Eaton v Cheshire East Council: council's appeal against flooding nuisance verdict dismissed

The High Court has dismissed Cheshire East Council's appeal against a finding of private nuisance and an award of £42,500 in damages to a couple whose property in Wrenbury, Cheshire, flooded repeatedly over more than a decade due to inadequate maintenance of a highway drainage system.

The case, Colin Eaton and Barbara Thorneycroft v Cheshire East Council [2026] EWHC 2423 (KB), was heard by Mr Justice Mansfield on 26 June 2026, with judgement handed down on 22 September 2026. It arose from a trial before Mr Recorder Shaw in the County Court at Chester in September 2025, in which the claimants succeeded in establishing that water running off a nearby highway had flooded their driveway and garden on at least twenty occasions between 2012 and late 2024, despite repeated complaints to the council over the years.

The trial judge had found that the council's response to the known problem was almost entirely reactive, that gully maintenance had been reduced from three visits annually to once every three or four years, and that effective jetting works carried out in November 2024 finally resolved the flooding. He rejected the council's defence under section 58 of the Highways Act 1980, holding that proactive maintenance would have been cost neutral given the council's existing workforce, and awarded £25,000 for diminution in the property's value and £8,750 each to the claimants for loss of amenity.

The council appealed on multiple grounds, including procedural unfairness, factual error, and an argument that the recorder had imposed an unreasonably high standard of care by effectively requiring proactive jetting ahead of the council's 104,000 other gullies countywide. Applying the well established principle from Volpi v Volpi that appellate courts should not disturb findings of fact absent a conclusion that no reasonable judge could have reached them, Mr Justice Mansfield rejected each procedural complaint in turn, including criticism of an unaccompanied site visit conducted by the recorder before trial, which he found gave rise to no unfairness given the straightforward and undisputed layout of the site.

On liability, the judge held that the recorder had correctly applied the multi-factorial test from Vernon Knights Associates v Cornwall Council, weighing the foreseeable risk, available preventive measures, their cost, and the council's competing demands on resources. He rejected the council's argument that liability turned on distinguishing highway water from surface water that had run onto the road from elsewhere, finding, consistent with Vernon Knights, that the source of the water made no difference to the scope of duty. The recorder's finding that the 2024 jetting works had resolved the flooding was supported by joint expert evidence and was not perverse.

On quantum, the judge found no error in admitting a valuation report despite the absence of formal permission for expert evidence, noting the council had engaged with its substance for months before trial without objecting to its admissibility. The £25,000 diminution award, though unsupported by precise evidence, reflected a reasonable assessment that the flooding history would need to be disclosed on any future sale. An award for loss of amenity exceeding the pleaded figure by £2,300 was, while procedurally imperfect for want of prior notice to the parties, too modest an excess to render the outcome unjust.

The appeal was dismissed in its entirety.