Crop damage from deliberate flooding – who’s liable?
The recent, devastating floods have caused chaos in many areas of the country and have hit rural areas particularly heavily. Farmers are often particularly badly hit, but in some cases, the damage is not solely the fault of the weather. A recent case has highlighted the problems faced by farmers when floods strike.
The case concerns a Yorkshire farmer, whose land was deliberately flooded to divert water away from housing. He took his claim for compensation to the Lands Chamber of the Upper Tribunal, a body established in 2008 to decide disputes concerning land issues including compensation for drainage works.
Robert Lindley operated a farming business in the village of Burton Fleming near Driffield in the East Riding of Yorkshire. The village had suffered heavy rain for a number of months, meaning that the chalk aquifers had become full to bursting. In late December 2012, the houses in the village were in serious danger of flooding and seven or eight were flooded.
The East Riding of Yorkshire Council liaised with various agencies about the floods, including the fire service and the Environment Agency. With their assistance, water was pumped from the Gypsey Race, a watercourse that ran through the village, into a field that was part of Mr Lindley’s farm where a carrot crop was growing.
A large part of the crop was lost and, through his family company, Robert Lindley Ltd, he sued the council for damages at the Upper Tribunal under section 14A of the Land Drainage Act 1991.
Whilst the council accepted that the crop had been damaged during the pumping action, which happened between 28th and 31st December, they did not accept liability for the flooding.
The Council’s case
Their case was as follows: from Christmas Eve 2012, the Fire Service and the Environment Agency provided pumping equipment to deal with the floods in Bishop Fleming. Two days after Christmas, the Council had a meeting with the Fire Service and the Environment Agency and from 2nd January, the council took over the supervision of the pumps that the Agency had provided.
Because the pumping that had caused the damage to Mr Lindley’s crop had occurred before 2nd January, the council was not exercising its powers under Section 14A of the Land Drainage Act.
The Claimant’s case
Mr Lindley argued that the council was the lead local flood authority for that part of the river. The Environment Agency and the Fire Service were providing assistance so that it could carry out its functions under Section 14A.
The Tribunal’s Decision
To determine the council’s liability, the Tribunal looked at the flood risk management functions of the Council and the Environment Agency and their powers under the following legislation:
Land Drainage Act 1991
Water Resources Act 1991
Flood and Water Management Act 2010.
The tribunal decided that the Council’s exercise of Section 14A powers had caused the damage to Mr Lindley’s crop, even though the damage had happened before the council fully took over the pumping operation.
Mr Lindley’s company was therefore entitled to compensation of £14,500 for the devastated crop.
The Tribunal Judge said that this was a test case and would likely have far-reaching consequences, continuing “…there are a large number of other similar claims made by farmers as a result of crop losses allegedly caused by the pumping of flood waters. Thus, although the sums involved in this reference are now relatively modest the issues of principle involved will have a far reaching effect in respect of the other claims.”
The ruling will make interesting reading for thousands who have been affected by rural flooding carried out deliberately to divert water from built-up areas. However, it could also mean that local authorities will be faced with having to pay out millions in compensation.
(Many thanks to Robert Norton)
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