15 February 2016

The curious case of Mr Lindley's carrots: liability for the cost of flood damage

In December 2015, Yorkshire and Lancashire saw some of the worst floods in living memory.  Described as "unprecedented" and even "biblical" by the press, the clean up costs have been estimated by insurance companies to be in the region of £5 billion.

Once the waters subside, fingers inevitably start pointing.  It was a political bun fight and the government's immediate response was to pledge more money for preventative measures.  However, a recent case at the Lands Tribunal has ruled that Local Authorities could be liable to pay compensation to landowners as a result of decisions it makes during such floods.

In the small village of Burton Fleming in the East Riding of Yorkshire there is a water course known as Gypsey Race.  According to folklore, when the Gypsey Race is flowing, bad fortune is at hand.  It is said to have flowed before the great plague of 1664, the restoration of Charles II and the landing of William of Orange.  In December 2012 not only did it flow, but burst its banks and in so doing, there can be no doubt it brought bad fortune for East Riding of Yorkshire Council and other Local Authorities upon whom the Lands Tribunal's decision will be binding.

During 2012, parts of the UK saw high levels of rainfall from as early as April.  Chalk aquifer levels rose by more than 9m in some areas and flood plains were inundated.  Burton Fleming is underlain by chalk, so there was a real danger of the village flooding when the rains started once more in December.  The Local Authority therefore took the decision to pump the flood waters away from the village and into the Gypsey Race.  On Christmas Day the Gypsey Race burst its bank and began to flood the idyllically named Cottage Field.  Cottage Field was owned by Robert Lindley, whose company farmed carrots on the land.  As a result of the increased flooding of Cottage Field, the carrot crop was ruined.

By the 28th December the village of 343 dwellings had begun to flood and the sewage system had failed.  The Local Authority continued to use the Environment Agency's equipment to pump the flood water away from the village and onto Robert Lindley's land until March 2013.  However, it was the first 48 hours of the flood which destroyed the carrots.

The facts of this case are fairly specific and include involvement and advice from the Fire Service, Police and the Environment Agency as well as the Local Authority. The Environment Agency was held not liable because the pumping occurred as a result of local flooding rather than as a result of the Environment Agency's national flood and coastal erosion risk management strategies.  The Environment Agency was simply assisting the Local Authority in carrying out their functions under the Flood and Water Management Act 2010, namely reducing or increasing the water levels in a particular place. 

Therefore it was ultimately the Local Authority who were held liable to pay compensation assessed pursuant to the Land Drainage Act 1991.  The interpretation of this statute provides that if a certain act would have been an unlawful nuisance, were it not for statutory powers, then compensation is payable.  Therefore whilst it was lawful for the Local Authority to pump water onto Cottage Field, the loss suffered by Mr Lindley should be compensated.

It should be noted that it is only the difference the pumping made to the flooding of Cottage Field for which the Local Authority were liable.  If it would have flooded to the same extent without the actions of the Local Authority no compensation would have been payable.  On the facts of this matter, the Local Authority was liable to pay £14,500 to the claimant.  It was noted in the judgment that "this is in the nature of a test case in that there are a large number of other similar claims made by farmers as a result of crop losses allegedly caused by the pumping of flood waters.  Thus, although the sums involved in this reference are now relatively modest the issues of principle involved will have a far reaching effect in respect of the other claims".

Desmond, Eva and Frank, the trio of storms which struck the north of England in a single month in 2015 forced hundreds of people into temporary accommodation.  Thousands of homes and businesses were left without power and facing massive clean up costs.  It was clear that some difficult decisions had to be taken by local authorities during this time, for instance opening the River Foss Flood Barrier allowing the Foss and the Ouse to converge on York.  Whether further compensation will be payable as a result of such decisions remains to be seen.


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