Environment lawyer Ella Curnow summarises some key recent legal developments on flooding
Parts of the UK again experienced significant flooding during the winter as storms Desmond, Eva and Frank in particular triggered significant disruption to homes, businesses, agriculture and transport and utilities infrastructure. The Association of British Insurers estimated that the damage would cost insurance companies £1.3bn. In the aftermath of the floods, there have been three important legal developments.
Flood risk permits
On 6 April 2016, flood defence works were brought within the environmental permitting regime (EPR) in England and Wales. Flood risk permits have replaced the flood defence consents granted under the Water Resources Act 1991, and consents for land drainage and sea defence under byelaws.
Responding in January 2016 to the consultation on integrating flood defence consents into the EPR, the UK and Welsh governments confirmed that a standard rules permit would be available in many instances. Yet concerns remain that the new regime may increase the regulatory burden on individuals and businesses carrying out relatively minor maintenance of watercourses to prevent flooding. There are, however, activities that do not require a permit or can be carried out under a registered exemption. For example:
- Exclusion – carrying out minor works on or affecting bridges and culverts for highways and public rights do not require a permit.
- Exemption – operators are allowed to dredge a maximum of 1.5 km of manmade ditches, land drains and agricultural drains, subject to specified conditions to protect designated sites and sensitive water bodies.
More information can be found in the Environmental Permitting (England and Wales) (Amendment) (No. 2) Regulations 2016 (bit.ly/1ShBLvc). The Environment Agency and Natural Resources Wales intend to issue full guidance on flood risk permits later in the year.
Duties on local authorities: further warning from the courts
Robert Lindley Limited v East Riding of Yorkshire Council, heard by the Upper Lands Tribunal in January (bit.ly/1VnxbMa), highlights the importance of local authorities understanding their duties on flooding and their need to be proactive in dealing with the risk.
In this case, the local authority was held liable for damage to crops caused by an operation to pump floodwater out of a neighbouring village and into a stream. Pumps had been arranged by the Environment Agency, but the council oversaw the operation. The stream overflowed and damaged crops in a field. The council had assumed the agency remained responsible. The court disagreed and held that the council had been responsible because it had been acting under its powers in the Land Drainage Act 1991 to reduce the level of water in the village; the agency was merely providing assistance under the Flood and Water Management Act 2010.
This case follows the case against Rochdale Council in 2010 (panel, right), after a developer had caused flooding by blocking a culvert. However, the Court of Appeal held that the local authority was under a common law duty of care to assist, which included allowing others to have access to the land, co-operating with any relief works and possibly even carrying out works to its own land to alleviate the nuisance.
Flood Re launches
Flooding reinsurance, or Flood Re, launched on 4 April. Flood Re is a scheme to help about 350,000 householders in flood risk areas to obtain affordable flood insurance with cover at a set price. Key things to be aware of are:
- The scheme is funded through an annual levy of £180m on insurance policies of UK homes. Flood RE has its own reinsurance policy to ensure it will be able to cope with significant or multiple flood events.
- The scheme works by providing insurers with the opportunity to purchase subsidised reinsurance against flood risk if they are not prepared to underwrite the risk themselves.
- Premiums are capped by reference to the council tax band of the insured property – from £210 for band A to £540 for band G homes – and rise in line with inflation.
- The scheme does not cover commercial or mixed use property. Nor does it cover all types of domestic properties, including leasehold flats and buy-to-let properties, and properties built after 1 January 2009.
Flood RE will continue until 2039. More information can be found in The Flood Reinsurance (Scheme Funding and Administration) Regulations 2015 y/1SNWxgb).
Rochdale Council case
In Lambert v Barratt Homes and Rochdale Metropolitan Borough Council, the Court of Appeal overturned a court ruling that the council was liable for breach of a measured duty to take reasonable steps to abate the nuisance from water flooding on the claimant’s land. The council had sold part of a school playing field to construction company Barratt, on which it built housing. During construction, Barratt negligently filled in a drainage culvert, causing flooding and damage. Although the appeal court said Rochdale was not responsible for the cause of the flooding, which was a result of Barratt’s actions, it said the council should assist in constructing a catch pit on the land it retained, allowing excess water to be piped to the sewer by a different route.
For more information contact Ella Curnow at [email protected] or burgessalmon.com/practices/environment.
