A party which sustains injury by exercise of powers relating to flood defence and drainage under the Water Resources Act 1991 is entitled to be fully compensated.
The Upper Tribunal (Lands Chamber) has determined liability under the 1991 Act in Brookhouse and another v The Environment Agency [2023] UKUT 282 (LC).
The case concerned The King’s Lodging in Sandwich, a Grade II listed timber-framed building, owned by the claimants and a wall built between the property and the River Stour by the respondent as part of the Sandwich Town Tidal Defence Scheme.
The claimants acquired the property in 1991 when a permeable wall of brick and concrete separated their garden from the river. In 2014, as part of a flood defence programme, the respondent constructed a steel sheet piling wall alongside the property about a metre further into the river, filled the space between the two walls with free-draining material and capped it with a concrete apron.
Between early 2015 and 2019 there were incidences of flooding in the garden and the claimants undertook prevention works. Since the works were done, the property, which has no in-built protection from damp, had deteriorated from its previously satisfactory condition. Areas of existing damp deteriorated and new areas appeared; cracks widened and others appeared and part of the property bowed outwards.
The claimants sought compensation under the Water Resources Act 1991 for the existing and continuing damage due to raised groundwater levels caused by the works. The respondent denied that groundwater levels had been changed by the works.
The tribunal was satisfied that the respondent’s works were neither negligent nor poorly designed. The old wall, being permeable, would have allowed some leakage into the property at high river levels and drainage out at times of lower river levels. During the works the wall was taken down below ground level and structurally compromised.
The tribunal accepted the claimant’s hydrologist expert’s evidence that at high tides water flowing into the material between the new and old walls penetrated the old wall into the ground between it and a buried revetment – the remains of an even older wall – which prevented water from flowing back freely. It would only drain away very slowly during extremely dry periods.
While the revetment had always been there, the works reduced and damaged the old wall, which allowed far more water to get past it. The tribunal was satisfied that raised water levels, of near to a metre, were caused by the works. Extra-high tidal inflows in future would only exacerbate the problem.
Louise Clark is a property law consultant and mediator
