Environment Agency Successfully Defends Flood Damage Claim


Flood waters sadly have to go somewhere and, in a case of interest to landowners, particularly farmers, the High Court has rejected claims that the Environment Agency (EA) acted unlawfully in sacrificing agricultural fields in order to protect a county town from inundation.

The case concerned a group of farmers who owned land along a stretch of the River Severn which was prone to flooding. Severe floods had occurred in 2007 and 2014 and the farmers had suffered a grave financial and emotional toll. In seeking about £300,000 in damages, they claimed that the EA had pursued a flood defence policy that breached their human right to peacefully enjoy their property.

In ruling on their claim, the Court noted that the relevant land was on a flood plain and that inundations of the area had been recorded since the 13th century. Although the EA acknowledged that an embankment that protected the land was insufficient to cope with extreme weather conditions, there was no data to support claims that the flooding problem had worsened in recent decades.

The Court accepted that the EA's motive in not increasing the embankment's height was to reduce flood risks in the population centre downstream. It was also more likely than not that the EA had a policy to use the farmers’ fields for that purpose. However, after carrying out a cost-benefit assessment, the EA had concluded that the case for raising the embankment was not strong enough.

In dismissing the farmers’ claim, the Court found that the agency had fairly balanced individual and public interests. It had been even-handed in its approach to works on the embankment and others in the vicinity. Although the Court had sympathy for the farmers, it noted that it would be wrong to second guess the EA’s exercise of its discretion in allotting its limited flood defence budget.

There was no basis on which it could be said that the farmers were shouldering an individual and excessive burden, relative to others, as a result of the agency’s policy, or that this had been ignored. Arguments that the EA had discriminated against the farmers in failing to afford them compensation that had been paid to others in a similar position also fell on fallow ground.

King & Ors v Environment Agency

Rex Cowell