LAST WEEK’S catastrophic flash flood in Boscastle dominated the national headlines. Serious floods also occurred in Londonderry, Gainsborough and Pontypridd. Like the autumn floods in 2000, these events have focused attention on the need for flood defence and on the key question, who should pay for the damage?
The Government has launched a major consultation exercise, Making Space for Water. It follows Foresight Future Flooding, a report presented recently by Sir David King, the Government’s chief scientist. Even in the best- case scenario, the report suggests that the risk of serious and widespread flooding will more than double this century — a stark warning given that the Department for Environment, Food and Rural Affairs estimates that two million homes and 185,000 business are vulnerable. Nonetheless, the Government remains committed to the provision of up to 200,000 new homes in the South East, many on the flood plain east of London. Opponents — including members of the Greater London Authority flood scrutiny committee — have expressed concern that the flood management works required to secure planning consent for those properties would simply shift the problem elsewhere, increasing the vulnerability of existing homes and businesses.
In January last year the Association of British Insurers (ABI) pledged to maintain flood insurance for “as many customers as possible”. However, it emphasised that premiums and excesses must reflect the level of risk. Flood-prone properties can now be identified using detailed digital mapping, at present being piloted by Norwich Union for its new customers in Shropshire and Norfolk. Once a property becomes identified as an unacceptable risk, it may become wholly uninsurable.
Last month the ABI gave warning that cover might be withdrawn unless the sewage companies spend at least £1 billion improving the aged and creaking system that is now responsible for much intra-urban flooding. It also issued guidelines for flood-plain development that carry a similar warning — inadequate flood management will lead to a loss of insurance cover.
Against this background the Court of Appeal recently gave a significant boost to developers who want to build on flood plains, and removed a potential obstacle to the Government’s plans to allow housebuilding on them.
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In Arscott v Coal Authority, the court upheld the rule that a landowner may defend his land against flooding even if the effect is to divert water so that it damages someone else’s land. To fall within this rule, a developer must show that flood defence works, such as walls or banks, affecting the flood plain do not affect the established watercourse, that is where the water would go naturally. However, that will be a challenge to hydrological engineers and expert witnesses rather than a stop to development.
Inland flood defences and flood management schemes can only divert water elsewhere — frequently to householders who lack the means to defend their homes. Damage is foreseeable, yet there would be no claim against the developer and (possibly) no insurance to call upon.
In those circumstances, the search would undoubtedly be for someone to blame. One possibility would be the local planning authority. Such claims would be highly unlikely to succeed where the authority has merely given consent in line with government planning policy guidance and on advice from the Environment Agency. However, local authorities should be wary of going further and imposing conditions requiring specific flood defence or flood management works to be carried out. It may become liable should those works fail or produce problems elsewhere.
The risk of flooding can never be entirely removed. The most that can be hoped for is a coherent, integrated and properly funded policy for the management of those risks. The Government acknowledges in Making Space for Water that, in the South East at least, flood plain development is unavoidable if the targets for additional housing are to be met. If that is the case, then the Government must surely be called upon to step in as insurer of last resort should its policies create a widespread class of homeowners and businesses exposed to greater risk without insurance or legal remedy.
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The author is an Associate at the City law firm Charles Russell