It would be easy to assume that if your neighbour’s land started to subside, threatening to take your house down with it, that it would be a straightforward matter to demand that they prevent the subsidence and save your home. In reality, the law in this area is far from straightforward and has taken many years to reach the position it has today.
This duty has advanced in leaps and bounds over the last century following a number of high-profile cases which showed the flaws in the previous law.
In Sedleigh-Denfield (1940) the Court departed from the historic position, concluding that: “It is clear that the occupier may be liable [for the consequences of a natural nuisance] though he (1) is wholly blameless, (2) is not only ignorant of the existence of the nuisance but also without means of detecting it, and (3) entered into occupation after the nuisance had come into effect”.
In Leslie McDonald Leakey (and others) -v- The National Trust for Places of Historic Interest of National Beauty (1979) the Court needed to decide whether the law in Sedleigh-Denfield applied only to artificial works affecting natural use of the land or whether the principle applied to any nuisance regardless of its origin. The Court concluded that “a duty will arise, whether the causative agent of the defect is man or nature" and that the duty required “that which is reasonable for him to do”, considering the means available to the owner of the land from which the nuisance emanates.
In Holbeck Hall Hotel Ltd v Scarborough Borough Council (2000) the Court considered the extent of the measured duty of a landowner who owned an undercliff to the hotel owner at the top of the cliff in some detail. Stuart-Smith LJ concluded that the measured duty did not extend to the circumstances of the case. This case established that liability would only arise if the landowner responsible for the nuisance had knowledge of that nuisance, a duty to abate it and was negligent in failing to do so. The landowner would only, therefore, be liable if the damage was reasonably foreseeable.
Vernon Knight Associates -v- Cornwall Council – Court of Appeal (2013) helpfully summarises the current legal position on natural nuisance. The Court, having considered the case law over the last 100 years, established the following principles which determine a landowner’s duty when considering natural nuisances:
- 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.
- 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.
- 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.
Landowners are now required to take positive steps to intervene when natural nuisances originating from their land where they know (or should have known) of the hazard and been aware of the harm it could cause.