NUISANCE, THE COMMON ENEMY RULE AND REASONABLE FORESEEABILITY

Arscott v The Coal Authority [2004] EWCA Civ 892 (unreported, 13 July 2004)

The Court of Appeal in Arscott v The Coal Authority [2004] EWCA Civ 892 (unreported, 13 July 2004) has affirmed that foreseeability of damage is a crucial ingredient of liability in nuisance. It also affirmed that the defence of ‘common enemy’ remains part of the common law and that its existence has not been undermined by the enactment of the Human Rights Act 1998. The defence entitles an owner or occupier to use or develop his land so as to prevent flood waters coming on to his land, but it does not entitle an owner or occupier to export the flood waters on to the land of his neighbour once they have entered his own land.