Robert Lindley Limited v East Riding of Yorkshire Council

Temporary pumping may constitute flood risk management work under section 14A(9)(g) of the Land Drainage Act 1991. The statutory expression “anything done” is wide enough to include temporary as well as permanent measures to reduce water levels.

Where a lead local flood authority exercises that power, compensation is payable for injury caused by the exercise of the power if the resulting act would otherwise have been actionable at common law. Assistance given by the Environment Agency in co-operation with the authority may fall within the authority’s exercise of its flood-risk-management function.

The claimant farming company lost part of its carrot crop after floodwater was pumped into the Gypsey Race at Burton Fleming during severe flooding between December 2012 and March 2013. The additional flooding affected its Cottage Field.

The parties agreed the valuation of any compensable loss at £14,500, exclusive of interest. They disputed whether the Council, as lead local flood authority, was exercising powers under section 14A of the Land Drainage Act 1991 when the damage occurred. The Tribunal also considered the respective roles of the Environment Agency and the Fire Service, and whether the loss would have been actionable at common law.

1. The claim succeeded. The claimant was entitled to £14,500 compensation, plus interest, under section 14A(11) read with section 14(5) of the Land Drainage Act 1991.

2. The pumping at Burton Fleming was flood risk management work within section 14A(9)(g). The words “anything done” were deliberately wide and included temporary pumping to reduce the level of water in the village. The Tribunal rejected the Council’s contention that the statutory power extended only to permanent works.

3. The relevant crop damage occurred between 28 and 31 December 2012. The pumping would, absent statutory authority, have been actionable at common law as flooding caused by putting more water into a watercourse than it could contain. Applying Marriage v East Norfolk Rivers Catchment Board [1950] 1 KB 284, that satisfied the actionability requirement for statutory compensation.

4. The Environment Agency had not shown that it had the separate statutory power under section 165 of the Water Resources Act 1991 to undertake this pumping. It was instead co-operating with, and assisting, the Council in the latter’s flood-risk-management function. The pumps were also inferred to have been loaned to the Council from their delivery on 26 or 27 December, supported by the Council’s request for them and its provision of fuel. Accordingly, the injury was caused by the exercise of the Council’s section 14A powers.

5. The Fire Service acted under section 11 of the Fire and Rescue Services Act 2004, not as the Council’s agent. It was unnecessary to decide whether the Environment Agency was the Council’s agent, or whether any such agency had been ratified. The parties’ compromise covered damage attributable to the Fire Service pumping.

6. The determination was final except as to costs, for which the Tribunal gave directions for submissions.

not stated in the judgment.