When a serious flood hits, the damage done is often irreparable. Properties and Land are ruined. Lives are turned upside down. Businesses are interrupted.
Does this mean that those affected by the floods have to simply deal with the consequences? Or can they take action?
Identifying the cause of the flood
There are of course various causes of flooding, and there is unlikely to be legal recourse in each and every scenario.
If, however, the flooding can be shown to have been caused by certain acts or omissions, then it is possible that the aggrieved landowner could claim damages and potentially other remedies (to compel reinstatement; or works to prevent recurrence, for example).
In the leading case of Rylands v Fletcher, the Defendant constructed a reservoir close to some abandoned mines.
After failing to cap the mines properly, when the reservoir was filled, water flooded through the abandoned mines into an active mine owned by the Claimant. The Rylands v Fletcher case has established legal principles in this area, where:
- A landowner brings something onto their land,
- Such a thing is non-natural,
- If such a thing was to escape from the land it could do mischief,
- Such a thing did escape and cause mischief/damage.
- [it has subsequently been held that the mischief/damage must have been foreseeable, as per Cambridge Water Company v Easter Countries Leather plc [1994]]
No doubt, we have seen a marked increase in flooding events in recent years. It would be presumptuous to allocate the reasoning solely to “Climate Change” issues.
We believe that there are other significant elements, such as:
- Absence of proactive land and watercourse management;
- Public Sector budget cuts;
- Human trends towards self-preservation;
- Trends towards environmental “wilding”;
- Confusion over primary cause/source of flooding (where streams and rivers feed ponds).
Is there a legal case?
There are, of course, many factors that can contribute to flooding, and the simple failure of Government–commissioned flood defences will often be insufficient to bring a claim against Public Sector Agencies and Local Authorities – they are often protected by statute.
Usually, any “significant” flooding event gives rise to an obligation for ‘LLFA’ [Local Lead Flooding Authority] to investigate causes and to make recommendations on flood risk management functions.
This requirement was introduced by the Flood and Water Management Act 2010 [FWMA]. The intention was to encourage engagement and co-operation between different stakeholder organisations, such as Local Authorities; Highways Agency; and Environment Agency.
Section 19 of FWMA is an important and informative tool which requires LLFA to produce a “Section 19 Report” which sets out the relevant events; causes; findings; and recommendations.
In theory, a Section 19 Report is intended to inform and to facilitate mitigation. In practice, disappointingly, these Reports are often taking in excess of 12 months for the LLFA to complete.
In turn, this creates a further obligation for homeowners, business directors and land custodians to commission their own reports privately and at substantial cost.
Any potential claim for flooding confers a burden for the affected party to prove numerous elements (such as cause; failure/breach; and loss). This necessarily requires expert evidence.
Private landowners who suffer flooding damage deriving from a “neighbouring” property are presented with a very real opportunity to seek remedy and recourse.
The principle in Rylands v Fletcher, confers a burden on any private landowner (responsible for the watercourse) to take the steps necessary to ensure their ‘mischief’ does not escape.
The law arising from Rylands v Fletcher is inherently one which extends upon the duty of care owed to neighbours and imposes serious liability on a landowner should they fall short of their duties. The key lies with the evidence.
Failure to maintain the relevant defences and mechanisms and/or to ensure that drainage systems and processes are maintained can prove costly to those who are responsible – yet even more costly to those affected.
Litigation against such Public Authorities and Private Landowners can be time-consuming, expensive, and (at times) uncertain.
At Dyne Solicitors, we can help. We have expertise and specialist knowledge of flooding claims in both the private and regulated sectors.
For enquiries or initial discussions -please contact Alex Sandland or Patrik Jones-Wright for a no-obligation chat.