Burges Salmon’s environment team considers some of the recent key developments in law on flooding including Flood Re, environmental permitting for flood defences and another warning from the courts on local authorities’ legal duties for flooding.
Flood Re. launches
The Prudential Regulatory Authority and Financial Conduct Authority announced that Flooding Reinsurance, or Flood Re, will be live in April 2016. Flood Re is a scheme to help private householders obtain affordable flood insurance with cover at a set price. Key things to be aware of are:
- Flood Re is a not-for-profit fund, owned and managed by the UK insurance industry. It is funded through an annual levy of £180m on UK homes insurers. Flood Re also has its own reinsurance policy in place to ensure it will be able to cope with significant or multiple flood events.
- Flood Re works by providing commercial insurers with the opportunity to purchase subsidised reinsurance against flood risk where they are not prepared to underwrite that flood risk themselves.
- Insurers using Flood Re will need to adhere to capped premiums for their customers, set by reference to the Council Tax band of the property and rising in line with inflation.
- The scheme will not cover commercial property or mixed use property.
- The scheme will not cover all types of domestic properties; it does not cover leasehold flats, buy-to-let properties and properties built after 1 January 2009 .
- More information can be found in The Flood Reinsurance (Scheme Funding and Administration) Regulations 2015 (SI 2015/1902).
New Flood Risk Permits
From 6 April 2016, flood defence works will be brought within the Environmental Permitting Regime.
New “Flood Risk Permits” will replace the old system of flood defence consents under the Water Resources Act 1991, and consents for land drainage and sea defence under byelaws.
In response to the consultation earlier this year, the Government confirmed that a standard rules permit will be available in many instances, although a number of respondents had raised concerns that the new regime may still increase the regulatory burden on individuals and businesses (operators) looking to carry out relatively minor maintenance of watercourses to prevent flooding. There are, however, a number of activities which are excluded from the requirement to obtain a permit and a number of other activities which can be carried out under a registered exemption. For example,
- Exclusion: carrying out of certain minor works on or affecting bridges and culverts for highways and public rights are excluded from the requirement to obtain a permit.
- Exemption: following a pilot earlier this year, operators will be allowed to dredge a maximum of 1.5km of man-made ditches, land drains and agricultural drains without a permit, subject to certain conditions to protect designated sites and sensitive waterbodies.
More information can be found in the Environmental Permitting (England and Wales) (Amendment) (No. 2) Regulations 2016. The Environment Agency and Natural Resources Wales intend to issue full guidance on Flood Risk Permits later this year.
Duties on local authorities for flooding: a further warning from the courts
The recent case Robert Lindley Limited V East Riding of Yorkshire Council highlights the importance of local authorities understanding their duties in relation to flooding and being pro- active in dealing with flood risk.
In this case the local authority was held liable for damage to crops caused by an operation to pump floodwater out of a neighbouring village and into a stream. Pumps had been arranged by the Environment Agency but then left for the local authority to oversee. The stream overflowed and damaged crops in a field. The local authority had assumed that the Environment Agency remained responsible as it had procured the pumps in the first place.
The Lands Chamber disagreed and held that the local authority had been the responsible because it had been acting under its powers in the Land Drainage Act 1991 to reduce the level of water in the village, whereas the Environment Agency was merely providing assistance under the Flood and Water Management Act 2010. Key to the Chamber’s decision was its finding that the local authority had failed to carry out its duty under the Flood and Water Management Act 2010 to investigate who the relevant risk management authorities were and what role it was fulfilling.
This case follows the important decision of the Court of Appeal against Rochdale Metropolitan Borough Council in 2010. In that case, although the flooding had been caused by a developer blocking a culvert, the Court of Appeal held that the local authority was under a common law duty of care to assist,which included allowing others to have access to the land, co-operating with any relief works and possibly even carrying out some of the works to its own land in order to alleviate the nuisance. See our full case report.