Where works carried out by the Environment Agency under the Water Resources Act 1991 cause injury, compensation is payable to the injured party.
The Upper Tribunal (Lands Chamber) considered such a claim in Gould v Environment Agency [2023] UKUT 201 (LC); [2023] PLSCS 150.
The case concerned Langley Mill in the Colne Valley, Essex, beneath which flowed the river Colne. A mill wheel requires a head of water to drive it. At Langley Mill this was achieved by diverting the natural flow of the river into a mill race at a higher level than the natural river floor. Unfortunately, where the natural energy created is not used to drive the wheel but is instead released along the channel, an accelerated flow velocity leads to more stream power, which can erode and scour the riverbed or banks.
Section 165 of the 1991 Act provides the respondent with a general power to carry out works relating to flood defence and drainage, but compensation is payable where injury is sustained from the exercise of those powers.
Until around 2001 water ran into the channel at Langley Mill over an earth bank, which gradually eroded. The respondent carried out works to replace it with a stone-filled gabion mattress, which all agreed had now failed. The respondent was prepared to carry out repairs. However, the claimant sought compensation of around £48,000 for costs already incurred and to be incurred in repairing the bed and banks of the overflow channel.
The claimant alleged that the 2001 works were poorly executed. Consequently, too much water flowed through the side channel, which continued to be eroded, causing him the expense of repairs. He needed to establish nuisance: a wrongful act interfering with his use and enjoyment of land. However, the tribunal found there was nothing wrong with the respondent’s choice of a gabion mattress to absorb the energy of the water as it flowed from the concrete weir to the channel bed and it had not failed earlier than it should have done.
The claimant also argued that the works had altered the accustomed flow of water under the mill but he was unable to prove that there had been more erosion in the channel since 2001 than there was before. Even if there was more erosion, it could have been due to more frequent floods in the past 20 years or to diversion or disruption caused by vegetation. The claimant could also have taken a far more active role in controlling the flow of water in the side channel by operating a sluice gate to reduce erosion.
Louise Clark is a property law consultant and mediator
