Recent media reporting on Farlington Marshes, near Portsmouth, has highlighted a problem that is becoming increasingly significant for landowners, tenant farmers, graziers and public authorities. The question of what happens when seawater floods agricultural or grazing land, damaging pasture, soil quality, livestock use and long-term land value needs to be addressed.
The issue extends beyond environmental concerns. Difficult questions concerning legal responsibility, flood defence maintenance, coastal management policy and compensation are all raised by the issue. Where saltwater inundation occurs, the immediate loss may be obvious — unusable grazing, crop failure, fencing damage and veterinary risk — but the longer-term harm can be more complex. Salinity can alter soil structure, reduce productivity and render land unsuitable for conventional agricultural use for prolonged periods.
Who may be responsible?
Responsibility will depend heavily on the cause. If flooding results from an extreme natural event, liability may be limited. However, if the inundation is linked to a failed sea wall, blocked drainage, inadequate maintenance, defective works, or a deliberate “managed realignment” policy, then there is a greater likelihood of liability.
Potential responsibility may rest with one or more of:
- The landowner or occupier responsible for flood defence assets
- A local authority acting as coast protection authority
- The Environment Agency, which has strategic oversight for flood and coastal erosion risk management
- An internal drainage board, where applicable
- Contractors or engineers responsible for defective works
- Neighbouring landowners whose acts or omissions have diverted or increased the flow of water
Potential causes of action
The principal private law claims may include private nuisance, negligence, trespass to land and, in limited cases, liability under the rule in Rylands v Fletcher. The courts have recognised that occupiers may owe duties in relation to naturally occurring hazards where they know, or ought to know, of the risk: see Leakey v National Trust [1980] QB 485 and Goldman v Hargrave [1967] 1 AC 645. Cases such as Sedleigh-Denfield v O’Callaghan [1940] AC 880 and Greenock Corporation v Caledonian Railway [1917] AC 556 remain important where water is collected, channelled, diverted or allowed to escape.
Remedies may include damages, injunctions, mandatory remedial works, declaratory relief, and claims for reinstatement costs, diminution in value and consequential losses. Public law remedies may also be relevant where a public body has acted unlawfully, irrationally, or failed to follow statutory duties.
Regulatory and statutory framework
Key statutory and regulatory references include the Flood and Water Management Act 2010, Land Drainage Act 1991, Coast Protection Act 1949, Water Resources Act 1991, Environmental Permitting (England and Wales) Regulations 2016, Marine and Coastal Access Act 2009, Conservation of Habitats and Species Regulations 2017, and Wildlife and Countryside Act 1981.
Where protected habitats, SSSIs, designated wetlands or coastal conservation areas are affected, regulatory breaches may arise if works, omissions or discharges damage protected features without consent. Natural England, the Environment Agency, local authorities and the Marine Management Organisation may all have roles.
A Growing Litigation Risk
Farlington Marshes illustrates a wider question: as climate pressure, coastal erosion and managed retreat increase, who bears the legal and financial burden when the sea reaches productive land? For rural landowners and authorities alike, the answer will usually turn on evidence, particularly causation, maintenance records, statutory powers, environmental consents and whether the harm was truly unavoidable or legally preventable.
At Dyne Solicitors, we are specialists in Regulatory Disputes and Environmental Litigation. If you have any queries or wish to discuss your legal issues, please contact Alex Sandland, Patrik Jones-Wright or call the office on 01829773100. A member of the Team is always willing to make time for a preliminary and no-obligation chat.