We have seen further evidence of the effects of climate change with the recent flash floods in Boscastle in Cornwall, UK. More and more property owners have been affected by flood damage and in some areas it is becoming very difficult to get insurance. Victims of flooding may feel that they have a right to claim compensation if they believe the actions of another party have been responsible for putting their property at increased risk. However, a recent decision of the Court of Appeal gives little hope to those in this situation.
The claimants lived in Pantglas Fawr, a small housing development in a valley in Aberfan. The river Taff runs through the valley. Between the river and the housing development is a playing field, called the Grove Field, owned by the local authority. After the Aberfan disaster in 1966, when a large volume of waste from the local colliery collapsed engulfing the school and killing 116 children and 28 adults, most of the spoil heaps were removed. The National Coal Board (NCB), under pressure from the local council, also agreed to move two further spoil heaps, even though these were not considered to be unsafe. The spoil was deposited on the Grove Field.
Unfortunately for the residents of Pantglas Fawr, the field had acted as a flood plain for the river Taff. As a result of the work by the NCB and the council, flood water could no longer enter the field but instead flowed through their properties. Serious flooding occurred in 1979 and again in 1998, so residents made a claim for compensation and sought an injunction that work be carried out to prevent flooding in the future.
The case was brought against the Coal Authority and Merthyr Tydfil County Borough Council, who carried out the works on Grove Field. Although the Environment Agency is the body responsible for maintaining existing flood defences and has the power to build new ones, it does not have a legal duty to provide protection from flood water.
The defendants conceded, on day one of the trial, that the works on Grove Field did cause the flooding in Pantglas Fawr. At issue in the case, therefore, was the ancient doctrine of 'common enemy'. This states that a landowner is entitled to protect his land against harm (i.e. flooding), even if his actions in turn cause harm to a neighbour's land. It is up to neighbours to do the same and protect themselves from the common enemy. The claimants argued that the doctrine was out of date and was meant to apply to wealthy landowners, not people living in a housing development. Also, they were in no danger from the common enemy prior to the work done to raise the level of the playing field. The defendants argued that they had an absolute right to develop Grove Field and had done so for the benefit of the community. They did not have a duty to let their land flood in order to protect the claimants' properties and were not expected to take account of the consequences of the works.
The High Court decided that the doctrine of common enemy did apply. It was up to the claimants to protect themselves from the subsequent risk of flooding. Having established this, the Court then went on to decide that the defendants could not have been expected to foresee the result of their actions, largely because the Glamorgan River Authority had approved the scheme at the time and had not identified any risk.
The Court of Appeal upheld the decision, affirming that in today's society the common enemy doctrine still represents the correct balance between the opposing interests of the claimants and the defendants. Had the Court found for the claimants, this could have opened the way for other cases where the actions of one party cause or increase the risk of flooding to another. Those in a similar position to the claimants in this case, vulnerable to flooding because of the actions of a public body, could find that there is little they can do in practice to prevent the risk and there is no remedy available to them if damage does occur.
Says Edward Saunders, London Partner, "If the effects of climate change continue to be severe, it is more than likely that we will see this issue tested in the courts again."
