Dale Paul Gould v The Environment Agency

A term will be implied into a deed only where necessary to make the arrangement work. A court will not imply a maintenance obligation merely because it would be reasonable or convenient. A landowner’s right to an accustomed flow of water is protected in nuisance, but a compensation claim under paragraph 5(1) of Schedule 21 to the Water Resources Act 1991 requires proof of conduct that would otherwise be tortious.

Where statutory works were competently designed and constructed, did not materially alter the accustomed flow, and the alleged erosion was materially attributable to the owner’s own control of the sluice gate, no actionable nuisance was established.

The claimant owned Langley Mill on the River Colne. He sought declarations in the County Court concerning a 1964 deed between his predecessor and the Environment Agency’s statutory predecessor. He also claimed compensation in the Upper Tribunal under paragraph 5(1) of Schedule 21 to the Water Resources Act 1991.

The County Court issues concerned whether the Agency had to maintain decking and the side channel, and whether the deed could be terminated on reasonable notice. The Tribunal claim alleged that the Agency’s 2001 replacement side weir and gabion mattress caused excessive flow, erosion and a reduction in the mill’s accustomed water flow. The central issue was whether the works gave rise to an actionable nuisance and therefore statutory compensation.

1. The compensation claim was dismissed. Paragraph 5(1) of Schedule 21 to the Water Resources Act 1991 required the claimant to establish injury caused by the exercise of the Agency’s powers which would otherwise be actionable in tort. The alleged tort was private nuisance. The Agency’s general statutory functions did not impose a duty to operate the mill or maintain its banks, and its previous voluntary assistance did not alter that position.

2. The 2001 side-weir works were not shown to have been wrongful. The concrete weir was an appropriate replacement for the eroded earth bank. It was built at approximately the previous height and was not materially wider. The Agency properly matched the existing slope to the channel, since removing it would have created flooding risk. A gabion mattress was an appropriate means of dissipating energy from the drop; its failure after about 20 years did not prove defective design or premature failure.

3. The claimant also failed to prove a material alteration of the accustomed flow beneath the mill. The evidence did not establish that the side channel had previously been dry, that the 2001 works caused greater erosion, or that flow preferentially entered the channel because of the works. The sluice gate and vegetation in the mill race materially affected the flow. The claimant retained control of the gate and his failure to operate it was likely to have caused much of the erosion complained of.

4. In the County Court action, the Agency’s maintenance obligations under the 1964 deed extended to the specified control works, including the open decking over the sluice gate, but not the remaining decking or the side channel. No maintenance term could be implied because the deed already granted the Agency access and worked without it. The court also declined a premature declaration about termination on reasonable notice.

not stated in the judgment.