With parts of England still underwater and more wet weather to come, many people, organisation and even animals are doing their bit to help. Indeed, it has been announced that three families of beavers are to be introduced on land managed by the National Trust in order to ease flooding and also to improve biodiversity!
Inspired by ‘nature’s engineers’ and the communities that are pulling together to battle the recent weather events, here are five flooding facts about flooding.
1. Something to pond-er
The courts have had an important role in developing the law on flooding. For a long time, there was no recourse to the Courts for those affected by flooding. In fact, it was accepted that everybody had a right to defend their property against floods and, if that meant diverting floodwater to a neighbouring property so that they flooded instead of you, this was still an acceptable course of action according to the law.
Eventually, the courts developed the tort of nuisance (a ‘tort’ being, in very basic terms, a legal wrong). This provided a legal remedy for people whose property had been physically damaged by the actions of another.
2. Wading through the legislation
As well as common law, there are now also a number of statutes that have been passed by parliament that deal with flooding.
The Coast Protection Act 1949 was passed so that coastal authorities could take action to control and prevent coastal erosion. This allows them to maintain and repair coastal defences. The Land Drainage Act 1991 created the Environment Agency as well as granting certain powers to local authorities, internal drainage boards and navigation authorities to tackle flooding. It also granted rights and imposed duties on people that own land by a watercourse.
The Water Resources Act 1991 gave the Environment Agency discretionary powers to maintain and improve the condition of the UK’s rivers. It also gave the Environment Agency the power to issue flood warnings and to regulate what could be discharges into rivers, estuaries, coastal waters and lakes. The Environment Act 1995 gave the Environment Agency the power to supervise anything to do with flood management in England and Wales whilst the Flood and Water Management Act 2010 gave the Environment Agency the strategic overview for national flood and coastal erosion risk management in England (This is the responsibility of Welsh Ministers in Wales) and also introduced a requirement for new developments to have sustainable drainage systems.
3. Water they thinking?
All of the top five deadliest floods recorded occurred when the Huang He River (often called “the Yellow River”) in China burst its banks. It is estimated that one such flood in 1931 left around 34,000 square miles underwater, left around 80 million people homeless, and killed at least one million people and perhaps as many as four million. The river has also been intentionally used to devastating effect on a couple of occasions. In 1642, the Ming governor of Kaifeng, when faced with a rebellion, ordered the dikes along the river to be broken resulting in approximately 300,000 deaths. A similar tactic was employed as recently as 1938 in order to see off a Japanese invasion with nearly one million people killed.
4. Dam-age limitation
It is estimated that there are more than five million properties at risk of flooding in England. Property owners are allowed to take reasonable measures to protect their land and property from flooding, as long as these measures do not cause harm to others. The Environment Agency website contains guidance on how to legally protect your property from flooding. However, the law also requires that property owners do not use their property or land in such a way that will increase to risk of flooding to a neighbouring property. This includes an obligation to keep drains clear and to maintain flood defences where they exist. However, it is not illegal to allow water that flows naturally across your land to flow downhill naturally onto your neighbour’s land. You need not alter the laws of gravity!
5. A sensible poli-sea?
Riparian rights are rights created under common law and which have been developed through the courts. They allow those that own land next to a river or other watercourse to make reasonable use of those water sources. This can include a right to receive a flow of water in its natural state, a right to fish (subject to the Environment Agency granting a rod licence), a right to protect property from flooding and erosion, a right to swim and boat in the water and a right to extract up to 20 cubic metres of water per day for domestic purposes or for agricultural use (though not for spray irrigation).
If you have suffered flooding to your property and need to talk about liability, or if you are looking to buy or sell a property that may be at risk of flooding, Dutton Gregory is here to help.
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