Your Home Flooded? Look at the Drain — It Could Decide Whether FHDC or KCC Is Liable

Autumn is already here. Leaves are falling, the days are shortening and winter is approaching — which means the question of whether Folkestone & Hythe’s gullies and drains are being properly cleared is about to become considerably more important.

And this isn’t simply about the next storm. Climate change is altering the conditions these drainage systems have to cope with. The Met Office projects that UK winters will become warmer and wetter, while heavy rainfall is expected to become more intense. Individual winters will still vary, but the long-term direction is towards more rain falling during the season when leaves, debris and saturated ground can already make surface-water flooding harder to manage.

So, when the next spell of heavy rain sends water racing along a Folkestone & Hythe road and towards a home or business, there is something worth doing before anybody arrives with a broom, shovel or jetter.

Photograph the roadside gully.

What is sitting on top of that iron grating — or what is failing underneath it — could help determine which council has legal questions to answer. As a practical starting point, Folkestone & Hythe District Council has statutory highway-cleansing responsibilities and its Veolia contract expressly requires gully gratings to be kept clear; Kent County Council, as highway authority, maintains adopted-highway drainage. Recent court rulings show repeated, known flooding caused by drainage failures can amount to private nuisance. Liability, however, is never automatic.

Start at the surface.

Section 86 of the Environmental Protection Act 1990 makes the district council responsible, for the purposes of Part IV, for relevant highways outside Greater London, subject to any statutory transfer order. Section 89 requires them, so far as practicable, to be kept clear of litter and refuse and clean. DEFRA’s 2026 Code says those duties aren’t transferable: a council can employ a contractor, but the duty body remains responsible for meeting the statutory standard.

FHDC did exactly that. Clause 3.14.1 of its Veolia contract requires the contractor to ensure that “all gulley gratings” on public highways and car parks aren’t blocked by refuse, fallen leaves, weeds, blossom “or any other matter” as part of normal cleansing.

So arguing about whether wet leaves technically count as “litter” only gets you so far. The Act has no comprehensive definition. The statutory Code separately treats mud, grit, rotted leaf residue and fragments of twigs as “detritus” and expressly warns against allowing material to accumulate so that it blocks gullies and causes flooding. FHDC’s contract is wider still because it names leaves and other matter directly.

Private nuisance is a civil wrong involving an unlawful interference with a person’s use or enjoyment of land, normally brought by someone with a legal interest in that land. In flooding cases, it can include water being allowed to escape onto neighbouring property where the defendant is legally responsible for the source or continuation of the problem and has failed to take reasonable steps to prevent or stop it. The Supreme Court describes the tort, in general terms, as arising where an activity or state of affairs for which a defendant is responsible unduly interferes with the use and enjoyment of the claimant’s land.

Could a failure there lead to a private nuisance claim against FHDC? Potentially, yes — but not simply because Veolia breached its contract. The Supreme Court restated in Manchester Ship Canal v United Utilities in 2024 that nuisance concerns an activity or state of affairs for which the defendant is legally responsible. Where the defendant didn’t create it, a claimant must establish actual or constructive knowledge of the cause and failure to take reasonable steps to end it.

That means a flooded landowner could seek to bring a nuisance claim against FHDC where a surface blockage within its cleansing function materially caused water to invade their land, particularly after previous reports gave the council knowledge and time to act. But FHDC’s section 89 duty and Veolia contract would be evidence, not an automatic ticket to damages: the claimant would still have to establish that FHDC was legally responsible for continuing the nuisance, prove causation and satisfy the ordinary requirements of private nuisance. We have found no reported appellate judgment deciding that exact FHDC-style split of functions.

There is, however, a remarkably close ancestor. In Sedleigh-Denfield v O’Callaghan [1940], a drainage pipe became choked with leaves during heavy rain and flooded neighbouring land. The defendants hadn’t installed the pipe, but were liable because they knew, or should have known, of the hazardous state of affairs and failed to take reasonable steps. The Supreme Court reaffirmed that principle in 2024.

Separately, section 91 gives a person aggrieved by litter or want of highway cleanliness a route to seek a litter abatement order in the magistrates’ court, after at least five days’ written notice.

Now look below the grating.

Clause 3.14.2 says cleaning and flushing the inside of highway gullies isn’t part of Veolia’s contract. If the grating has been cleared but the gully remains blocked or needs repair, Veolia must record and report the location and problem through the contract-management system. If the surface is clear and evidence points instead to an adopted-highway drain, pipe or culvert that is blocked, defective or inadequately maintained, the legal focus shifts towards KCC.

Last week’s High Court judgment in Eaton & Thorneycroft v Cheshire East Council shows why. Their driveway and garden flooded at least 20 times over 13 years. The council knew. Its response was largely reactive. After the drain and gullies were jetted in late 2024, the flooding stopped despite later heavy rain. Mr Justice Mansfield dismissed the council’s appeal against liability in private nuisance and £42,500 damages.

Eaton builds on Vernon Knight Associates v Cornwall Council. There, leaves and debris blocked highway gullies at a known flood hotspot. The Court of Appeal upheld liability and described a “measured duty”: what is reasonable depends on foreseeable risk, available preventative measures, their cost and the public authority’s competing demands. It stressed that a council cannot be everywhere — but on those facts reasonable steps to keep an existing drainage installation working were required.

Kent has already lost on the same broad principle. In Bybrook Barn v Kent County Council [2000], a highway culvert at Ashford had become inadequate. KCC knew about the problem and the Court of Appeal held it liable in nuisance when reasonable remedial work was available.

None of this means every flood creates a claim against either council. Water may come from a sewer, private drain, watercourse or another system. The real questions are brutally factual: what caused this flood; who was legally responsible for that cause; what did they know; and what could reasonably have been done?

Which is why evidence matters more than argument in the rain.

Before a broom, jetter or receding water destroys the scene, photograph and video the grating, any leaves or debris, the direction of flow and the water crossing onto your land. Record the time and date. Keep previous complaints, council reference numbers, emails, witness details, damage photographs, invoices and insurance correspondence. Report a surface blockage to FHDC; report a clear grating that won’t drain to KCC. If both appear involved, report both. The repeated complaints and maintenance history were central evidence in Eaton.

The iron grating may look like the least important thing in a flood.

Legally, it could be where the story starts.

The Shepway Vox Team are not lawyers. Nothing in this article should be taken as legal advice, and the law can turn on the particular facts of each case. Anyone affected by flooding, considering a claim, or unsure of their legal position should seek advice from a suitably qualified solicitor or other appropriate legal professional.

The Shepway Vox Team

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