Flood defences – Classification – Appellant classifying sluice gates on Manchester Ship Canal as formal flood defences falling to be disregarded when assessing flood risk and designating flood zones – Designation quashed on ground that sluice gates not flood defences within meaning of PPS 25 and appellant’s own policies where flood defence not their primary purpose – Appeal dismissed
The Manchester Ship Canal was vested by statute in the first respondent, whose sister company, the second respondent, owned 300 acres of development land in the vicinity of the canal. The canal provided a 36-mile long navigable route for sea-going vessels from the estuary of the river Mersey to the centre of Manchester. The water level was regulated by several sets of sluice gates, which allowed ships to pass along the canal through ship locks. The sluice gates automatically adjusted up and down, in response to water sensors, to control the flow of water on a continuous basis and could also be adjusted manually. All sluices could opened in potential flood conditions.
In December 2010, the appellant decided to classify the sluices on the canal as formal flood defences when producing flood maps and designating flood zones, such that, under government policy guidance in PPS 25 and the appellant’s own policies, they fell to be disregarded when assessing flood risk. The appellant took the view that flood risk should therefore be assessed on the hypothetical assumption that the sluices would fail and remain closed, preventing water from passing along the canal. As a result, land adjacent to the canal, including land owned by the respondents, was designated as flood zone 3, with a high probability of flooding, instead of flood zone 2, with medium probability. That designation adversely affected the value of the land since it affected the ability of local planning authorities to allocate it for development.
In successful judicial review proceedings brought by the respondents, the designation was quashed on the ground that the appellant had misinterpreted and misapplied PPS 25 and its own relevant policies. The judge held that the term “flood defences” in PPS 25 referred to formal flood defences, for which flood defence was the primary function, and did not include other structures such as the sluice gates that had a different function even though they might also assist in flood protection. He further found that the appellant’s own policies distinguished between formal and “de facto” flood defences: see [2012] EWHC 1643 (QB); [2012] PLSCS 135. The appellant appealed.
Held: The appeal was dismissed.
PPS 25 defined flood defences as infrastructure intended to protect an area against flooding to a specified standard of protection. It made no distinction between formal and de facto flood defences; that was a distinction peculiar to the appellant’s own policies and PPS 25 did not preclude the appellant from including within the category of formal flood defence a structure in respect of which no standard of protection had been specified. However, the reference to a specified standard of protection provided some colour to the concept of a formal flood defence by suggesting a structure designed specifically to meet a particular standard of flood protection level, as opposed to a structure designed for a different purpose, which also contributes to protection against flooding. That concept was consistent with a pervading theme running through all the appellant’s relevant guidance and policies.
The appellant had chosen, for the purpose of flood zone designation, to recognise only two categories of flood defences. It had itself chosen to confine the category of formal flood defences to those whose primary function was flood defence. The paradigm of a formal flood defence was a structure the sole function of which was to limit the spread of flood water; the paradigm of a de facto flood defence was a structure the function of which was to aid normal operation, but which provided secure barriers to the flow of flood water. It would have been open to the appellant to create more than two categories of flood defence. There might be structures that had more than one function, in respect of which it would be difficult or impossible to determine which function was the more important. However, having chosen to apply only two categories, the appellant had to place a structure in one category or the other.
Although it was for the appellant to determine into which category of flood defence the sluices fell, in doing so it had correctly to construe and properly understand its own policies. It could not alter or widen the categories of flood defences beyond the limits that it had specified in its own policies. The appellant had been unable to decide whether the normal operation of the sluices in controlling water levels was more important than their ability to control flood water; it had considered that the sluices were equally effective in enabling navigation as in preventing flooding from the rivers that flowed into the canal. It was not open to it to meet that difficulty by departing from its published policies and treating the sluices as having two primary functions, with the result that it placed within the category of structures whose primary function was flood defence a structure whose functions in enabling navigation and preventing flooding it considered to be of equal significance. That had been a misunderstanding or misconstruction of its own policy.
The sluices were de facto flood defences. They were an essential and integral part of the canal and essential to its normal operation as the means by which, through the control of water levels, ships could navigate up and down, although they also minimised the risk of flooding. The canal and its associated structure could not operate unless it controlled the flow of water from rivers and any other source. The canal controlled all the water with which it was fed, whether it was water that would otherwise flood or not. The mere fact that it controlled and regulated the flow of water could not be a basis for placing either the canal or its associated structure within the category of formal flood defences.
Gordon Nardell QC and Christiaan Zwart (instructed by the legal department of the Environment Agency) appeared for the appellant; Peter Village QC and James Strachan QC (instructed by Clyde & Co LLP) appeared for the respondents.
Sally Dobson, barrister
R (on the application of Manchester Ship Canal Co Ltd and another) v Environment Agency
Flood defences – Classification – Appellant classifying sluice gates on Manchester Ship Canal as formal flood defences falling to be disregarded when assessing flood risk and designating flood zones – Designation quashed on ground that sluice gates not flood defences within meaning of PPS 25 and appellant’s own policies where flood defence not their primary purpose – Appeal dismissed The Manchester Ship Canal was vested by statute in the first respondent, whose sister company, the second respondent, owned 300 acres of development land in the vicinity of the canal. The canal provided a 36-mile long navigable route for sea-going vessels from the estuary of the river Mersey to the centre of Manchester. The water level was regulated by several sets of sluice gates, which allowed ships to pass along the canal through ship locks. The sluice gates automatically adjusted up and down, in response to water sensors, to control the flow of water on a continuous basis and could also be adjusted manually. All sluices could opened in potential flood conditions.In December 2010, the appellant decided to classify the sluices on the canal as formal flood defences when producing flood maps and designating flood zones, such that, under government policy guidance in PPS 25 and the appellant’s own policies, they fell to be disregarded when assessing flood risk. The appellant took the view that flood risk should therefore be assessed on the hypothetical assumption that the sluices would fail and remain closed, preventing water from passing along the canal. As a result, land adjacent to the canal, including land owned by the respondents, was designated as flood zone 3, with a high probability of flooding, instead of flood zone 2, with medium probability. That designation adversely affected the value of the land since it affected the ability of local planning authorities to allocate it for development.In successful judicial review proceedings brought by the respondents, the designation was quashed on the ground that the appellant had misinterpreted and misapplied PPS 25 and its own relevant policies. The judge held that the term “flood defences” in PPS 25 referred to formal flood defences, for which flood defence was the primary function, and did not include other structures such as the sluice gates that had a different function even though they might also assist in flood protection. He further found that the appellant’s own policies distinguished between formal and “de facto” flood defences: see [2012] EWHC 1643 (QB); [2012] PLSCS 135. The appellant appealed.Held: The appeal was dismissed. PPS 25 defined flood defences as infrastructure intended to protect an area against flooding to a specified standard of protection. It made no distinction between formal and de facto flood defences; that was a distinction peculiar to the appellant’s own policies and PPS 25 did not preclude the appellant from including within the category of formal flood defence a structure in respect of which no standard of protection had been specified. However, the reference to a specified standard of protection provided some colour to the concept of a formal flood defence by suggesting a structure designed specifically to meet a particular standard of flood protection level, as opposed to a structure designed for a different purpose, which also contributes to protection against flooding. That concept was consistent with a pervading theme running through all the appellant’s relevant guidance and policies.The appellant had chosen, for the purpose of flood zone designation, to recognise only two categories of flood defences. It had itself chosen to confine the category of formal flood defences to those whose primary function was flood defence. The paradigm of a formal flood defence was a structure the sole function of which was to limit the spread of flood water; the paradigm of a de facto flood defence was a structure the function of which was to aid normal operation, but which provided secure barriers to the flow of flood water. It would have been open to the appellant to create more than two categories of flood defence. There might be structures that had more than one function, in respect of which it would be difficult or impossible to determine which function was the more important. However, having chosen to apply only two categories, the appellant had to place a structure in one category or the other.Although it was for the appellant to determine into which category of flood defence the sluices fell, in doing so it had correctly to construe and properly understand its own policies. It could not alter or widen the categories of flood defences beyond the limits that it had specified in its own policies. The appellant had been unable to decide whether the normal operation of the sluices in controlling water levels was more important than their ability to control flood water; it had considered that the sluices were equally effective in enabling navigation as in preventing flooding from the rivers that flowed into the canal. It was not open to it to meet that difficulty by departing from its published policies and treating the sluices as having two primary functions, with the result that it placed within the category of structures whose primary function was flood defence a structure whose functions in enabling navigation and preventing flooding it considered to be of equal significance. That had been a misunderstanding or misconstruction of its own policy.The sluices were de facto flood defences. They were an essential and integral part of the canal and essential to its normal operation as the means by which, through the control of water levels, ships could navigate up and down, although they also minimised the risk of flooding. The canal and its associated structure could not operate unless it controlled the flow of water from rivers and any other source. The canal controlled all the water with which it was fed, whether it was water that would otherwise flood or not. The mere fact that it controlled and regulated the flow of water could not be a basis for placing either the canal or its associated structure within the category of formal flood defences.Gordon Nardell QC and Christiaan Zwart (instructed by the legal department of the Environment Agency) appeared for the appellant; Peter Village QC and James Strachan QC (instructed by Clyde & Co LLP) appeared for the respondents.Sally Dobson, barrister
