An increase in flooding incidents as a result of climate change means it has never been more important for landowners to protect their land and the interests of those around them, according to Jonathan Stork, partner and agriculture specialist at law firm Shakespeare Martineau.
However, there is often uncertainty around when a landowner is responsible for flood defence provision, or when this falls to local or public authorities.
In recent years, a ‘perfect storm’ of climate change challenges, increasing the risk of flooding, and a lack of resources for maintaining flood defence and drainage systems, has caused legal issues linked to flooding to come into the spotlight.
So, what are landowners’ obligations when it comes to flood defence provision, and what are their rights if they experience flood damage?
A recent study by Greenpeace has identified that there are widespread problems across the national flood defence network.
It highlighted that across the country in 2019/20, as many as 3,460 ‘high consequence’ assets – for example, sluice gates and drains – were rated as being in a poor or very poor condition.
This represents 6 percent of the UK’s total flood defence infrastructure and marks a deterioration compared to previous years.
At the same time, the chief executive of the Environment Agency has described recent weather and flooding incidents as meeting forecasted ‘reasonable worst-case scenarios’, with an expectation that the conditions causing flooding will get worse in the years to come.
High-profile flooding incidents affecting many thousands of hectares of farmland, such as those at the Somerset Levels in 2013-14 and the floods in Eastern Lincolnshire in summer 2018, are also contributing to concerns about whether watercourses are being maintained effectively.
Limited resources are becoming ever-more stretched and the powers that public authorities wield to address flood risk are balanced in favour of protection of homes rather than farm land.
In the future, much-needed additional housebuilding will increasingly be sited on areas more prone to flooding, and flood attenuation is often a key condition for the granting of planning permission.
However, the enforcement of such conditions usually involves weighing up available resources against the perceived benefits of putting in place flood defence measures.
As such, it is not unheard of for a local authority to refuse the enforcement of its own flood attenuation planning conditions, on the basis of a lack of resources.
Having a clear understanding of their rights and obligations when it comes to flood provisions can enable landowners to take practical steps to mitigate the risk of flooding on their land, while protecting the interests of their neighbours.
Individual landowners have duties – known as ‘riparian’ duties –regarding the maintenance and upkeep of watercourses forming the boundary to their property or running through their land.
For this reason, landowners can be found liable for flooding incidents on neighbouring land if they are in breach of normal riparian duties regarding the upkeep and maintenance of watercourses on their own property.
Beyond this, the common law recognises natural flooding as a ‘common enemy’. This means that taking action to protect land has generally been considered to be legitimate.
However, it is important for landowners to bear in mind that this is a qualified right and does not allow the unreasonable diversion of flooding onto neighbouring land.
Similarly, there has been a movement in the courts towards landowners being required to do what is reasonable when it comes to mitigating natural water flow onto nearby land.
Landowners have a measured duty to protect those surrounding them, which will depend on numerous and potentially interweaving factors.
These include the topography and use of their land, the extent of the flooding risk to any neighbouring land and the foreseeability of any damage and the nature of any development of their land.
Other factors that may need to be considered include whether water is stored or is free-draining, and the effects of any manmade structures, such as drains or culverts.
The responsibility for maintaining and managing watercourses can also fall to the Environment Agency, which is principally responsible for main rivers and national flood risk management, local authorities and internal drainage boards. Local authorities are usually responsible for maintaining ordinary watercourses which are not privately owned.
The EA has powers to prevent flooding incidents, rather than obligations. This usually involves the EA balancing the cost of any flood defence work against the perceived benefits, which currently focuses on prioritising homes and property over farmland.
As a result, it has historically proven difficult for landowners to take legal action against public authorities where their inaction, for example, in failing to maintain watercourses or flood defences, has led to flooding.
There is no clear legal position when relevant authorities are the actual owner of a watercourse, and may therefore be considered to have ordinary riparian duties.
Nevertheless, public authorities may be found liable for flooding where their actions have caused or exacerbated flooding risk, for example, where works intended to protect one area of land have caused additional flooding risk in another area.
They may also be liable to pay compensation where their exercise of flood defence or drainage powers have caused flooding damage, for example where flood alleviation action, such as pumping, causes damage to neighbouring land.
Ultimately, if landowners have significant concerns around flood alleviation works or the maintenance of watercourses, it is important to raise them with the relevant public body at the earliest possible opportunity.
There are examples of local landowners working together to share the time and resources involved in performing flood mitigation works.
Seeking support from agricultural law specialists when undertaking such activities or speaking to public authorities can help landowners to reduce flooding risk while staying on the right side of the law.
Flooding is a threat that landowners will need to contend with for years to come, so they must understand their rights and obligations regarding water management affecting their land.
Knowing their options in the event that they wish to take legal action for flooding damage can also provide them with valuable peace of mind, should the worst come to pass.
This article was written by Jonathan Stork, partner and agriculture specialist at law firm, Shakespeare Martineau.
