Flooding – Compensation – Land Drainage Act 1991 – Claimant’s carrot crop lost during flooding – Claim for compensation under section 14 of 1991 Act for loss suffered as a result of exercise of respondent council’s powers as lead local flood authority under section 14A of 1991 Act – Claimant alleging that pumping of water worsening damage to crop – Whether that work carried out by respondents in exercise of powers under section 14A of 1991 Act – Whether Fire Service or Environment Agency acting as agents for respondents – Claim allowed
The claimant company farmed land in the vicinity of Burton Fleming, a village near Driffield in the East Riding of Yorkshire. It applied, under section 14(6) of the Land Drainage Act 1991, for the determination of the compensation due to it for the loss of its carrot crop during a period of serious flooding which occurred at the village between December 2012 and March 2013, when a watercourse known as the Gypsey Race overtopped its banks.
Initially, the Fire Service and the Environment Agency (EA) had provided pumps to in order to pump the flood water back into the Gypsey Race. In December 2012, the respondent council chaired a multi-agency meeting in respect of the flooding and, from early January 2013, they took over the supervision of the pumps supplied by the EA. The effect of the pumping was to divert floodwater away from the built areas of the village in the direction of the claimant’s land.
It was agreed that the amount of compensation payable, in the event that liability was established, should be £14,500 on the ground that an additional 2.9 acres of its land had been flooded as a result of the pumping. However, the respondent contended that no compensation was payable, since the claimant’s loss was not sustained by reason of the respondents’ exercise of their powers as lead local flood authority under sections 14 or 14A of the 1991 Act but was instead the result of actions taken by the Fire Service and EA. The claimant argued that those bodies had acted as agents of the respondents.
It was common ground that the flood in Burton Fleming was a flood falling within section 1 of the 1991 Act and that the respondents were the lead local flood authority within section 6(7).
Held: The claim was allowed.
(1) The claimant had suffered an injury by the respondents’ exercise of their powers under section 14A of the 1991 Act. Pumping carried out by the respondents qualified as “flood risk management work” by a lead local flood authority within the meaning of section 14A(9). Such work did not have to be permanent in nature and could include temporary pumping of water. Section 14A(9) was widely worded so far as it encompassed “anything done” for the relevant purposes. Had parliament intended to limit the definition of flood risk management work to permanent work it would not have chosen those wide words. Moreover, section 19 of the Act, setting out the investigatory role of the lead local flood authority, contemplated that risk management authorities would have relevant flood risk management functions when a flood occurred, some of which were likely to be temporary.
The EA did not itself have any relevant power to carry out pumping in the circumstances of the case. The EA’s power to carry out pumping, which would fall under section 165(1D)(g) of the 1991 Act as work to reduce the level of water in a place, was exercisable only if the condition was met that the EA considered the work desirable having regard to the national flood and coastal erosion risk management strategies under sections 7 and 8 of the Flood and Water Management Act 2010. There was no suggestion that the pumping out of Burton Fleming was in accordance with the national strategies of the EA. It followed that the EA did not have power to pump water under section 165 of the 1991 Act. However, the EA was a risk management authority within section 6(13) of the 2010 Act and was under a duty to co-operate with the respondents in the exercise of their flood risk management functions.
On the evidence, the pumps supplied by the EA had been on loan to the respondents from the time when they were delivered. The EA had received a request for assistance from the respondents and had agreed to provide pumps in response to that request. Very little supervision was required in the operation of the pumps; once they were in position, all that was necessary was to ensure they had sufficient fuel. The proper conclusion was that the EA was assisting the respondents in fulfilling their flood risk management work under the 2010 Act and that the pumping of the water in Burton Fleming was flood risk management work within section 14A of the 1991 Act. The injury suffered by the claimant was therefore caused by the exercise of the respondents’ powers under section 14A.
(2) The legal position of the Fire Service was different from that of the respondents or the EA. It was not a relevant authority for the purpose of the 1991 Act but it did have the power, under section 11 of the Fire and Rescue Services Act 2004, to take any action that it considered appropriate in response to an event or situation that caused, or was likely to cause, any individual to die, be injured or become ill or that caused, or was likely to cause, harm to the environment. The flooding in Burton Fleming was an event within section 11 and the pumping by the Fire Service was carried out under that power. It followed that any damage to the carrot crop caused by the Fire Service was not an injury sustained by reason of “the exercise by any authority of powers under section 14A” so as to be within the jurisdiction of the Upper Tribunal. However, given the agreement between the parties as to the amount of compensation, it was accepted that compensation should be assessed in the sum agreed notwithstanding that some of the injury was caused by pumping from the Fire Service.
John Bates (instructed by Crombie Wilkinson Solicitors LLP, of York) appeared for the claimant; Andrew Scott (instructed by Forbes Solicitors, of Leeds) appeared for the acquiring authority.
Sally Dobson, barrister
Click here to read transcript: Robert Lindley v East Riding of Yorkshire Council
