Watercourse – Riparian rights – Nuisance – Compensation – Water Resources Act 1991 – Claimant owning mill – River flowing around channel to north of building – Respondent environment agency having powers and duties relating to control of water around building – Whether respondent liable for maintaining channel – Whether claimant entitled to compensation – Claims dismissed
In 2011, the claimant purchased a building known as Langley Mill, in the Colne Valley in Essex. The river Colne, running from Great Yeldham to the sea at Brightlingsea, flowed beneath the building. The river flowed around a channel to the north of the mill.
In May 1964, the claimant’s predecessor in title (C) entered a deed with the statutory predecessor of the respondent Environment Agency, under which the predecessor acquired rights to control the water around the mill; those rights were now exercised by the respondent. By 2001, the bank was suffering from erosion and the respondent carried out a programme of works to rectify the damage. Before the claimant purchased the mill, the respondent carried out regular bank maintenance.
A dispute arose between the claimant and the respondent concerning liability for maintaining the channel, and work done by the respondent in 2001 which the claimant said was causing damage to his property.
The claimant brought an action in the county court for declarations that the respondent was required to maintain all the decking to the east and west of the mill; the channel was a “control work” which the respondent was required to maintain; and the respondent was bound in perpetuity by the obligations under the deed.
The claimant also brought a claim in the Upper Tribunal against the respondent for compensation under paragraph 5(1) of schedule 21 to the Water Resources Act 1991 for costs already incurred in repairing the bed and banks of the overflow channel and for future costs for urgent and further work. The actions were heard together.
Held: The claims were dismissed.
(1) There was no basis for the implication of a term that the respondent would maintain the decking, as submitted by the claimant. C granted to the respondent’s predecessor “full access” to the works mentioned in the deed. On the assumption that the claimant was bound by that grant, he had to maintain the decking insofar as that was necessary to give the respondent the access to which it was entitled. If the decking fell into disrepair, and the claimant did not maintain it, the respondent could enforce its right and thereby require him to repair it or to provide some other means of access. The claimant’s argument that there was a “plain and obvious gap” in the deed was unsustainable: Marks & Spencer plc v BNP Paribas Securities Trust Co (Jersey) Ltd [2016] EGLR 6 applied. JN Hipwell v Szurek [2018] EWCA Civ 674; [2018] PLSCS 63 considered.
On the evidence, the decking, other than the “open decking over”, was not within the respondent’s obligations and no term could be implied in the deed that the respondent would repair it or the side channel.
(2) There had been little or no analysis by the parties of what the deed was and whether the obligations within it bound the successors in title to the original parties. It was not appropriate for the court to make a declaration now that no term could be implied that would enable either party to terminate, when that would bind the parties for ever, regardless of what might happen in the future. Either party might come to regret it. Accordingly, the court declined to make a declaration as to whether there was an implied term in the deed that it could be terminated on reasonable notice.
The respondent was under no statutory duty to control the flow of water through the mill or to keep the riverbanks in repair. Its statutory duties were general and did not extend to the management of mills or the maintenance of riparian properties. It appeared that the respondent had gone beyond its statutory duties in the past but the respondent’s past actions did not change the legal position and the respondent was entitled to cease to do things it was not obliged to do.
(3) The covenant by the respondent in the deed required it to operate and maintain the sluice gate and maintain any works it might install if it considered it “necessary and desirable” to do so, but that did not detract from the claimant’s own ability and responsibility to control the flow. Nor did it detract from the common law responsibility of riparian owners such as the claimant to their neighbours; they would be liable in nuisance if they caused flooding or other disturbance to other landowners.
(4) Section 165 of the 1991 Act provided the respondent with a general power to carry out works relating to flood defence and drainage. Section 177 gave effect to schedule 21 to the Act, making provision for imposing obligations as to the payment of compensation in respect of the exercise of powers under section 165, among others. Paragraph 5 of schedule 21 provided that where injury was sustained by any person by reason of the exercise by the appropriate agency of any powers under section 165, the appropriate agency was liable to make full compensation to the injured party, to be determined by the Upper Tribunal.
In order to obtain compensation under paragraph 5, the claimant had to prove the elements of the tort of nuisance: a wrongful act interfering with the claimant’s use and enjoyment of land. The claim was founded on the allegation that the works done in 2001 were defective. On the evidence, there was no fault with those works and the claim under the 1991 Act failed.
(5) As the owner of a mill, the claimant had a special right at common law, namely to the “accustomed flow of water”. A change in the accustomed flow of water beneath a mill was in itself a tort (private nuisance) so that, even if no fault could be found with the 2001 works themselves, if the claimant could show that since 2001 the flow had been changed then he could succeed in his claim: Roberts v Gwynfrai District Council [1899] 2 Ch 608 considered.
However, on the evidence, the claimant could not show a tortious act by the respondent, whether in the way the 2001 works were carried out or in the diversion and reduction of the accustomed flow of water under the mill.
John Bates (instructed by Direct Access) appeared for the claimant; Ned Westaway and Caroline Daly (instructed by EA Legal Services) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Gould v Environment Agency
