“Fritton Lake, also known as Fritton Decoy, is one of the ‘broads’ which form so distinctive a feature of the landscape of eastern Norfolk and north east Suffolk. These areas of water are all man-made features, mainly the consequence of medieval peat-digging. .... Fritton [Lake] reach[es] a depth of nearly six metres in places. In appearance it is different from most other broads, in that it is surrounded by well-wooded and steeply-rising land.... By the nineteenth century ... the lake had acquired other functions. It was already used for pleasure-boats and was exploited as a water source by the Lowestoft Gas and Water Company. .... In or around the 1950’s a number of weirs were constructed across the three main outfalls at the lake’s western end. These are very simple structures – no more than several wooden planks laid one above the other – which serve to maintain the water at around 0.6 metres above natural maximum level. In times of heavy rain the water runs over and around these obstacles. .... [T]he installation of these simple weirs did not impound the water to any very significant extent: they are not associated with any form of artificial dam of embankment. Their erection did not materially change the size of shape of the lake ....”
“Fritton Lake is artificial, in the sense that it is man-made. But it is not in any meaningful sense a ‘reservoir’ because it was not created to hold water but was instead, like a flooded gravel pit, an unintended side-effect of extraction. It is true that water has been regularly taken from the lake by the water company [a matter to which further reference is made below], and is still being extracted. It is also true that in the 1950s the level of water within the lake was artificially raised by c. 0.6 of a metre by the construction of weirs at the main western outfalls. But no artificial dams or embankments were created and the weirs simply maintain water within the lake at times of reduced inward flow, rather than control outflow at times of spate. .... I would emphasise that neither the creation of Fritton Lake in medieval times, nor the construction of weirs at its western end in the twentieth century, made any material difference to the line of natural drainage from the valley in which the lake lies, although these changes will certainly have reduced the amount of water flowing along the line of natural drainage at certain times of the year.”
“This [i.e. the Blocka Run] was always more than a mere drainage ditch. It was a significant watercourse, carrying water from Fritton Lake to the river Waveney. .... Streams draining off the uplands, and across the marshes, always had sluices where they met the principal rivers, simple ‘flap sluices’ which enabled them to discharge at low tide, but which were held shut by the pressure of water at high tide. .... There is no real doubt that there had [sic] been a sluice here [i.e. where the Blocka Run met the river Waveney] since medieval times, preventing the penetration of tidal water up the [Blocka Run]. .... There is no doubt that the line of this watercourse has remained largely unchanged since early medieval times, for it is followed for its entire length by the parish boundary between Herringfleet and Fritton. .... The origins of the [Blocka Run] are not entirely clear. It is possible that it represents an entirely artificial channel, constructed when the marshes were drained as a replacement for this natural watercourse. On analogy with the situation elsewhere in the local marshes, however, it is more likely that it follows, more or less, the line of the natural watercourse, and in effect represents that watercourse, altered and improved to some extent at the time of reclamation. .... The [Blocka Run] thus represents either the original line of natural drainage from the valley in which Fritton Lake is situated; or an artificial watercourse of extreme antiquity...”
“.... subjected [sic] to and with the benefit of the provisions contained in a certain Deed of Covenant as to draining marshes of even date herewith executed by the parties hereto.”
“... work the same whenever requisite for the purpose of draining the said lands and effectually drain the same PROVIDED ALWAYS that the said Lord Somerleyton his heirs and assigns owner or owners for the time being of the said [pump] shall not be liable for any flooding of the said hereditaments or any damage thereto caused or necessitated by extraordinary floods or by the stoppage of the [pump] unless such stoppage shall occur by reason of his or their wilful neglect or default.”
“.... at his or their own cost [to] stop up rat and mole holes and other holes in the river and marsh walls [i.e. the embankment] and banks upon [Priory Marshes] and also keep the said walls and banks in good and substantial repair and also cleanse and scour and keep cleansed and open and in proper order the [Blocka Run] the Mill Dyke and the Land Spring Dyke ....”
“.... whenever necessary for the purpose of drawing water from the marsh dykes and draining [Priory Marshes] and [Scale Marshes]”, and to pay for the electricity used by the pump. He also covenanted to be responsible for all repairs to the pump other than capital replacements. Covenant (d) by Mr Henry is in the following terms: “Draw and keep clean the Main Drains [an undefined expression] running through the said Marshes .... so that the water level can if necessary be reduced to within six inches from the lowest level of the culvert under the [A143] and also that he will draw and keep clean and clear his half of the [Blocka Run] so as to prevent flooding of [Priory Marshes or Scale Marshes] Provided Always that Mr Henry shall not be held liable if such flooding is caused by the other part of the [Blocka Run] not having been kept clean and clear.”
“PROVIDED ALWAYS and it is hereby agreed that neither party shall be liable to the other party in respect of flooding arising from abnormal circumstances such as a breach in the River Wall or extraordinary rainfalls or the stoppage of the working of the [pump] caused otherwise than by the neglect or fault of the parties hereto .... PROVIDED ALSO that should either party consider that owing to factors arising during the passage of time the terms of this Deed are unfair and should be varied then in default of any agreement thereon between the parties hereto or in the case of any dispute arising out of the terms of this Deed or the performance thereof or as to the rights liabilities or duties of the parties hereto or otherwise .... touching the subject matter hereof such dispute shall be referred to a single arbitrator to be agreed upon by the parties hereto and in accordance and subject to the provisions of the Arbitration Acts 1889-1934 or any statutory modification thereof for the time being in force and in making his award by way of fixing new terms hereof or upon any such dispute such arbitrator shall consider among other things both the terms of this Deed and any measures necessary to ensure the proper and adequate drainage of both [Priory Marshes] and [Scale Marshes].”
“Up until this time, it is thought that [the] Blocka Run was, in the main, self-cleansing under the natural flow of water through it but since the 1950s and the erection of the dams at Fritton Lake, the flow has decreased and this has had the effect of reducing the velocity of water passing through the dyke which has slowly silted up. The principle of the self-cleansing effects of [the] Blocka Run led to a situation where maintenance of the dyke was believed by Lord Somerleyton not to be required and the Blocka Run fell slowly into disrepair. The flow of water into the River Waveney from the Blocka Run was previously controlled by a tidal flap valve maintained by a marshman, but this has silted up and is no longer usable without substantial repair/replacement, for which working in tidal waters would be necessary. Gales over the last 40 years have resulted in trees, bushes, etc. falling into and obstructing the dyke, which now merely serves to act as a storage channel. It holds water at a high level, flooding the [Carr Land] and the boggy peatland surrounding the dams at the western end of Fritton Lake .... [The] Blocka Run and its sluice are effectively irrecoverable without considerable repairs and expense. .... repairs would include substantial tree clearance, regrading and desilting and replacement of the outfall in tidal waters. [The] Blocka Run no longer forms an integral part of the drainage system and merely serves as an amenity to the land immediately to the north.”
“How else could they be drained? How can the working of the [pump] not be “requisite” to draining the area of such water as is naturally on it, irrespective of any potential diversion if, as a matter of fact, that potential is not realised [a reference to the unusable Blocka Run]? My analysis of the evidence as to the drainage system shows that but for the artificial embankment of the [Blocka] Run the water naturally in the marshes would include water draining from the upper catchment. [Priory Marshes] is in exactly the same position as regards water from the River Waveney which but for the river walls would likewise naturally be found on the marsh as a result of incursions from the River Waveney. The [1921 Drainage Deed] therefore contains a covenant by Mr Mallett to maintain the river walls. He also obliged himself to in terms similar to those repeated in the 1958 Drainage Deed to keep the [Blocka Run] cleansed and in proper order. No such obligation, however, was imposed on the vendor or the owner of [Scale Marshes] although works on [Scale Marshes] could maintain the embankments which separated the drainage systems. I accept that the owner of [Scale Marshes] would not be entitled to introduce water into the marsh dykes, for example, by diverting either its natural flow or an artificial watercourse. However, in the absence of any obligation, express or implied, to maintain the artificial watercourse [i.e. the Blocka Run] I see no reason why the implied easement of drainage, which it is agreed must necessarily be implied, should not apply to whatever water arrived naturally upon [Scale Marshes]. For these reasons, I conclude that the effect of the 1921 Conveyance is that [Scale Marshes] does have attached to it an easement of drainage into the dykes on the claimant’s land including the Mill Dyke of such water as arrives on [Scale Marshes] naturally, including any outflow from the lake.”
“The natural flow is not, I think, therefore, to be regarded as a hazard which would bring into play the duty of care held to arise in Leakey’s case.”
“Although in 1958 the parties no doubt expected the upper catchment to continue to drain at least predominantly through the artificial channel of the [Blocka] Run, they were clearly aware of the propensity of the marshes to flood and the necessity to drain [Scale Marshes] into [Priory Marshes] and thus to pump water into the river. They made what seemed to the then parties a reasonable apportionment of responsibility. The owner of [Scale Marshes] was to provide the pump and replace it if need be. The owner of [Priory Marshes] was to operate the pump. If circumstances changed, then the procedure for reconsidering responsibility was set out. In my judgment, the owners of [Scale Marshes] are entitled to rely on this agreement [i.e. the 1958 Drainage Deed] as a discharge of their duty of care if it arose, notwithstanding the easement of drainage which I have held to exist.”
“The terms and timing of such offer were vague in the extreme. There may be terms which if formally and clearly proposed would be unreasonable for the defendant[s] to refuse. Any such proposal is, however, in my judgment, best considered in the course of an application to vary the terms of the 1958 Drainage Deed on the ground that ‘owing to factors arising during the passage of time it has become unfair’.”
“.... the nature and extent of the duty is explained in the judgment in Goldman v. Hargrave [[1967] 1 AC 645 ] at pp.663, 664. The duty is a duty to do that which is reasonable in all the circumstances.”
“If reasonableness between neighbours is the key to the solution of problems in this field, it cannot be right to visit the authority or owner responsible for a tree with a large bill for underpinning without giving them notice of the damage and the opportunity of avoiding further damage by removal of the tree.”
“In my view, the basis for the liability of an occupier for a nuisance on his land is not his occupation as such. Rather, it is that, by virtue of his occupation, an occupier usually has it in his power to take the measures that are necessary to prevent or eliminate the nuisance. He has sufficient control over the hazard which constitutes the nuisance for it to be reasonable to make him liable for the foreseeable consequences of his failure to exercise that control so as to remove the hazard.”
“... for the proposition that where the riparian owner of land on a non-tidal river erects a wall for his own purposes, for the protection of his own land, a person owning land behind him is entitled to require that he shall never thereafter remove it, or any part of it.”
“The decision of this court in Thomas .... is not to be explained on the basis of some special principle of “naturalness” applicable to the digging of minerals on one’s own land. That was a case of flooding from a river. But the decision itself, it appears to me, can be justified without any inconsistency with the Goldman v. Hargrave .... development of the law. There was nothing whatever which could be described as unreasonable, bearing in mind that an occasional flood in the river was foreseeable, in the defendants taking down an old protective wall on their own land in order to rebuild it. The fact that a flood happened to come before the wall was completely rebuilt could not, on any view, of itself give rise to liability on the defendants. But the potential liability of an owner or occupier to his neighbours for the overflow of a stream from his land on to their land does, indeed, give rise to possible injustice. To this I shall return later.”
“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 do agreed works at your expense”; or, it may be, “on the basis of a fair sharing of expense”
“In the present case, as we have said, the natural flow of surface water was not obstructed by the filling in of the long drain, for the natural flow was in the opposite direction. In such a case, it is difficult to see why the respondent should not have been free to block the artificial drain on his own land, even if to do that was not necessary for the enjoyment of his own land. Another decision which throws some light on the present case is that of the Court of Appeal in [Thomas]. In that case the appellants had built a wall along the side of a river to protect their own lands and an adjacent highway from flooding. In the course of building alterations they pulled down the wall, leaving gaps which they intended to fill by a new building, but the river suddenly rose and the respondents’ land was flooded. It was held that the appellants were not liable either in nuisance or negligence. Sir Wilfred Greene MR who delivered the judgment of the Court of Appeal, said at p 389: “If this wall had been erected by the freeholder and taken down by the freeholder the next day, or a week, or a year afterwards, with the result that the floodwater took the course which it would have taken if the wall had never been there, I cannot see, on any principle known to me, that the respondents would have been entitled to complain. If it were not, so a person in putting up a defensive wall on his own land, would act at his peril, because by the mere fact of erecting it he would be conferring on his neighbours, or persons in the neighbourhood, rights to insist that he should never remove the wall or building he had put up.”
“And that this Conveyance is subjected [sic] to and with the benefit of the provisions contained in a certain Deed of Covenant as to draining marshes of even date herewith executed by the parties hereto ....”
“.... whenever requisite for the purpose of draining the said lands [i.e. Scale Marshes and Priory Marshes] and effectually drain the same.”