The risk of flooding in England and Wales is increasing year on year and exposing millions of homeowners to the possibility of property damage and the consequent misery that this causes. In some cases, there is nothing you can do but try to claim on your insurance, assuming that you have managed to get cover in place.
However, where the cause of flooding can be traced directly to something that your neighbour has done or failed to do, then the position is different. In this situation, it may be possible for you to claim compensation for any damage that has been caused.
You may also be able to limit the chances of your property being flooded again by securing an order from the court which obliges your neighbour to take remedial action.
As Kenneth Amakye, civil disputes lawyer with Morlings Solicitors in Maidstone explains, ‘Your ability to hold your neighbour to account will depend on how the flooding to your property occurred and whether a court can be convinced that it is fair, just and reasonable for your neighbour to be held responsible for the harm that you have sustained.’
There are a range of factors that will need to be taken into account and accordingly it is best for advice to be taken from a dispute resolution solicitor so that you know where you stand.
Flooding caused because your property is on ground lower than your neighbour
It has long been accepted that the owner of a property which lies at a lower level than that of a neighbouring property has no right to take action in respect of flooding caused by water which runs naturally across their neighbour’s land. This means that where the source of your problem is, for example, rainwater which automatically travels downhill towards your property due to the topography of the area in which you live, then no action against your neighbour will usually be possible as a result of any flooding that occurs.
It should be noted that there is no obligation on you to accept the water that is produced and it is always open to you to take action to prevent such water from entering your land, for example by erecting a wall. However, before taking such a step you would be well advised to seek guidance from a specialist flood defence company.
Flooding caused by a natural hazard on your neighbour’s land
It used to be the case that there was no right to bring a legal claim in respect of flooding caused to a property by a natural hazard on neighbouring land. However, this changed in 1980 when the Court of Appeal confirmed in Leakey v National Trust that where an occupier knows, or ought to have known, that a natural hazard exists then there will be a measured duty on them to do all that is reasonable to prevent or minimise the risk of that hazard causing foreseeable harm.
As a consequence of this, where the source of your problem is, for instance, a natural pond on your neighbour’s land which has a tendency to overflow, then it may be possible for you to take action but only where this is justified in the circumstances.
This will be determined by reference to:
- the extent of the flood risk that the natural hazard poses;
- whether it is foreseeable that if a flood occurs your property will be damaged;
- whether there is anything practicable that can be done to address the risk that exists;
- how extensive any permissible works would be and how much they would cost;
- the financial resources that you and your neighbour have at your disposal; and
- any other factors that the court believes it is appropriate to take into account.
Liability for natural hazards is more likely to be imposed where the hazard in question and risks associated with it are obvious and where your neighbour could have easily taken preventative or mitigating action and at little or relatively modest expense.
So, returning to the pond example above, if the flood risk could be addressed by the installation of a small and easy to install barrier then this might be something that an occupier could be expected to do. However, where the nature of the pond means that the only way to stop it flooding would be through dredging, creating artificial banks or constructing a second overflow pond then this might not be considered a reasonable thing to expect the occupier to do, although it would of course depend on the circumstances.
Flooding caused by building or engineering works
Where the cause of the flooding that has occurred can be linked back to building or engineering works that have been carried out on your neighbour’s property, then it may be possible for you to bring a claim by relying on the rules that apply to flooding which can be shown to stem from ‘non-natural’ or artificial land uses.
Such rules might serve to help you where the source of your problem can be shown, for instance, to relate to your neighbour’s decision to:
- pave over their garden in order to create a driveway; or
- to install a downpipe to capture water from their roof which, whether they realise it or not, has been positioned to discharge not into a free-flowing mains drain, but rather straight onto the ground and thus directly onto your land.
The non-natural or artificial use rules may also help where flooding has been caused by a drain blockage, a clogged-up culvert or an infilled drainage ditch.
In some circumstances where building work has caused the problem, it may be possible for action to be taken against the construction company instead of your neighbour. This might be the case, for example, where building materials have been allowed to enter a drain and this has resulted in it becoming easily overwhelmed.
Flooding caused by your neighbour’s own flood defences
Where the source of your problem appears to be flood defences which have been installed by your neighbour to protect their own property from the risk of harm, then it may also be possible for a claim to be brought. This will usually only be the case where the steps they have taken can be shown to be excessive or where there is evidence to suggest that they have been devised to deliberately disperse accumulated water onto your land.
How a solicitor can help
A solicitor can consider the circumstances of your case and tell you at an early stage whether they think that a claim may be possible, whether against your neighbour or someone else such as a local authority or water company.
They can also help you to:
- compile any evidence that you will need;
- support you in presenting a compelling case in the hope that this enables you to achieve an early out-of-court settlement;
- facilitate the appointment of an independent mediator or specialist flooding expert where their services are required; and, where all else fails
- issue legal proceedings to ensure that you get the compensation you deserve and, if needed, a court ordered injunction to protect you from the risk of ongoing harm.
Contact us
For further information, please contact Kenneth Amakye in our dispute resolution team on 01622 673081 or email at kenneth.amakye@morlings.com.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.