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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> King & Ors v Environment Agency  EWHC 65 (QB) (19 January 2018)
Cite as:  EWHC 65 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| CHRISTOPHER KING AND OTHERS
|- and -
Gwion Lewis and Heather Sargent (instructed by Legal Services, Environment Agency) for the Defendant
Hearing dates: 24 November, 27 November – 1 December 2017
Crown Copyright ©
Sir Ross Cranston:
III. Procedural Issues
IV. Legislative and Policy Framework
Role of Environment Agency in flood control
"(1) The appropriate agency may—
(a) carry out flood risk management work within subsection (1D)(a) to (f) if Conditions 1 and 2 are satisfied;
(b) carry out flood risk management work within subsection (1D)(g) or (h) if Condition 1 is satisfied.
(1A) Condition 1 is that the appropriate agency considers the work desirable having regard to the national flood and coastal erosion risk management strategies under sections 7 and 8 of the Flood and Water Management Act 2010.
(1B) Condition 2 is that the purpose of the work is to manage a flood risk (within the meaning of that Act) from—
(a) the sea, or
(b) a main river.
(1C) In subsection (1B)(b) the reference to a main river includes a reference to a lake, pond or other area of water which flows into a main river.
(1D) In this section "flood risk management work" means anything done—
(a) to maintain existing works (including buildings or structures) including cleansing, repairing or otherwise maintaining the efficiency of an existing watercourse or drainage work;
(b) to operate existing works (such as sluicegates or pumps);
(c) to improve existing works (including buildings or structures) including anything done to deepen, widen, straighten or otherwise improve an existing watercourse, to remove or alter mill dams, weirs or other obstructions to watercourses, or to raise, widen or otherwise improve a drainage work;
(d) to construct or repair new works (including buildings, structures, watercourses, drainage works and machinery);
(e) for the purpose of maintaining or restoring natural processes;
(f) to monitor, investigate or survey a location or a natural process;
(g) to reduce or increase the level of water in a place;
(h) to alter or remove works.
(2) The appropriate agency shall also have power to maintain, improve or construct drainage works for the purpose of defence against sea water or tidal water; and that power shall be exercisable both above and below the low-water mark.
(3) The appropriate agency may construct all such works and do all such things in the sea or in any estuary as may, in its opinion, be necessary to secure an adequate outfall for a main river..."
Article 1, First Protocol to the ECHR
"the likelihood and potential consequences of which the authorities should have foreseen. The Court has furthermore established that the main reason for the flood, as confirmed by the expert reports, was the poor state of repair of the Pionerskaya River channel because of the authorities' manifest failure to take measures to keep it clear and in particular to make sure its throughput capacity was adequate in the event of the release of water from the [r]eservoir": -.
"43. In principle this [statutory] scheme seems to me to strike a reasonable balance. Parliament acted well within its bounds as a policy maker. In Mr Marcic's case matters plainly went awry... But the malfunctioning of the statutory scheme on this occasion does not cast doubt on its overall fairness as a scheme. A complaint by an individual about his particular case can, and should, be pursued with the director [the regulator] pursuant to the statutory scheme, with the long stop availability of judicial review. That remedial avenue was not taken in this case.
44. I must add that one aspect of the statutory scheme as presently administered does cause concern. This is the uncertain position regarding payment of compensation to those who suffer flooding while waiting for flood alleviation works to be carried out. A modest statutory compensation scheme exists regarding internal flooding…There seems to be no statutory provision regarding external sewer flooding. Some sewerage undertakers make payments, others do not. They all provide a free clean up and disinfecting service, including removal of residual effluent.
45. It seems to me that, in principle, if it is not practicable for reasons of expense to carry out remedial works for the time being, those who enjoy the benefit of effective drainage should bear the cost of paying some compensation to those whose properties are situated lower down in the catchment area and who, in consequence, have to endure intolerable sewer flooding, whether internal or external. As the Court of Appeal noted, the flooding is the consequence of the benefit provided to those making use of the system:  QB 929, 1001, para 113. The minority who suffer damage and disturbance as a consequence of the inadequacy of the sewerage system ought not to be required to bear an unreasonable burden. This is a matter the director and others should reconsider in the light of the facts in the present case."
Article 14, ECHR
" Article L.222-13 of the Countryside Code does indeed create a difference in treatment between persons in comparable situations, namely the owners of land or hunting rights, since those who own 20 hectares or more of land in a single block may object to the inclusion of their land in the ACCA's hunting grounds, thus avoiding compulsory membership of the association, whereas those who, like the applicants, possess less than 20 or 60 hectares of land may not."
"34. […] I doubt that Article 14 is engaged in the circumstances of this case. This scheme does not discriminate between individuals and groups on the basis of personal characteristics. If it did, then that would be the case whenever a distinction is drawn between different categories of property owners. But, in any event, it seems to me that any discrimination will be justified […]"
V. The Evidence
Q: You say the consequence of works at Elmore is common sense, not based on technical and scientific evidence? A: Yes, based on common sense and experience but when I am stood looking [at the river] I can see [the water] going over on one side and not on both sides.
Environment Agency's strategy/policy for Minsterworth Ham
"…fill the area…too soon and there is no storage capacity available for containing waters at the peak of the event….It is important to empty the flood banks as soon as possible after the peak has passed in order that storage can be available for subsequent events."
"At Minsterworth there is an earth embankment…designed to be overtopped in order to flood Minsterworth Ham on the rare joint occurrence of extreme high tides with high fluvial flow…From Elmore Back to Bush Crib, a continuous earth embankment defends the low lying land."
"Simply raising the crest of the defences to the height you suggest would result in a vast loss of flood storage volume which would conflict with the government policy set out in PPS25. In addition the government strategy, "Making Space for Water" guides toward managing river system and floodplain to mimic nature by allowing more water to spread onto natural floodplain areas like Minsterworth Ham.
"an area or plot which can become immersed in water at times of higher water levels. Washlands fill and drain naturally."
"were natural or man-made areas that temporarily fill with water during periods of high river level, retaining a volume of water which is released back into the watercourse after the peak river flows have passed…… the vast majority of FSAs attenuate fluvial events and are located either on or adjacent to rivers to provide flood protection to downstream communities. A much smaller number of FSAs are located on estuaries and operate by limiting the progression of the tide and thereby improving the standard of protection to properties at risk from tidal flooding."
"The benefits achieved when flood and coastal erosion risks are managed are in many cases localised and lead to personal or private gain through the protection of specific individuals, communities and businesses. They can also be public, through the reduction of future costs to society arising from incident recovery. The private as well as public nature of the benefits suggests that costs should not fall to the general taxpayer alone."
The Minsterworth Ham embankment
(b) 1996- present
"The message we will be giving to the landowners is that whilst it can be shown evacuation of the Hams using such a control structure as that requested in the previous meeting would reduce levels and time of flooding in some parts, it will not be economically viable to provide such a structure even with the economic benefits available in connection with a scheme to provide flood alleviation to properties in Gloucester…Providing such a control structure outside a capital scheme to protect Gloucester would not be viable…"
"[W]e have previously looked at providing higher defences for Cornham and Minsterworth Ham alone, but there were insufficient benefits to justify the works. Furthermore the current studies show that raising of the existing defences would cause significant detriment to many commercial and residential properties at Gloucester…The Defences downstream of the Hams…have been shown by recent models to have affected flood risk in the upper estuary… The effect of these defences is similar to how the existing defences at the Hams can be shown to have increased flood risk at Gloucester."
Flood defence works in vicinity of Minsterworth Ham
"The work carried out elsewhere has increased flood risk to the Hams in some large flood events. Compensation is not payable and the agency is not liable. The detriment caused cannot be taken into account in assessing the benefits of carrying out a local scheme."
Compensatable flood storage/alleviation schemes elsewhere
"So many combinations would have to be simulated in order to assess the impact of a particular activity on the frequency of flooding at Minsterworth. This investigation was beyond the scope of both experts' reports."
"[t]he actual level of a flood defence, especially of earth floodbanks, is variable due to the freeboard allowance, construction tolerances possible, and the amount of settlement. The aim is to provide sufficient freeboard to give confidence that during the design life of the defence the target design defence level (or higher) is always achieved".
Findings on the evidence
i) Like most of the area on both sides of the River Severn in the immediate vicinity, Minsterworth Ham is in a flood plain and there are records of it being flooded going back centuries.
ii) Flooding is complex and there are various reasons it can occur. In the vicinity of Minsterworth Ham, floods can be fluvial, tidal or a combination of both.
iii) The Minsterworth Ham embankment reduces the frequency and volume of flooding there and, in facilitating agricultural productivity, is to the claimants' benefit (as they have acknowledged).
iv) In recent times, major floods at Minsterworth Ham, involving the movement of livestock and the destruction of crops, have occurred in 2000, 2007, 2012, 2013/2014, with the claimants (or at least those then there) suffering economically and emotionally.
v) The experts have not been able to find data to support the claimants' experience that flooding is getting worse at Minsterworth Ham.
vi) The design level of Minsterworth Ham embankment is 9.75mAOD, although it was not designed to one consistent level and in fact the height varies along its length.
vii) Over the years the Environment Agency and its predecessors have maintained the Minsterworth Ham embankment and have improved it, as with the installation of the large outfalls in 2006, although presently there seem to be some defects where maintenance work has not been undertaken, or at least undertaken adequately.
viii) The Environment Agency has accepted that on rare occasions, with high tides and high fluvial flows, the Minsterworth Ham embankment will overtop and that water will be stored there until it drains back into the river through the outfalls.
ix) The Environment Agency and its predecessors have had a policy that the Minsterworth Ham embankment should not be raised because of the detriment to Gloucester. This is the conclusion on the evidence considered earlier in the judgment, mainly assembled under the heading "The Minsterworth Ham embankment". It is not to the point for the Environment Agency to contend that it could not have such a policy because the final decision about changes to the embankment lies outside the agency with the planning authority, or that the claimants have never pursued an application to raise its height. If they did I am in no doubt that the agency would raise objections. Nor is its refutation of having a policy advanced by its assertion that it will consider any application to raise the embankment's height on its merits: if it is to act lawfully, it must do that as a matter of public law.
x) The Environment Agency and its predecessors are more likely than not to have had a policy, at least implicitly, that the claimants' land acts to reduce the risk of flooding to Gloucester. Minuted statements by agency officials, internal documents, consultants' reports and reports of the agencies themselves, or to which they have contributed, and which were referred to earlier in the judgment, collected mainly under the heading "Environment Agency's strategy/policy for Minsterworth Ham", lead me to this conclusion. This is more than a recognition, as expressed in the Environment Agency's evidence, that there is an element of storage on Minsterworth Ham during some high water periods. The reality for the agency is that in such cases Minsterworth Ham conveys floodwater which it would not do if the height of the embankment was increased.
xi) These policies are based on expert assessments, supported by the reports of independent consultants. In particular, cost-benefit assessments have concluded that the economic case for raising the Minsterworth Ham embankment is not strong enough. In particular there have been four cost-benefit assessments to this effect in recent times, which were described earlier in the judgment: as part of the Gloucester Study in 2002, in the course of producing the Tidal Severn Strategy 2002-2006, during the development of the Severn Estuary Flood Risk Management Strategy 2008-2013, and in the course of producing the document Reducing Flood Risk from the River Severn at Gloucester and the surrounding area – Initial Assessment 2014-2016.
xii) Modelling by the experts shows that if the Minsterworth Ham embankment was raised to an equivalent level to embankments in the immediate vicinity, 10.1mAOD, the area of land flooded would be reduced by between 116 to 141 hectares, and the mean peak level of water on Minsterworth Ham would be reduced by between 0.74 m and 1.4m.
xiii) When the Environment Agency has carried out work on existing flood defences, or constructed new defences, in the vicinity of Minsterworth Ham, it has concluded that the benefits outweighed the costs, albeit that following flooding other factors such as public pressure have also (unsurprisingly) entered the equation.
xiv) Consequently, the Environment Agency has been even-handed as between its approach to works on the Minsterworth Ham embankment and on other embankments in the vicinity.
xv) Modelling by the experts shows that these works on embankments elsewhere in the vicinity of Minsterworth Ham have had a small effect, at most, on the extent of flooding at Minsterworth Ham itself. That conclusion is subject to the limitations of modelling, which both experts accepted. Consequently, notwithstanding the belief of some at least of the claimants, and the statements of Environment Agency officials recorded in 2002-2003, it is not possible for me to conclude that the actions of the agency on these other flood defence works have had any impact on the extent of flooding at Minsterworth Ham.
xvi) Notwithstanding the claimants' evidence as to what common sense and their experience suggest, it is not possible for me to conclude that as a matter of course Minsterworth Ham will always be flooded prior to other areas in the vicinity where the flood defences are higher. The evidence is that, with flooding, numerous factors interact, not least at Minsterworth Ham, where tidal and fluvial events may operate in combination.
xvii) For reasons given earlier in the judgment, what can be characterised as the Environment Agency's use of Minsterworth Ham for flood defence purposes is materially different from the flood storage and flood alleviation schemes elsewhere in England and described earlier. Nor can Minsterworth Ham be regarded as a washland.
VI. Claimants' Case
"However, although opposed to hunting on ethical grounds, they are obliged to tolerate the presence of armed men and gun dogs on their land every year. This restriction on the free exercise of the right of use undoubtedly constitutes an interference with the applicants' enjoyment of their rights as the owners of property."
Here, by contrast, in overall terms the claimants' use of the land at Minsterworth Ham is enhanced by the embankment.