Flood management   

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An issue of increasing concern to landowners in recent years is who holds responsibility for damage caused by flooding. Faced with reductions in its revenue budget, the Environment Agency (EA) is now pursuing a policy of withdrawing from maintaining those assets which are deemed to represent lower priority river and coastal systems.

The EA has published a Protocol for the Maintenance of Flood and Coastal Risk Management Assets in England. The ramifications of the Protocol are that the EA will end maintenance work where it is either uneconomic to continue (i.e. the cost of carrying out the work outweighs the benefit to be gained from the work) or the work required is unaffordable because the maintenance work is of insufficient priority to enable the EA to attract the funding needed to undertake the work on an ongoing basis.

Although the EA Protocol will not be followed on every occasion, it does set out the framework to be applied by the EA to its works of maintenance across the country. This has led farmers and landowners to question whether there is a statutory requirement compelling the EA or, in some cases, an internal drainage board, to continue to maintain flood defences.

Generally, statutory authorities such as the EA operate by way of permissive powers rather than formal duties, which means that they ‘may’ choose to construct/maintain flood defences, rather than being under an absolute obligation to do so.

Some recommended practical steps for those facing the issue of maintenance works being withdrawn by the EA are firstly to identify the owner of the asset concerned before then considering the impact of the EA’s Protocol, and whether there may be grounds to lodge an appeal. It would also be sensible to find out from the EA what maintenance works have been carried out in previous years and whether there are currently works being undertaken.

There may be options available to carry out works in collaboration with adjoining landowners and make a saving by sharing the cost of materials and machinery. It is also important to consider whether there are items of infrastructure (roads, railways, gas lines etc.) which might be affected by maintenance works a landowner wishes to carry out and whether there will be an effect on designated sites such as sites of Special Scientific Interest or Special Areas of Conservation.

A version of this article appeared in the East Anglian Daily Times on 21 March 2015.

If you need advice, our friendly and experienced solicitors are on hand to help. Call the team on 01473 611211 or email bg@barkergotelee.co.uk