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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Lambert & Ors v Barratt Homes Ltd & Anor [2010] EWCA Civ 681 (16 June 2010) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/681.html Cite as: [2010] Env LR D8, [2010] 33 EG 72, 131 Con LR 29, [2010] NPC 69, [2010] 25 EG 103 (CS), [2010] EWCA Civ 681, [2010] BLR 527, [2010] JPL 1625, [2010] 2 EGLR 59

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IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS TCC
HH JUDGE GRENFELL
8T00539

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/06/2010

President of the Queen's Bench Division

1. This is the judgment of the Court.

Introduction

2. The claimants are or were respectively householders of numbers 25, 27 and 29 Springfield Road in Middleton, Rochdale. These properties lie to the East of land which was formerly a school playing field owned by the second defendants, Rochdale Metropolitan Borough Council. The claimants' gardens back onto the edge of the former playing fields on a line which runs approximately from North to South and parallel with Springfield Road. The field slopes from North West to South East, and surface water naturally drains in that direction generally towards the line of the gardens of Springfield Road and towards the South East corner of the former playing field. There was a man-made drainage ditch which ran along most of the western side of the field, starting to the north of the claimants' properties and draining into a culvert at some point to the South of their properties. The culvert then carried the surface water beneath numbers 1 and 3 Springfield Road, beneath and across Springfield Road itself to a manhole in the very south eastern corner of the playing fields of St Leonard's Primary School on the eastern side of Springfield Road. These drainage arrangements were historically satisfactory.
3. In 1993, Rochdale sold the lower part of their playing field to the first defendant, Barratt Homes Limited, for housing development. Rochdale retained the upper part of the field. The Northern boundary of the land acquired by Barratt abutted the eastern boundary approximately in line with the garden of 33 Springfield Road, two houses to the north of the claimants' properties. Barratt carried out their housing development completing it towards the end of 1996. In doing so, they built up the boundary land somewhat and constructed a wall or fence up against the eastern boundary of the former playing field. They thereby negligently filled in and blocked the lower part of the drainage ditch and culvert from approximately the level of number 33 Springfield Road southwards. If there was an intention to leave a sufficient gap for drainage between this fence and the boundary, this was not achieved. In the result, since late 1996, surface water from Rochdale's retained Northern part of the playing field, flowing naturally and to an extent directed eastwards by the northern boundary fence of Barratt's development, accumulates in the Southeast corner of the retained land and on occasions floods into the claimants' properties causing damage. So far as might be material, it may be that the water flows from Rochdale's retained land onto part of the land acquired by Barratt before passing onto the claimants' properties. In these proceedings, the claimants claim damages and other relief against both Barratt, who are plainly responsible for the flooding, and also against Rochdale, who equally plainly are not responsible, at least according to an ordinary understanding.
4. Barratt contested the claims. But H.H. Judge Grenfell, sitting in the Technology and Construction Court in Leeds, had no difficulty in finding them liable to the claimants in damages in a judgment delivered on 17^th February 2009. He also found Rochdale liable for breach of a measured duty to take reasonable steps to abate the nuisance comprised in the water flooding from their land to cause damage on the claimants' land. Toulson LJ gave Rochdale permission to appeal, also granting them the necessary extension of time in which to do so.

Extension of time

5. The claimant respondents, through Mr Terry, seek to have Toulson LJ's extension of time set aside, the claimants not having been heard on this topic before Toulson LJ made his order. Mr Terry says that Rochdale were well out of time in issuing their Appellants' Notice and have no proper excuse for the delay. He says that a proper application of rule 3.9 of the Civil Procedure Rules should not result in an extension. The judgment was given on 17^th February 2009. The Appellants' Notice was issued on 2^nd November 2009. Rochdale were not entirely inactive in the intervening months. The order following the judge's judgment was not finalised until 3^rd November 2009, because Rochdale took the view both that the appropriate order was not clear, and that paragraphs 76 and 77 of the judgment did not give sufficient reasons for the conclusion which the judge reached. There was accordingly a hearing on 12^th October 2009, at which the judge was invited to clarify his reasons, and to an extent during discussion he did so. The eventual order emerged from that hearing. We accept that there was a period of inactivity in the first two or three months after the 17^th February 2009 judgment. There will also have been some general prejudice to the claimants, although it is questionable whether the relief works (see below) could have been carried out in the school summer holidays of 2009. We accept, however, as will appear, that there was some force in Rochdale's contention that the judgment, if it were to stand, needed clarification and elaboration. In the result we do not set aside the extension of time.

Relief works

6. Barratt have disabled themselves by selling their development from carrying out works to enable the water to flow away by its former course. The practical solution of the intermittent flooding problem has been developed over the years, so that it is now, so far as we are aware, practical and capable of being carried out. It requires the construction of a catch pit in the southeast corner of Rochdale's retained land; the construction of a drain from the catch pit beneath the rear gardens of numbers 31 to 25 Springfield Road, the drain then running beneath number 25 and across Springfield Road at that level into St Leonard's school playing fields to a manhole. The drain would then turn South close to the boundary of that playing field to reach the manhole in its southwest corner into which the drain which Barratt blocked used to flow by its former route. This scheme requires the consents of Rochdale for the catch pit, the house owners of numbers 33 to 25 Springfield Road, and of Rochdale again as highway authority and proprietor of St Leonard's School. It may also require the consent of United Utilities plc into whose sewer the water would by its new path flow. We understand that these consents are all, subject perhaps to United Utilities, available. As to United Utilities, it is in essence the same water draining into the same sewer, but by a different route. We were told that the revised estimate of the cost of these works is £85,000, which is the total of the sums which Barratt (£55,000) and Rochdale (£30,000) have paid on account pursuant to the judge's order of 3^rd November 2009. The work on the land of St Leonard's School needs to be carried out during the school summer holidays.
7. Now that Barratt have been held liable and are not appealing the judgment against them, the work must surely be done during the summer holidays of 2010, whatever the outcome of this appeal. It is surely senseless to prolong this expensive litigation when a viable solution and the means of paying for it are available.

The proceedings

8. The bones of the relief scheme which has now been developed had been worked out by 14^th August 2001, when the claimants' solicitors wrote to Barratt and Rochdale, shortly describing an engineering proposal essentially such as we have described. It was said that finance was required from Barratt and/or Rochdale and the approval and assistance of Rochdale was sought. The letter to Rochdale required them (together with Barratt) to be financially responsible for resolving the drainage problem and the subsequent damages suffered to "our principals insureds' properties". It is of some relevance that the claimants were represented by insurers and presumably still are. We are not aware that this letter received a contemporary substantive response from Rochdale, but the evidence and documents before the judge (and this court) were and are palpably incomplete.
9. The proceedings were started on 29^th October 2002. The Particulars of Claim alleged that Barratt were negligent, which Barratt denied. They maintained their denial until the judge found against them. As we have said, they do not appeal that decision. The case against Rochdale was that, although they were admittedly not responsible for blocking the culvert, they came under a measured duty of care to take reasonable and appropriate steps to prevent water originating on the retained undeveloped land from accumulating in the blocked culvert and then spilling out onto the claimants' properties in a manner and to an extent that it would not have done if the culvert had not been blocked. The pleading alleged that Rochdale knew of the problem by December 1998 or January 1999 at the latest. It referred to the letter of 14^th August 2001. It was then said that Rochdale had failed or refused to agree to undertake any reasonable or appropriate steps to prevent water from their retained land spilling onto the claimants' properties. Rochdale appeared to be unwilling to agree to a pleaded proposal for relief works equivalent to that in the letter of 14^th August 2001. Rochdale were alleged to be in breach of their measured duty of care and the claimants, it was said, were entitled to a mandatory injunction requiring Rochdale to abate the nuisance and to damages equivalent to those claimed against Barratt. Thus, although the pleading did not explicitly spell out the scope of the measured duty of care, it was obviously by inference alleged that its scope extended to obliging Rochdale themselves to carry out the necessary relief works at their own expense. That was, we think, surprising, when it was, as has now been judicially established, Barratt who were negligently responsible for causing the overflow of water.
10. The defence denied the allegation that Rochdale were under a measured duty of care. This is unsurprising when the scope of the alleged duty was as wide as we have described.
11. Much time passed before the questions of liability came before the judge for trial. We have an incomplete evidential picture of all that took place in these years, but we do know that Rochdale were not entirely inactive or uncooperative. In particular, correspondence in April 2006 shows that Rochdale's solicitors had been corresponding with the owner of 33 Springfield Road to secure his consent to work on his land to effect relief works and a solicitor's attendance note of 5^th September 2006 showed that consents were obtained or sought from others. That attendance note recorded a view of the claimants' solicitors that there was no prospect of agreeing any form of settlement with Barratt in relation to liability until they had a definite scheme capable of being put into place and costings. Little progress was likely to be made with Barratt until they had a firmer idea what scheme could be put in place and what it would cost. A following letter of 12^th September 2006 expressed the claimants' solicitor's view that there was little point in proceeding to obtain consent from the governors of the school and from United Utilities until the scheme had been formally costed and it was known that it could be put in place subject to appropriate consents. Likewise mediation was regarded as premature. Rochdale's solicitors replied to the effect that they were liaising with their clients regarding the consents from United Utilities and the governors of the school.
12. As we say, we regard this as an incomplete picture of what was happening in the years before the case came on for trial. But we do know that Rochdale were in some respects at least cooperating with the claimants.

The judge's judgment

13. The judge held Rochdale liable on the claim advanced against them. He expressed his essential reasoning in paragraphs 75 to 78 of his judgment as follows:

"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.

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.'

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.

It follows that I reject Mr Clegg'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."

14. Mr Clegg, for Rochdale, makes what we regard as a valid criticism of this reasoning. He says that the judge did not spell out or explain the scope of the measured duty of care, and appears to have regarded Rochdale as being in breach simply by failing to acknowledge that they were under a duty of whatever scope. Inferentially, however, the judge, in finding that Rochdale were in breach of duty for failing to abate the nuisance, must be taken to have held that the duty extended to requiring Rochdale themselves to carry out the necessary relief works and to pay for them irrespective of financial contribution from Barratt who were primarily responsible. That this was the tenor of the judge's decision appears from the discussion with him at the hearing on 12^th October 2009 and from the fact that he ordered Rochdale to pay a substantial sum (£30,000) on account of damages.

Measured duty of care

15. The expression "measured duty of care" derives, we believe, from the opinion of the Privy Council given by Lord Wilberforce on appeal from the High Court of Australia in Goldman v Hargrave [1967] 1 AC 645. In that case, a Western Australian red gum tree on the appellant's land was struck by lightning and caught fire. The appellant had the tree cut down, but took no reasonable steps by spraying the fire with water to prevent it from spreading, believing that the fire would burn itself out. The fire spread to the respondent's property and caused damage. It was held that an occupier of land is under a general duty of care in relation to hazards, whether natural or man- made, occurring on his land to remove or reduce such hazards to his neighbour. The existence of the duty is based on the knowledge of the hazard, the ability to foresee the consequences of not checking or removing it and the ability to abate it by taking reasonable measures. Lord Wilberforce said at page 662, having referred to authorities and text books, that they endorsed the development towards a measured duty of care by occupiers to remove or reduce hazards to their neighbours. At page 663, Lord Wilberforce asked what was the standard of the effort required and what was the position as regards expenditure. The law must take account of the fact that the occupier has had the hazard thrust upon him through no seeking or fault of his own. He may be of modest means in relation to the magnitude of the hazard or as compared with those of his threatened neighbour. The standard ought to be what is reasonable to expect of him in his individual circumstances.
16. Goldman v Hargrave was applied in Leakey v National Trust [1980] 1 QB 485, where an unstable mound of earth on the defendant's land threatened the plaintiff's property. Megaw LJ said at page 526 that the defendants' duty was to do that which was reasonable for him to do. The criteria of reasonableness included what the particular defendant could be expected to do by having broad regard, where a serious expenditure of money is required, to his means. If a risk can be readily overcome or lessened, the defendant will be in breach of duty if he does nothing or too little. But if the only remedy is substantial and expensive works, it might well be that the landowner would discharge his duty by giving the neighbour permission to come onto his land to do agreed works at the neighbour's expense, or on the basis of a fair sharing of expense.
17. The concept of the measured duty extending to a duty to do or facilitate what is reasonable was considered and explained by the Court of Appeal in Holbeck Hall Hotel v Scarborough Borough Council [2000] QB 836. The plaintiffs' hotel had to be demolished when a massive land slip on the defendants' land caused loss of support. It was held that the owner or occupier of land owed a measured duty of care to prevent danger to a neighbour's land from lack of support due to natural causes, where the owner or occupier knew, or was presumed to know, of the defect or condition on his land giving rise to the danger, even though he had not created it, and where it was reasonably foreseeable that the defect or condition would, if it were not remedied, cause damage to the neighbour's land. The scope of the duty depended not only on the defendant's knowledge of the hazard, the ease and expense of abatement and his ability to abate it, but also on the extent to which the damage which in fact eventuated was foreseeable, and whether it was fair, just and reasonable in the circumstances to impose a duty. Justice did not require that the defendant should be held liable for damage which was vastly more extensive than that which was foreseeable. Stuart-Smith LJ derived the concept that the scope of the measured duty of care should have regard to what is fair, just and reasonable from Caparo Industries v Dickman [1990] 2 AC 605 (see page 862). In the case before the court, Stuart-Smith LJ did not consider that it was fair, just or reasonable to impose liability for damage which was greater in extent than anything that was foreseeable, especially where the defects existed as much on the plaintiffs' land as on the defendants'. He also said that the scope of the duty may be limited by other factors than foreseeability. It was not necessarily incumbent on someone in the defendants' position to carry out extensive and expensive remedial works to prevent the damage which they ought to have foreseen. The scope of the duty might be limited to warning neighbours of such risks as they were aware of or ought to have foreseen and sharing such information as they had acquired relating to it.
18. In our judgment, there is much force in Mr Clegg's submission on behalf of Rochdale that the judge failed properly to address the scope of any measured duty of care which Rochdale had in the circumstances of this case. He regarded it as extending to a duty themselves to construct, and presumably pay for, the necessary drainage ditches and catch pit on their retained land. This, according to the judge, was the missing piece in the jig saw. According to Mr Terry on behalf of the respondents in submission to this court, Rochdale's breach of duty consisted in their formal denial or failure to acknowledge a duty of the scope contended for in the letter of 14^th August 2001 and the Particulars of Claim, which asserted a duty requiring Rochdale to carry out and pay for relief works, which went beyond drainage and a catch pit on the retained land. He submitted that the judge was right to determine that Rochdale's denial, which he says they maintained into the trial, that they were under any duty of care required the judge to find in the respondents' favour by rejecting that extreme position, and that that is all the judge did. The judge did not proceed to quantify the extent of Rochdale's liability. We do not consider that this is all that the judge did, for the reasons which we have explained. He not only rejected a contention that Rochdale were under no duty. He found by clear inference that the scope of their duty positively extended to carrying out and paying for the relief scheme, or substantial parts of it. We note that the court had ordered on 4^th February 2008 that there should be a split trial with issues of liability being tried before quantum. That required more than a finding that Rochdale were in breach of a duty of undefined scope. The judge in fact held in substance that Rochdale were in breach of a duty of the scope contended for in the Particulars of Claim.
19. It is important in this context to bear in mind that whether a measured duty of care of the kind recognised in Goldman v Hargrave and later cases sounds in nuisance or negligence, it is a duty which is owed by one occupier of land to another. In each case, therefore it is necessary to consider what steps it is reasonable to expect the person on whose land the hazard has arisen to take in order to prevent damage to other land liable to be affected by it. Moreover, the duty to act, if it arises, arises as soon as the landowner becomes, or should have become, aware that the hazard has come into existence. In the present case that requires one to consider the relationship between Rochdale and the individual respondents at the time when it became apparent that flooding of their properties was likely to be a regular occurrence. The fact that the hazard was, and was known to have been, created by Barratt's blocking the ditch on land which it then occupied is one of the factors that has to be taken into account in deciding the scope of Rochdale's duty, but unless it was also clear that the respondents had a good cause of action against Barratt to recover the cost of any relief works, we do not think that it would have been possible to take that fact into account as being established when assessing the scope of Rochdale's duty at that time. It would, however, have been clear from 1998 or 1999 that Barratt's works were the cause of the flooding.
20. It is apparent from both Goldman v Hargrave and Leakey v National Trust that the scope of the duty of care will depend on the particular circumstances of the case. In Leakey v National Trust Megaw L.J. explained the position as follows:

"So here. The defendant's duty is to do that which it is reasonable for him to do. The criteria of reasonableness include, in respect of a duty of this nature, the factor of what the particular man - not the average man - can be expected to do, having regard, amongst other things, where a serious expenditure of money is required to eliminate or reduce the danger, to his means. Just as, where physical effort is required to avert an immediate danger, the defendant's age and physical condition may be relevant in deciding what is reasonable, so also logic and good sense require that, where the expenditure of money is required, the defendant's capacity to find the money is relevant. But this can only be in the way of a broad, and not a detailed, assessment; and, in arriving at a judgment on reasonableness, a similar broad assessment may be relevant in some cases as to the neighbour's capacity to protect himself from damage, whether by way of some form of barrier on his own land or by way of providing funds for expenditure on agreed works on the land of the defendant.

Take, by way of example, the hypothetical instance which I gave earlier: the landowner through whose land a stream flows. In rainy weather, it is known, the stream may flood and the flood may spread to the land of neighbours. If the risk is one which can readily be overcome or lessened - for example by reasonable steps on the part of the landowner to keep the stream free from blockage by flotsam or silt carried down, he will be in breach of duty if he does nothing or does too little. But if the only remedy is substantial and expensive works, then it might well be that the landowner would have discharged his duty by saying to his neighbours, who also know of the risk and who have asked him to do something about it, "You have my permission to come on to my land and to do agreed works at your expense"; or, it may be, "on the basis of a fair sharing of expense.""

21. Rochdale was not in the slightest degree responsible for the cause of the flooding but as a result of Barratt's actions the only way of removing the hazard which resulted from the natural accumulation of rainwater at the south eastern corner of the retained land was to construct a catch pit on the retained land and pipe the water to the sewer by a different route. The cost of that work was obviously likely to be considerable. This was not a case like Sedleigh-Denfield v O'Callaghan, therefore, where a simple and inexpensive act on the part of the occupier of the land on which the hazard arose could have abated the nuisance. Given the nature of the retained land, Rochdale could, in our view, reasonably have been expected to allow the respondents access to it free of charge to enable the catch pit to be constructed and could also be expected to provide reasonable assistance in providing, or assisting the respondents to obtain, any consents necessary to enable the drainage to be laid.
22. As a local authority Rochdale might be expected to have access to funds far in excess of those available to the individual respondents, but it is well known that most local authorities are under a degree of financial pressure. Moreover their resources are held for public purposes and are not generally available for the benefit of private citizens. The likelihood is that as householders the residents were insured against damage to their properties by flooding and when considering their ability to carry out and bear the cost of the work required to safeguard those properties we see no reason to ignore the possibility of their obtaining the necessary funds from their insurers (though it is not necessary to reach any final conclusion on the question in this case). Nor can one ignore the value of any rights they may have had to recover the cost from Barrett, insofar as the position can be ascertained with reasonable confidence. Some of these factors may have been difficult to assess at the time when Rochdale's duty first arose, but we are far from persuaded that it would have been right at any stage to impose on Rochdale a duty to undertake and pay for any part of the necessary work.
23. However, we are not presently concerned with the original scope of Rochdale's duty but with the current position. While the nuisance continued Rochdale was under a continuing duty of care, the scope of which may vary in accordance with any change in circumstances. By the time the judge had to reach a decision on the scope of Rochdale's present duty he was also in a position to determine that Barratt are liable to the householders in respect of the nuisance. Barratt has not sought to challenge that part of his judgment. Accordingly, the fact that they have an indisputable right to recover from Barratt the whole of the cost of the work is a powerful factor to take into account when determining the current scope of Rochdale's duty of care. In those circumstances we do not think that it would be fair, just or reasonable now to impose on Rochdale a duty to carry out and pay for any part of the necessary relief works.
24. In our judgment, therefore, the judge's analysis was erroneous and his conclusion cannot stand. He held that Rochdale were in breach of their measured duty of care for failing to abate the nuisance (paragraph 78), and in failing actively to cooperate in the solution (paragraph 77) by failing to construct the necessary drainage ditches and catch pit (paragraph 76). This materially overstated the scope of Rochdale's measured duty on the facts of this case.
25. We do not consider that Rochdale were under no duty. Speaking generally, they were plainly under a duty to cooperate in a solution which involved the construction of suitable drainage and a catch pit on their retained land. Whether the duty would extend to carrying out those works themselves or to carrying out the other work outside the retained land is something of an open question, which the facts found by the judge do not enable this court to determine. The duty did not extend, in our view, to obliging Rochdale to meet the whole cost of the relief works. It is plain from information we do have and to which we have referred that Rochdale did over the years cooperate in the matter of obtaining consents. It is far from clear whether a breach of duty for failing sufficiently to cooperate or facilitate could be established; nor whether that would sustain any material damages claim in circumstances in which Barratt were not accepting their liability to pay, and when this was the principal impediment to the carrying out of the works.
26. We note Mr Terry's submission that Rochdale did not adopt at trial an intermediate position accepting that they were under some duty and explaining its extent. We equally note that the claimants' overstated case did not contemplate an intermediate position whereby Rochdale had a duty of cooperation and facilitation not extending to their having to pay for the relief works. We note also that, in submitting that the appeal should be allowed and the claim against Rochdale dismissed, Mr Clegg upon instructions accepted that Rochdale would at least be obliged in that event to facilitate the carrying out of a reasonable relief scheme involving the construction at no expense to Rochdale of a catch pit on their retained land.
27. By their Amended Respondents' Notice, the respondents contend that Rochdale were liable for the concentrated flow of water on its land under the principle in Broder v Saillard (1875-6) LR 2 ChD 692 and Hurdman v N.E. Railway (1877-8) LR 3 CPD 168. This was argued before the judge, but he did not deal with it. It is submitted that the drainage ditch is an artificial construction which causes water to discharge in a concentrated flow in its south eastern corner. That is what causes the flooding onto the respondents' land. It is a nuisance and Rochdale are liable irrespective of fault. Mr Terry referred to and relied on paragraph 21-37 of Clerk & Lindsell on Torts 19^th Edition under the heading "construction work", to the effect that "if anyone by artificial erection on his own land causes water, even though arising from natural rainfall only, to pass into his neighbour's land, and thus substantially interferes with his enjoyment, he will be liable to an action at the suit of him who is so injured". It is, we think, stretching a point to attribute to Rochdale as an artificial erection the upper part of the drainage ditch which remained on their retained land. As Jonathan Parker LJ said in Green v Lord Somerleyton [2002] EWCA Civ 198 at paragraph 81, in the context of the English landscape a distinction between "natural" and "artificial" features is an inherently uncertain foundation on which to rest a decision as to the existence of liability in nuisance. However that may be, we are clear that it was not the construction of this part of the ditch which caused the flooding. The flooding was caused because Barratt blocked the lower part of the ditch and the culvert. We therefore reject the contention in the Amended Respondents' Notice.
28. For these reasons, we allow the appeal. We do not go further and formally dismiss the claim against Rochdale, because we consider that the respondents should retain the formal possibility of continuing the proceedings before the judge to obtain a determination, in accordance with this judgment, of the scope of Rochdale's measured duty of care, and of whether they were in breach of it. That would require factual findings which this court is unable to make. We strongly urge the parties, however, including Barratt, to reach a sensible accommodation in the light of this judgment; to avoid the need to return to the judge with the inevitable additional wasted expense that that would entail; and to enable the necessary relief works to take place during the summer school holidays of 2010.