The ECHR has recently delivered its judgement in Kolyadenko v Russia , which (apart from demonstrating the reach of the ECHR jurisdiction to the remote corners of Asia) is a useful case applying principles we would recognise under the rule in Rylands v Fletcher.
The 6 applicants in this case are residents of Vladivostok, who brought proceedings against the Municipal Authority and the Water Company alleging responsibility for damage caused to their homes and belongings in a flood which occurred on 7th August 2001.
The flood started with the release of excess water from the nearby dam following a period of exceptionally heavy rainfall. This excess water travelled through the channels and watercourses of the city and owing to the build up of household waste, vehicle parts, vegetation and other debris which the Authority had allowed to accumulate in the channel, it broke its banks and caused extensive damage to the adjoining properties.
Two years prior to the flood, the head of the Water Company had warned the Authority that the accumulation of waste was reaching critical levels within the channel and that urgent measures were needed to prevent risk to the nearby residents. This was the first of a number of warnings given to the Authority. The Authority responded by removing a quantity of the waste and vegetation but a significant amount was allowed to remain in the channel.
Criminal investigations were undertaken against the Water Company (in respect of the release of water from the dam) and the Authority (in respect of the development on the flood plain) but, despite various expert reports stating that the accumulation of debris was a significant reason for the flood, no proceedings were brought.
The Applicants brought civil proceedings against the Authority and the Company under the relevant Statute and on appeal, the Court accepted the Defendants’ assertion (based on a report which was not produced in the ECHR application) that the flood would have occurred anyway, with or without the removal of the debris from the channel. As far as the Court was concerned, the real cause of the flood was the exceptional level of rainfall, for which the State could not be held to blame.
The Applicants therefore took their case to the ECHR, relying on breaches of Article 1, Article 2 (right to life), Article 8 and Article 13 (right to an effective remedy). Firstly the State sought to argue that as nobody had lost their life, Art 2 was not engaged. The Court rejected this argument and held that it was sufficient that the Applicants were in genuine fear for their lives in the flood. Article 2 created a positive obligation on the State to take appropriate steps to safeguard the lives of those within its jurisdiction and it was engaged.
The Court was critical not only of the way the Authorities had failed to respond adequately to the requests to clear the channel but also of the failure to put in place any early warning or flood defence mechanisms. The Court also criticised the fact that residential units had been built within the boundaries of the flood plain and that construction occurred even after the 2001 flood. The Court’s position is summarised in para. 185:
In the light of the foregoing, the Court finds that the Government’s responsibility was engaged for the following reasons. Firstly, the authorities failed to establish a clear legislative and administrative framework to enable them effectively to assess the risks inherent in the operation of the Pionerskoye reservoir and to implement town planning policies in the vicinity of the reservoir in compliance with the relevant technical standards. Secondly, there was no coherent supervisory system to encourage those responsible to take steps to ensure adequate protection of the population living in the area, and in particular to keep the Pionerskaya river channel clear enough to cope with urgent releases of water from the reservoir, to set in place an emergency warning system there, and to inform the local population of the potential risks linked to the operation of the reservoir. Lastly, it has not been established that there was sufficient coordination and cooperation between the various administrative authorities to ensure that the risks brought to their attention did not become so serious as to endanger human lives. Moreover, the authorities remained inactive even after the flood of 7 August 2001, with the result that the risk to the lives of those living near the Pionerskoye reservoir appears to persist to this day.
The Court held that there were breaches of Articles 1, 2 and 8 (there was no interference but there was a breach of the positive obligation to secure the Applicants’ right to respect for their homes). In relation to procedural safeguards, the Court held that there had been a breach as far as the criminal proceedings were concerned because the investigations were so inadequate. However, there was no breach of Article 13 as regards the civil proceedings as the Applicants had an effective remedy, albeit the outcome was unfavourable to them.
In terms of just satisfaction, the Court’s award ranged from EUR 10000 to EUR 20000 for non-pecuniary damage and various amounts were awarded for pecuniary loss.
This case usefully adds a potential ECHR ground to any claim brought against a public body under the Rylands v Fletcher rule. Furthermore, it is also likely to set useful parameters when responding to a defence that the escape of the dangerous substance was not ‘out of the ordinary’ (the test set out by the HL in Transco v Stockport MBC), particularly during this era of global warming!