09/06/2016
East Riding Council Forced To Pay Compensation To Farmer In Landmark Case
Local Councils could be forced to pay out millions of pounds to farmers whose land has been damaged by deliberate flooding, an action taken to divert water from built up areas.
In a test case, farmer Robert Lindley successfully argued that he was entitled to compensation after East Riding Council deliberately flooded his fields in 2012 in order to protect homes following heavy rain.
Although the ruling will provide relief to farmers whose land and crops have suffered heavy damage, local councils, already managing tight budgets, could be further stretched by a slew of compensation claims.
The facts of the case
On Christmas Eve 2012, serious flooding occurred when a watercourse running through Burton Fleming in Yorkshire over-topped. To protect the village, flood water was pumped onto a nearby field as a part of a multi-agency response involving the East Riding Council, the Environment Agency (EA), and the Fire Service. The field was farmed by the claimant and as a consequence of the redirection of flood water, a portion of the claimant’s carrot crop was destroyed. The claimant applied to the Upper Tribunal (Lands Chamber) (UT) for compensation from the council in respect of the crop losses under section 14A (11) of the Land Drainage Act 1991.
The UT’s decision on whether compensation for the flooding should be ordered
The UT awarded the Mr Lindley £14,500 for the devastated carrot crop.
East Riding Council tried to argue that it was not liable for the damage because the pumping of water that flooded the claimants’ land was done by the fire service and the Environment Agency. However, the UT held that the council was acting as the “lead local flood authority” and therefore had ultimate responsibility for the damage caused. Furthermore, the Environment Agency was simply co-operating with the council in the exercise of its flood risk management functions as it was under a duty to do so. The UT held that if it were not for the council’s statutory power to carry out flood risk management work, the redirection of flood water onto the claimant’s field would have constituted nuisance at common law.
The relevant legislation governing lead local flood authorities
The Flood and Water Management Act 2010 (the Act) instructs that a lead local flood authority must develop, maintain, apply and monitor a strategy for local flood risk management in its area, and is to play a lead role in emergency planning and recovery after a flood event. Its duties extend to surface runoff, groundwater, and ordinary watercourses. On becoming aware of a flood in its area, it has to investigate so far as necessary or appropriate, which risk management authorities have relevant flood risk management functions, and whether each of those authorities has exercised, or is proposing to exercise those functions in response to the flood. It must publish the results of its investigation and notify any relevant risk management authorities. It will also, amongst other things, bear responsibility for maintaining a register of physical features that have a significant effect on flooding in its area.
Under the Land Drainage Act 1991, a lead local flood authority can carry out emergency procedures to manage a flood, and this includes reducing or increase the level of water in a particular place. Those affected by the actions taken to implement the necessary procedures are entitled to compensation under the Act.
With the advent of global warming driving more extreme weather, flood claims will undoubtedly become more common. This will put pressure on local bodies, already struggling to meet their obligations in the face of ever-shrinking budgets.
Local authorities need contingency plans in place to deal with increased claims, as although it can be tricky to determine which authority is exercising what powers, it is the local authority that is likely to find itself with the title of ‘lead local flood authority’ and therefore, be liable.
Potential claimants need to be aware that in Mr Lindley’s case, legislation provided for compensation from the ‘lead local flood authority’. Claims against other agencies, bodies or persons outside of the Land Drainage Act 1991, could be far less straightforward; particularly the proposed defendant failed to take steps to alleviate flood risk. Most cases involving flooding will require detailed consideration of the common law principles of nuisance and negligence as well as the potential application of the common enemy doctrine.
To bring a case successfully, the engagement of an experienced solicitor is imperative.
Fisher Scoggins Waters are a London based law firm who are experts in environmental, construction, manufacturing and engineering matters. If you would like to discuss bringing or defending a flooding related claim, please phone us on 0207 993 6960.