Flood defence provision: what landowners need to know

Climate change has led to an increase in flooding incidents over recent years, making it more important than ever for landowners to protect their land and the interests of those around them.

However, the issue of when a landowner is responsible for flood defence provision, or when it falls to local or public authorities is often unclear. So, what are landowners’ obligations and what are their rights if they experience flood damage?

Increasing concern

A recent study by Greenpeace identified widespread problems throughout the national flood defence network. It highlighted that across the country in 2019/20, as many as 3,460 ‘high consequence’ assets were rated as being in a poor or very poor condition.

With resources becoming more stretched, the powers that public authorities wield to address flood risks are often balanced in favour of protection of homes rather than farmland. Consequently, this increasingly leaves landowners at risk.

Who is responsible for flood defences?

Individual landowners have duties known as ‘riparian’ duties. This regards the maintenance and upkeep of the watercourses forming the boundary to their property or running through their land.

Breach of these duties means that landowners can be found liable for flooding incidents on neighbouring land. Equally, whilst the common law recognises natural flooding as a ‘common enemy’, this does not allow the unreasonable diversion of flooding onto neighbouring land.

Other considerations for landowners

Landowners still have a measured duty to protect those surrounding them, which depend on several factors, including:

• The topography and use of their land
• The extent of the flooding risk to any neighbouring land
• The foreseeability of any damage and the nature of any development of their land

Other factors to consider include whether water is stored or free-draining, and the effects of any manmade structures, such as drains or culverts.

When does responsibility fall to public authorities?

The Environment Agency (EA) can also hold responsibility for maintaining and managing watercourses, principally main rivers, and national flood risk management. Local authorities and internal drainage boards are usually responsible for maintaining ordinary watercourses which are not privately owned.

It is difficult to establish liability against a public authority where their inactions (such as a failure to maintain) causes flooding. This is because public authorities have powers rather than obligations, and their powers are weighted towards preservation and protection of homes and property. However, there is currently no clear legal position surrounding when authorities are the owner of a watercourse and may be considered to have riparian duties.

It is possible for public authorities to be found liable for flooding where their actions have caused or exacerbated flooding risk. They may also be liable to pay compensation where their exercise of flood defence or drainage powers have caused flooding damage.

Seeking help

Any concerns around flood alleviation works, or the maintenance of watercourses, should be raised with the relevant public body at the earliest possible opportunity. As a landowner, seeking support from agricultural law specialists whilst doing so can help ensure you stay on the right side of the law.

Flooding is a threat that you will continue to contend with, so an understanding of your rights and obligations regarding water management affecting your land is crucial.

If you need advice or guidance on your obligations, or your rights if you have experienced flood damage on your land, then contact Jonathan Stork in our agricultural team.

Our agriculture team is ranked as a Leading Firm in the Legal 500 2021 edition.