Court considers scope of local authority's duties as roads authority and floods authority.

11 July 2007

Viewpoint Housing Association Ltd v The City of Edinburgh Council

In this case, the pursuers sought damages from the defenders as a result of flood damage to their property. They alleged that the defenders had failed in their duties at common-law, in their capacity as roads authority, in that they had not taken action over a number of years to improve the capacity of a culvert for which they were said to be responsible. A case was also made against the defenders in nuisance.

The defenders sought to challenge the relevancy of the pursuers' case. It was argued that the pursuers failed to relevantly bring themselves within the scope of the tripartite test which is to be met in order for a duty to be imposed. In particular, it was argued that the defenders' duties as roads authorities could not extend to those who were not road users but, rather, were heritable proprietors of nearby properties. It was further argued that it was appropriate to consider the defenders' wider duties in respect of floods, under the Flood Prevention (Scotland) Act 1961, and the effect which the imposition of a duty on a local authority as roads authority would have on the exercise of duties in their capacity as floods authority.

The Court found that the extent of the defenders' duties could not be determined on the pleadings alone. The question of proximity and whether the imposition of a duty would be fair, just and reasonable, might depend on the particular circumstances. A proof before answer was accordingly allowed.

Kenny McBrearty of Axiom appeared for the defenders

http://www.scotcourts.gov.uk/opinions/2007CSOH114.html

Lord Emslie, 5th July 2007