DBF are a class act. We used them for the sale of a house. Professional, clear and responsive. Craig and Belinda who handled our case were great. Nothing was too much trouble, responsive and easy to get hold of.
Dave Weston
Eaton & Anor v Cheshire East Council [2026] EWHC 2423 (KB) https://www.iclr.co.uk/document/2026008961/2026ewhc2423kb_TNA/html
The background
The claimants, Mr Colin Eaton and Ms Barbara Thorneycroft, own The Cottage on The Green in Wrenbury, Cheshire, a highway for which Cheshire East Council is the highway authority. From around 2012 to late 2024, the property’s driveway and front garden repeatedly flooded with water running off the road. There had been no such problem before 2012, and no other property on the road was affected.
The property sits below road level. Downhill from it, the highway drain narrows from 150mm to 100mm, which the experts agreed was unusual, though tree roots and debris probably contributed. The council cleared drains from time to time, but flooding continued until the drain and gullies were jetted in late 2024 after which flooding stopped.
The county court decision
At trial in Chester County Court, Mr Recorder Shaw found that the garden flooded at least 20 times over 13 years, that the council knew throughout, and that its response had been, in virtually all respects, entirely reactive. There had been one CCTV survey and two instances of jetting, and routine gully maintenance had fallen from three times a year to once every three or four years.
The council pointed to its stretched resources, including 104,000 gullies. The judge accepted the pressures were real but found no defence, including under section 58 of the Highways Act 1980. He relied on counsel’s concession that gully maintenance and jetting before a flood, rather than after one, was cost neutral, because the council already had a permanent workforce. He awarded £25,000 for diminution in value and £8,750 to each claimant for loss of amenity.
The legal framework
Mansfield J referred to the decision in Vernon Knights Associates v Cornwall Council [2013] EWCA Civ 950. Sections 41 and 58 of the Highways Act 1980 exist to keep the highway safe for travellers and do not impose a duty to protect neighbouring owners from flooding. Any such duty arises at common law, where nuisance liability is effectively the same as liability in negligence.
Jackson LJ held that a landowner owes a “measured duty” to take reasonable steps to prevent natural occurrences on its land damaging neighbours. The court asks what is fair, just and reasonable, considering the foreseeable risk, preventive measures, cost and each side’s resources. For a public authority, competing demands on its resources must also be weighed. In Lambert v Barratt Homes [2010] EWCA Civ 681, for example, it was unreasonable to expect a council to fund substantial works. This claim differed as it concerned maintenance, not major engineering.
The appeal on liability
Highway water or surface water? The council argued its liability extended only to water falling on the road, not water arriving from elsewhere. In Vernon Knights water from sources beyond the council’s control was no defence to liability and the suggestion that rain falling on the claimants’ own land caused the flooding was dismissed as fanciful.
The standard of duty. The council said the judge had effectively required it to jet these drains ahead of every other gully whenever rain was forecast. Mansfield J had some reservation about a duty to monitor forecasts and check all vulnerable gullies, but said whether it is reasonable to check known hotspots in advance is a matter of evidence, not principle. More importantly, the judge’s remarks on forecasting were not his essential reasoning. That was that, facing a risk known for over a decade, the council had failed to remedy it or show a reasonable system, routine or risk-based, for dealing with it. It had staff and resources, which it deployed reactively and, until 2024, ineffectively. The multifactorial assessment is primarily for the trial judge, and there was no error of principle.
Other challenges. Disputes over earlier gully maintenance was immaterial. Whatever the council did, it took no effective steps until late 2024. The finding that jetting solved the problem was supported by the joint expert report.
Quantum
The £25,000 diminution award reflected the judge’s own assessment that a history of flooding would need to be disclosed on sale and would affect the price, which Mansfield J said stood to reason. The £17,500 amenity award stood for both claimants.
Observations
Reactive systems carry risk. There is no duty to pre-clear every gully when rain is forecast, but where an authority knows of a persistent hotspot, relying on post-event callouts without a reasoned approach to prevention is hard to defend. Evidence of what the authority did, why, and how it prioritised is likely to be decisive.
Cost neutrality matters. The claimants did not need to show that the council should have spent capital on engineering works. Because the preventive steps involved redeploying an existing workforce, the resources argument carried less weight. A resources defence will struggle where the case concerns maintenance and sequencing rather than new infrastructure.
The source of the water is no shortcut. Defendants cannot avoid liability simply by showing the water came from third-party land.
Damages. Where damages are awarded for loss of capital value, a separate award for distress and loss of amenity may not be appropriate, a point not argued at trial or on appeal.
Conclusion
Eaton v Cheshire East Council confirms that the Vernon Knights test is a genuine balancing exercise. Resource pressures are weighed but are not a trump card, particularly where preventive steps are modest and within an authority’s existing operations. Landowners with a long history of flooding should note that a well-documented record of complaints and incidents can support a nuisance claim; authorities should ensure maintenance of known problem locations is planned and recorded.
