangements represent a reasonable apportionment of responsibility and that clearing the Blocka Run would be disproportionate in cost relative to likely damage.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Rylands v. Fletcher (1868) LR 3 HL 330	Liability for escape of water from a reservoir	Rejected on facts; no appeal against this part
Leakey v. The National Trust [1981] QB 485	Duty of care in nuisance to prevent natural hazards causing damage	Duty recognized as applying to floodwater if reasonable steps are not taken
Thomas & Evans Ltd v. Mid-Rhondda Co-operative Society [1941] 1 KB 381	No duty to maintain artificial flood protection structures; natural water flow	Disagreed with by appellate court here; no exception to Leakey duty for natural water flow
Elston v. Dore (1982) ALR 577 (High Court of Australia)	No liability in nuisance for blocking artificial drainage if damage due to natural deficiency of land	Considered but distinguished; court rejects its application to exclude Leakey duty
Rees v. Skerrett [2001] 1 WLR 1541	Duty of care arises when artificial features affecting flood protection are removed	Relied on by Plaintiff; court acknowledges duty can arise from removal of artificial flood protection
Abbahall Ltd v. Smee [2002] EWCA Civ 1831	Duty of care in nuisance for failure to maintain artificial flood protection	Relied on similarly to Rees; supports existence of duty
Holbeck Hall Hotel Ltd v. Scarborough Borough Council [2000] QB 836	Duty of care where damage caused by natural forces	Supports principle that duty can arise from natural forces if reasonable steps are required
Marcic v. Thames Water Utilities Ltd [2002] QB 929	Burden of proof on defendant to show reasonable conduct under nuisance duty	Relied on by Plaintiff to assert evidential burden on Defendants; court rejects res ipsa loquitur here
Palmer v. Bowman [2000] 1 All ER 22 CA	Natural flow of water is incident of land ownership and not subject to easement	Distinguished; court holds easement over dykes draining water shared by both properties is valid
Honey v. Silversprings Bleaching and Dyeing Co Ltd [1992] Ch 268	Requirements for prescriptive easements - certainty and uniformity of use	Judge rejected prescriptive claim; appellate court finds sufficient factual basis to support it
Pwllbach Colliery v. Woodman [1915] AC 634	Implied easements based on common intention of parties	Applied to find implied easement of drainage reserved in 1921 Conveyance
Delaware Mansions Ltd v. Westminster County Council [2002] 1 AC 321 HL	Reasonableness as basis of neighbourly duties; duty to take reasonable steps to prevent damage	Referred to in support of duty of care principles under Leakey
L. E. Jones Ltd v. Portsmouth City Council [2003] 1 WLR 427	Occupier’s control over hazard justifies liability for failure to act reasonably	Supports rationale for imposing duty of care in nuisance
Banque Bruxelles SA v. Eagle Star [1997] AC 191	Duty of care owed must relate to kind of loss suffered	Applied to emphasize scope of Leakey duty
Whalley v Lancashire and Yorkshire Railway Co (1884) 13 QBD 131	Liability for diverting storm waters onto neighbour’s land	Referenced as example of liability for artificial diversion of water
Bennetts v Honroth [1959] SASR 170	Liability in nuisance for diverting storm water by artificial means	Referenced similarly to Whalley
Home Brewery Co Ltd v. William Davis & Co [1987] QB 339	Liability for man-made interference with natural flow of water	Relied on by Defendants to show interference required for liability
Bybrook Barn Centre Ltd v. Kent County Council [2000] CA (unreported)	Liability for man-made interference with water flow	Similar application as Home Brewery
St. Helens Smelting Co. v. Tipping	General nuisance principles	Referenced in argument but not specifically applied
Donoghue v. Stevenson	Neighbour principle in negligence	Referenced in argument but not specifically applied
Sedleigh-Denfield v. O'Callaghan	Liability for nuisance arising from artificial conditions	Referenced in argument but not specifically applied

Court's Reasoning and Analysis

The court began by affirming the factual findings of the trial judge, including the physical characteristics of the land, the history and function of the drainage systems, and the circumstances of the 1993 flooding. It accepted that the flooding was caused by extraordinary rainfall and the breakdown of the pump, with no proven neglect by the parties, thus engaging the exempting proviso in the 1958 Drainage Deed which excludes liability for such events.

Regarding the Defendants' claim to an easement, the court held that the 1921 Conveyance, incorporating the 1921 Drainage Deed, impliedly reserved an easement of drainage over Priory Marshes for water naturally arriving on Scale Marshes, including water from the lake. This was consistent with the common intention of the parties and necessary for effective drainage. The court rejected the Plaintiff's argument that the easement did not extend to lake water.

The alternative claim to an easement by prescription under the doctrine of lost modern grant was also upheld. The court found that the usage was sufficiently certain and uniform to support such a prescriptive right, distinguishing the case from Palmer v. Bowman.

Turning to nuisance, the court undertook detailed analysis of the duty of care principles established in Leakey and related authorities. It rejected the Defendants' submission that no such duty arises in relation to naturally flowing water, concluding that the tort of nuisance imposes a duty to take reasonable steps to prevent foreseeable harm, including from natural hazards. The court emphasized that the distinction between natural and artificial features is often uncertain in a man-made landscape.

However, the court found no breach of duty by the Defendants. It noted the reasonable apportionment of responsibility under the 1958 Drainage Deed, the absence of evidence that the Defendants failed to act reasonably, and the Plaintiff's failure to particularize or propose effective remedial steps. The court rejected the Plaintiff's submission that the evidential burden shifted to the Defendants under res ipsa loquitur.

Finally, the court dismissed the appeal, affirming the trial judge's dismissal of the Plaintiff's claims and upholding the declaration of the easement in favour of the Defendants.

Holding and Implications

The court’s final decision was to DISMISS THE APPEAL and allow the cross appeal.

The holding confirms that the Defendants are entitled to an implied easement of drainage over the Plaintiff’s land, including drainage of water emanating from the lake. The court also affirms that the Defendants owed a duty of care under nuisance principles to take reasonable steps to prevent flooding caused by naturally flowing water but found no breach of that duty.

The 1958 Drainage Deed’s exempting proviso operates to exclude liability for flooding caused by extraordinary rainfall and pump failure without neglect. The decision leaves the existing drainage arrangements intact and provides a clear framework for the apportionment of responsibility between the parties.

No new legal precedent altering the substantive law of nuisance or easements was established; rather, the court applied established principles to the facts of this case, emphasizing reasonableness, common intention, and the practical realities of the drainage systems involved.