High Court rules on council’s appeal over repeated flooding from a village road

The High Court has considered a council's appeal against a finding that it was liable in nuisance for repeated flooding of a home's driveway and garden from a public road, rejecting its procedural complaints.

On 22 September 2026 Mr Justice Mansfield gave judgment in the High Court, King's Bench Division, in Colin Eaton & Anor v Cheshire East Council [2026] EWHC 2423 (KB). It was an appeal from the County Court at Chester (Mr Recorder Shaw).

Background

The claimants own a house in Wrenbury, Cheshire, on a road maintainable at public expense, for which the council is the highway authority. On many occasions from around 2012 to late 2024 their front driveway and garden flooded with water running off the road. The house itself did not flood. There had been no such flooding in the years before 2012, and no other property on the road had the problem. The claimants complained many times. The council investigated and took some steps to clear the drains, but the problem was not remedied until late 2024.

The claimants sued in private nuisance. After a trial in September 2025, the Recorder found the council liable and awarded £42,500: £25,000 for loss of value of the property and £8,750 for each claimant for loss of amenity.

The question

The council appealed on liability and on the amount. It argued that the Recorder had made errors of law and of fact, that the trial was procedurally unfair, and that the duty he imposed was unreasonable given its limited resources. It pointed to 104,000 gullies in its area and thousands of properties at risk of flooding.

The court's approach

Mansfield J said an appeal of this kind is a review, not a rehearing. An appeal court should not interfere with a trial judge's conclusions on primary facts unless satisfied that the judge was plainly wrong. On the law of nuisance, he applied Vernon Knights Associates v Cornwall Council [2013] EWCA Civ 950. It describes a measured duty to take reasonable steps, judged by what is fair, just and reasonable between the parties, having regard to the risk, the preventive measures, their cost and the competing demands on a public authority's resources.

The Recorder had found that the council's response was almost entirely reactive, that gully maintenance had been reduced from three times a year to once every three or four years, and that jetting in November 2024 was effective, with no flooding after it. He also noted that clearing gullies before a flood rather than after it was cost neutral, using the council's existing workforce.

Procedural complaints

Mansfield J found no significant procedural unfairness, either individually or taken together. On the Recorder's unaccompanied site visit, he said it would in many cases be unwise for a judge to visit without the parties, but here the layout was not in dispute and there was no suggestion of tests being carried out. He found no error in declining a second visit, which was a case management matter, or in allowing a late defence witness statement, allowing the schedule of loss to be signed on the day, or letting one claimant adopt a joint witness statement.

Sources

• Colin Eaton & Anor v Cheshire East Council [2026] EWHC 2423 (KB), High Court (King's Bench Division), 22 September 2026: https://caselaw.nationalarchives.gov.uk/ewhc/kb/2026/2423