Flooding has hit the headlines again recently with the launch of the Environment Agency’s “Draft National Flood and Coastal Erosion Risk Management Strategy for England” https://consult.environment-agency.gov.uk/fcrm/national-strategy-public/user_uploads/fcrm-strategy-draft-final-1-may-v0.13-as-accessible-as-possible.pdf

This is the strategy for dealing with flooding and erosion to 2100.  The strategy is based on the idea that “As a nation, we need to be prepared for a 2°C rise in global temperatures, but plan for a 4°C rise”

The strategy continues to plan for natural barriers and flood relief systems as well as more resilience of individuals, businesses and communities. Against that background, we look at the liability for flooding.

Since the enactment of the Flood and Water Management Act 2010 (the 2010 Act), the management of flood and coastal erosion risk has been required to be addressed by a single national strategy.  In addition to the 2010 Act, there are other statutory provisions that affect drainage and erosion, such as the Land Drainage Act 1991 (the 1991 Act)

We take a quick look at some of the powers and duties of statutory bodies responsible for flood defences.

 

What does flooding mean?

Under the 2010 Act the term “flood’ includes any case where land not normally covered by water becomes covered by water. It does not matter whether a flood is caused by a river overflowing or its banks being breached, heavy rainfall or tidal waters.

Which bodies are responsible for flooding?

The risk management authorities for the purposes of the 2010 Act include the Environment Agency, a lead local flood authority and  internal drainage boards, although other bodies can be responsible.

The lead local flood authority for an area in England is the unitary authority for the area and, if there is no unitary authority, the county council.

What powers do flood defence authorities have?

Although authorities have a variety of powers to undertake flood defence works (including the ability to enter private land) it is worth noting that an agency may carry out specified kinds of risk management works in a way that will or may cause flooding, or coastal erosion. The conditions include;

  • The agency considers the work to be in the interests of nature conservation (including conservation of the landscape), preservation of cultural heritage, or people’s enjoyment of the environment or of cultural heritage;
  • the benefits of the work will outweigh the harmful consequences which are considered in assessing risk;
  • The agency has consulted the owners or occupiers of the land who are likely to be directly affected by the works.

An authority may designate a structure, or a natural or man-made feature where it thinks that the structure or feature affects a flood risk or a coastal erosion risk.  Where that happens, an owner or occupier may not alter, remove or replace the feature without consent.  An enforcement notice can be served in the event of a breach of these provisions.  Failure to comply is an offence.  For owners of coastal property, that may mean that there are practical restrictions on what can be done with their land.

Authorities may carry out flood risk management work if they consider the work desirable having regard to the local flood risk management strategy for the area and to manage a flood from surface runoff or groundwater.  The work can include

  • maintaining and improving existing works
  • deepening, widening, or improving an existing watercourse,
  • Removing or altering mill dams, weirs or other obstructions to watercourses
  • to reduce or increase the level of water

Authorities have a right of access to land to undertake works.

In certain cases, authorities can apply for permission to alter rights of navigation as part of a scheme.

What about coastal erosion?

Coastal erosion risk management authorities have wide general powers to carry out coast protection work. These powers include powers of compulsory acquisition of land.  In practice works are now carried out using general powers except where it is necessary to obtain compulsory powers to carry out operations on land which is not owned by the authority.

Compensation

Depending on the statutory power being exercised compensation may be payable where the works have caused a reduction in the value of land or disturbance to the owner.

Conclusion

Flooding and erosion will continue to be nationally important issues as global warming has an increasingly detrimental effect on our coast and rivers.  The statutory provisions for flood and erosion defences are extensive and have the potential to impact on all owners and occupiers of coastal and waterside property.