King & Ors v Environment Agency

Flood-risk management policies do not necessarily constitute control of, or interference with, property under A1P1. The court must assess the measures globally, taking account of both detriments and benefits, including protection provided by existing flood defences.

Where interference is established, a fair balance requires a reasonable relationship of proportionality between the means used and the public aim. In matters involving complex flood-risk policy, statutory responsibility, specialist expertise and cost-benefit analysis, the court should not substitute its own assessment for that of the responsible public authority. Compensation is not automatically required. Article 14 is not engaged merely because different categories of property owners receive different treatment; in any event, materially different circumstances may justify that treatment.

The claimants owned or farmed land beside the River Severn at Minsterworth Ham. They alleged that the Environment Agency and its predecessors had maintained a policy of preventing the local flood embankment from being raised, so that their land would receive or convey floodwater and thereby reduce flood risk to Gloucester.

The claim was brought under A1P1, together with Article 14. The claimants argued that the policy imposed an excessive burden on them without compensation and that other landowners had been treated more favourably under flood-alleviation schemes. The central issues were whether the policy constituted control of or interference with their property and, if so, whether it struck a fair balance and involved unlawful discrimination.

1. Claim dismissed. The Environment Agency had a policy against raising the Minsterworth Ham embankment because of the adverse consequences for flooding in Gloucester. It also had, at least implicitly, a policy recognising that Minsterworth Ham reduced flood risk to Gloucester.
2. Those policies did not constitute control of, or interference with, the claimants' property under A1P1. Control ordinarily connotes restraint or regulation. The overall effect of the embankment had to be assessed. It reduced the frequency and volume of flooding and enabled productive farming, although severe floods could still overtop the embankment and remain on the land until drainage occurred.
3. The evidence did not establish that works on other nearby defences had materially increased flooding at Minsterworth Ham. Nor had the claimants pursued a case that the Agency should have raised the embankment. The alleged interference therefore lacked an evidential foundation.
4. Even assuming interference, the fair-balance requirement was satisfied. The Agency had considered alternative strategies and commissioned repeated technical and cost-benefit assessments. Parliament had entrusted it with flood-risk management, and its specialist judgment was entitled to considerable weight. The court should not conduct its own rebalancing or second-guess the Agency's expert assessments.
5. The claimants did not bear an individual and excessive burden which had been ignored. Their land was historically within a floodplain, the embankment provided them with significant protection, and the continuing flood risk was known when the land was acquired.
6. The Article 14 claim also failed. The alleged distinction was not based on a personal characteristic or status. Further, the compensated schemes relied on by the claimants differed materially from Minsterworth Ham, which was neither a washland nor an engineered flood-storage or flood-alleviation scheme. There was therefore sufficient relevant difference to justify the different treatment.