Rheinallt Williams & Anor, R (on the application of) v Natural Resources Wales

A public authority performing distinct statutory roles under different enactments must apply the regime governing the function it is exercising. A decision under the Water Resources Act 1991 need not determine or prejudge a later decision under the Land Drainage Act 1991. A flood-risk authority may decide not to exercise a permissive maintenance power where it rationally concludes, consistently with the Welsh national strategy, that public investment is unjustified. Article 1 of Protocol No 1 does not generally confer a right to public protection from flooding or require the public purse to assume landowners’ responsibilities. Detailed reasons in an underlying business case may satisfy any duty to give reasons.

The claimants, who farmed land adjoining the Tan Lan Embankment on the Afon Conwy, sought judicial review of Natural Resources Wales’s decision of 24 October 2024 to cease exercising its permissive power under section 165 of the Water Resources Act 1991 to maintain the embankment and associated outfalls.

Natural Resources Wales was both the flood-risk management authority under the 1991 Act and the internal drainage board under the Land Drainage Act 1991, but those were distinct statutory capacities. The issues were whether the decision unlawfully failed to address its internal-drainage functions, omitted relevant considerations, imposed a disproportionate burden under Article 1 of Protocol No 1, or gave inadequate reasons.

1. Grounds 1 and 2. The claim failed. A decision under the Water Resources Act 1991 was not a decision under the Land Drainage Act 1991, and did not have to determine or prejudge the exercise of different internal-drainage functions. Neither Act imposed a duty to maintain the embankment.
2. Applying Jones v Mersey River Board, [1958] 1 Q.B. 143, whether an embankment was a bank of a main river was fact-sensitive. The Tan Lan Embankment was close to the natural banks, contributed to containing the rivers, and had been constructed for that purpose. It was therefore a bank of a main river. The internal drainage board’s powers under sections 14 and 14A of the 1991 Act did not extend to its maintenance.
3. Natural Resources Wales had considered the internal drainage district, precepts, drainage rates, possible funding, landowners, infrastructure, and social, health and Welsh-language impacts. Its economic conclusion that maintenance was unjustified was open to it under section 165 and the Welsh national strategy. The review process did not demonstrate a closed mind.
4. Ground 3. Permission was refused. The claimants’ land was a possession, but neither deprivation nor control of use was involved. They had no legal right or legitimate expectation of public protection from flooding. Withdrawal of discretionary maintenance did not engage Article 1 of Protocol No 1.
5. Ground 4. Permission was refused. The Outline Business Case gave lengthy and sufficiently clear reasons. Any duty concerning statements accompanying precepts under section 141(3) was distinct from any duty to explain the section 165 decision. Grounds 1 and 2 were rejected, permission on Grounds 3 and 4 was refused, and the claim was dismissed.