Where your property suffers from flooding outside of your control it is important to understand your legal rights to prevent such flooding. Likewise, where property has been damaged by such flooding, you may be entitled to compensation.
Responsibility for watercourses
Where a watercourse (such as a ditch or culverted watercourse) passes over, or forms the boundary of, your land you are responsible for such part of the watercourse. The primary responsibility is to keep the watercourse clear of any obstructions which would impede the normal water flow and to manage flooding.
Flooding caused by Private Neighbouring Land
If your land suffers flooding as a result of a neighbour's failure to comply with their riparian responsibilities, or due to inadequate drainage facilities, there are several options for you to abate the flooding of your property. These are:
(a) Complain to the local authorities – you should first raise the complaint with the district council and the county council (or as the case may be, the unitary authority) for the area. Such local authorities have various powers of enforcement for the cleaning and repairing of watercourses which are causing a flooding nuisance as a result of the owner or occupiers failure to maintain such watercourse (particularly the district council under Sections 259 – 265 of the Public Health Act 1936). The county council, as the lead local flood authority, also has powers to enter private land to carry out certain flood risk management work.
(b) Application to First-Tier Tribunal – if the local authority fails to act then you should consider a formal application to the first tier tribunal seeking an order for the requisite works to mitigate the flood risk to your land.
Under Section 28 of the Land Drainage Act 1991 (“the 1991 Act”), if a ditch is in such a condition as— (a) to cause injury to any land; or (b) to prevent the improvement of the drainage of any land, the first tier tribunal, on the application of the owner or occupier of the land, may if they think fit make an order requiring any person (who is an owner or occupier of land through which the ditch passes or who has the power to so do) to carry out such remedial work as may be specified in the order. Similarly, Section 30 of the 1991 Act provides that where the drainage of any land requires— (a) the carrying out of any work in connection with a ditch passing through other land; (b) the replacement or construction of such a ditch; or (c) the alteration or removal of any drainage work in connection with such a ditch, the first tier tribunal, on the application of the owner or occupier of the first-mentioned land, may if they think fit make an order for the carrying out of such necessary works. Generally, the owners and occupiers of the land causing the flooding will need to be joined to the application. It may also be appropriate to join any local authority which may have contributed to the management of the drainage in question.
(c) Claim for damages in the Courts – the first tier tribunal does not have authority to grant you compensation for any damage caused to your property as a result of flooding from your neighbour’s land. Accordingly, if damage has been caused then you could be entitled to compensation through the courts under the law of nuisance. Owners and occupiers of land are required to do all that is reasonable in all the circumstances to prevent foreseeable hazards on the land from causing damage to a neighbour. This can include a duty to take positive steps.
Flooding caused by the Highway
The highway authority is not immune from the liabilities and obligations of riparian owners of watercourses. Generally, where a watercourse has been culverted so as to enable the highway to pass over it, the highway authority will be responsible for such culverted part as if it was a riparian owner, and will be under a duty to ensure that the natural stream, with which it had interfered, could continue to flow under the highway. Once a highway authority becomes aware that a culvert is no longer of adequate capacity, it has a duty to enlarge it. The highway authority can therefore be liable to orders in the first tier tribunal and compensation claims through the courts. The highway authority is not under a statutory or common law duty to prevent water run-off from the roadway. They do have powers to drain the highway and will be liable in negligence or nuisance should such drainage cause foreseeable flooding on private land.
Flooding caused water or sewerage undertakers
Flooding by water undertakers (ie. water supply companies) are usually a consequence of a burst water pipe. Section 209 of the Water Industry Act 1991 provides strict liability against a water undertaker where an escape of water, however caused, from a pipe vested in the water undertaker causes loss or damage. Such strict liability does not apply if the escape was due wholly by your actions or your agents or contractors. A sewage undertaker will be liable for any foreseeable damage caused by flooding as a result of any negligence or nuisance in their maintenance of the surface water and foul drainage. They may also be liable to orders in the first tier tribunal where the public drainage sewers communicate with watercourses the subject of a flooding complaint.
Flooding caused by flood risk management works
The Environment Agency has powers under Section 165 of the Water Resources Act 1991 to carry out flood risk management work provided the work is desirable having regard to the national flood and coastal erosion risk management strategies. This would include pumping of water. Similarly, the lead local flood authority (usually the county council or unitary authority) has powers under Section 14A of the Land Drainage Act 1991 to carry out flood risk management work. Namely, anything done "to reduce or increase the level of water in a place" provided it is desirable having regard to the local flood risk management strategy for its area and the purpose of the work is to manage a flood risk in the authority's area from an ordinary watercourse. In both cases, if such work causes damage to your property you will likely be entitled to full compensation from such authority under the Act for which such powers were exercised.
