The recent case of Arscott v the Coal Authority and Another has confirmed that development leading to consequential flooding of other land does not represent a nuisance.

The action arose from a claim by 32 persons who had suffered property damage as a result of flooding after the National Coal Board and the local authority had co-operated in a scheme to raise the level of a recreation area.

When the local river burst its banks in 1998, where previously it flooded the recreation area, the raised level caused the water to enter the claimant’s properties. They sought damages on account of a nuisance caused by the Coal Authority and the county borough council.

The judge concluded that an occupier is not liable for nuisance if damage is caused to someone else’s property. In reaching this decision, he relied on the earlier cases of Hunter v Canary Wharf Limited [1997] and Marcic v Thames Water [2002].

The case is a useful guide against the background of an increase in the incidence of flooding where it is likely that more claims will develop, but it shouldn’t be assumed that a claim would automatically fail.

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