Wednesday, 30 December 2015

Flooding ~ funding for defences ~ legal responsibility

Widespread flooding has left thousands of people devastated, their homes wrecked and struggling local businesses ruined with the north of England most affected - see Winter 2015 Floods: government response.  Severe flooding has occurred over several recent years - previous post - In the Firing Line - the Environment Agency (10th February 2014)

On 2nd December 2014, the coalition government announced a 6 year flood defence programme which will cost £2.3 bn.  Whilst this figure remains in place (see Autumn Statement) it is also reported that the Department for the Environment, Food and Rural Affairs (DEFRA) is to take a 15% cut in its budget over the next years - The Express 14th December.

The government has
published its view of Funding for Flood and Coastal Erosion Risk Management (FCERM) in England - December 2015.   DEFRA Defra is committed to a six year programme of capital investment to improve defences up to 2020-21 of £2.3bn and 2015-16 is the first year of this.

The question of funding is politically controversial and it may be that funding was reduced following the 2010 General Election - The Guardian 30th December 2015 has an interesting report about expenditure in this area over the last 5 years.

Questions of legal liability for flooding will inevitably arise.  This is an extremely complex area of law (both common law and statutory) and this brief post can only touch upon a few points.  Some of the links in the post will serve to flesh out the topic and highlight some of the difficulties. 

Common law liabilities for flooding are discussed in this excellent document by barrister William Upton of 6 Pump Court - Flood me: flood me not (published December 2014).  The article refers mainly to two cases decided by the Court of Appeal (Civil Division)

Arscott v Coal Authority [2004] EWCA Civ 802- flooding took place in Aberfan during 1998 and this case was concerned with how far you can go to defend your land against floods when such defensive action could result in more serious flooding elsewhere.

Vernon Knight Associates v Cornwall Council [2013] EWCA Civ 950 - an appeal by Cornwall Council against a decision that it was liable for damage caused by floodwater escaping from one of the roads in the county. The appeal was dismissed for reasons set out mainly in the judgment of Lord Justice Jackson.  For additional discussion of the case see the article by Robin Churchill -  Murky flood waters: murky law.

There is a large volume of statute law dealing with many aspects of water.  For example, regulators have powers to prevent flooding.  Where there is a statutory regulatory scheme then it will be necessary to bear in mind the House of Lords decision in Marcic v Thames Water Utilities [2003] UKHL 66.  The particular case concerned sewage overflowing and fouling Mr Marcic's garden.. He argued his case in nuisance at common law (and human rights).  Allowing the appeal by Thames Water, their Lordships held that Parliament had provided an elaborate regulatory system, which balanced the competing private and public interests, and the common law should not impose obligations that were inconsistent with it.

With regard to liability of drainage authorities, William Upton's article concluded (depressingly) that the only duty owed to any member of the public is not to add to the damage which that person would have suffered had the authority done nothing.

Below are some further links on on this difficult topic. The legal odds are certainly stacked heavily against those who have suffered due to the flooding.  Insurance cover for flooding may exist but any liability of the insurer will depend on the detailed contract of insurance.  See Association of British Insurers.

Links:

6 Pump Court - The Autumn Statement 2015 for Environment Lawyers

In House Lawyer - Legal responsibility for flooding- article by Michael Barlow, partner, Burges Salmon LLP.


Mayo Wynne Baxter Solicitors - Murky flood waters: murky law

EC3 - Flood Damage: Who is liable? where Hanna Martindale and John O’Shea discuss liability for flood damage and the difficulties faced in pursuing such claims.

Legislation:

Law and Your Environment  - and see their specific webpages on Flooding

Flood and Water Management Act 2010 and the Flood Risk Regulations 2009 (which implement Floods Directive (Directive 2007/60/EC of the European Parliament and of the Council on the assessment and management of flood risks). 

I am grateful for the following tweet ....

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