Property Matters January 2008

Flood Defences - Going through the proper channels
Exposure to flood risk is an increasingly live issue in developing and trading property. If it cannot be insured against, and no public authority will take adequate flood prevention measures, there is really only one option left to the landowner, which is to construct its own flood defences.

The recent case of Environment Agency v Afshin Payravi (2007) serves as a reminder that it is unwise to do even this, unless in consultation with the appropriate authority.

Regulatory bodies
In practice, landowners usually have to deal with the Environment Agency (‘EA’), in relation to a ‘main river’ (designated as such under the Water Resources Act 1991). If dealing with a tidal river, there will usually be a body with specific responsibility for it, eg the Port of London Authority in relation to the Thames.

Other watercourses not designated as main rivers usually fall under the control of the local authority. The EA is increasingly using its power to designate watercourses as main rivers, so as to give it a greater degree of control over development on flood plains and the likelihood is that in most cases the landowner will be concerned with a ‘main river’.

Role of Environment Agency
The Water Resources Act 1991 gives the EA wide-ranging powers in relation to the maintenance and improvement of main rivers (including the construction of flood defences), in order to ensure the efficient passage of flood flow and to manage water levels.

At the same time, it restricts what affected landowners can do without the EA’s consent; specifically, for present purposes, s.109(3) provides that “no structure designed to contain or divert the floodwaters of any part of a main river” shall be erected or altered without consent.

A DIY flood defence
What happens where a landowner goes ahead and constructs flood defences without obtaining the required consent? Mr Afshin Payravi, of North London, did just that. His garden, in common with those of his neighbours, backed onto the Deans Brook, which is designated as a main river. It was at risk of occasional flooding, and to guard against this Mr Payravi erected shuttering up to two metres high along the river footage, back-filled with a considerable amount of spoil from an extension being built at his home.

The failure to obtain consent was a breach, not only of s.109(3), but also of the EA’s Thames Region Land Drainage Byelaws 1981. The EA considered that the works actually increased flood risk, and served a notice requiring that they be removed.

As Mr Payravi failed to do so, he was prosecuted, and fined £2,000 plus costs of £1,500. It should be noted that while the fines imposed in any particular case may not be substantial, the EA can require removal of unauthorised flood defences, which may involve much greater costs.

There was no legal novelty or complexity to the decision, but it emphasises the fact that landowners’ common law rights are now highly circumscribed, and presumably it was with a view to raising awareness of this that the EA issued a press release about the case. The EA publishes a booklet, “Living On The Edge”, which contains guidance on the rights and responsibilities of those whose land adjoins a river.