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New Clause 44 - Liability in nuisance for a riparian owner

Water Bill – in a Public Bill Committee on 17th December 2013.

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‘The Secretary of State may by regulations make provision to limit the liability in nuisance for a riparian owner when the Environment Agency or relevant authority withdraws from maintenance of flood defences.’.—(Roger Williams.)

Brought up, and read the First time.

Photo of Roger Williams Roger Williams Liberal Democrat, Brecon and Radnorshire 2:00 pm, 17th December 2013

I beg to move, That the clause be read a Second time.

It is a pleasure to serve under your chairmanship, Mrs Riordan. I draw to the Committee’s attention my entry in the Register of Members’ Financial Interests, which includes some landholdings, but no flood defences to my knowledge.

The new clause would introduce a provision to limit the liability in nuisance for a riparian owner when the Environment Agency or relevant authority withdraws from the maintenance of flood defences. When the Environment Agency or other relevant authority withdraws funding for long-established flood defences, the new clause would allow a riparian owner to satisfy any liability in private nuisance from an affected third-party landowner if he invites such a party to enter his property in order to carry out the necessary upkeep of existing formal flood defences. I stress that the new clause is not an attempt to get riparian owners off the hook, but merely to redress the balance between all parties affected in a fairer way.

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

I will not detain the Committee for long. For the benefit of the other place, which will be discussing the Bill in the new year, will the hon. Gentleman mind spending thirty seconds outlining what he means by “riparian”?

Photo of Roger Williams Roger Williams Liberal Democrat, Brecon and Radnorshire

I am not a lawyer, but, in common usage, I believe “riparian owner” means somebody who owns the bank of a river—a flowing body of water—as opposed to a lake.

Photo of Anne Marie Morris Anne Marie Morris Conservative, Newton Abbot

My hon. Friend’s point is pertinent and relevant. There is an unresolved dispute in my constituency that has been ongoing for nine months between the relevant parties about a disused pipe that caused damage. A constituent now has almost no foundations under his house. This is exactly the sort of solution we need.

Photo of Roger Williams Roger Williams Liberal Democrat, Brecon and Radnorshire

I thank my hon. Friend for that. I am sure that many hon. Members will have constituency examples of disputes that remain difficult to resolve. I may disappoint her by telling her that I do not intend to  press the new clause to a vote, but it is useful to put the matter on the record and to get a response from the Minister.

If a riparian owner has material economic interest, such as a farmhouse or farm buildings, in the continued maintenance of a flood defence, it is only right to expect him to join in with other property owners in sharing the expense of maintaining flood-defence structures. As a result of funding pressures and flood risk policy, the Environment Agency and other relevant authorities are withdrawing from long-standing flood defence commitments, which may have been in place for decades, if not for hundreds of years. That places owners of land adjoining rivers in an impossible position. If they fail to take responsibility for maintaining the defences, which could run to millions of pounds, they potentially face legal claims in private nuisance from adjoining landowners and home owners who suffer loss through flooding. Even basic work on earth flood banks costs in the region of £1,000 a metre. There is growing evidence that this is becoming more of a problem—as withdrawal continues to accelerate, so will the problem.

In this age of litigation, it is almost inevitable that individuals and insurance companies will seek redress through private nuisance. Common law does not fairly address the problem, because a riparian owner could be unfairly forced to contribute to the upkeep of defences because of the threat of an undefined liability resulting from a potential insurance claim. The nature of nuisance means that it is not possible to define with precision what actions will ensure that a landowner has acted reasonably in any given case. Even if a riparian owner did not want to continue to protect their own property, it is likely that they would need to invite their neighbour or neighbours on to their land to enable them to carry out repairs to the flood defence. To secure their position against the possibility of a future claim, it is likely that they would feel required to offer a financial contribution above the top limit of what a court might consider to be reasonable in the circumstances of the case.

I have set out the cause for concern and invite the Minister to respond.

Photo of Neil Parish Neil Parish Conservative, Tiverton and Honiton

I support my hon. Friend, because I believe there could be unlimited liability for some landowners and other property owners. We have to be very careful about how we deal with this. It may be that some of it can be dealt with through liability insurance, but getting such insurance could be one of the problems—the problem is not only cost. If private landowners need to ensure that the defences are put in place, will we stipulate, through the Environment Agency and others, a very expensive and all-embracing scheme? Sometimes, a much more cost-effective scheme could be done on a local basis. It could be afforded and paid for and be effective in stopping flooding.

As my hon. Friend has said, the trouble is that, if we are not careful, much of the problem will land up being a legal matter to be sorted out in the courts, which is one place where we do not want it to land up. In the end, money spent on legal action ends up in the hands of the great lawyers and could be much better spent on a flood defence scheme. There is no lack of lawyers in the House, but this point of legislation could land up  in too much litigation. I will be interested to hear what the Minister says. I have great confidence in him, of course, especially just before Christmas.

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

It is a pleasure to serve under your chairmanship, as ever, Mrs Riordan. I will be brief. The Opposition welcome the probing new clause—it is a good way to kick off the debate. We have heard two thoughtful but short contributions. We very much welcome the debate and will seek the assurances that the problem, which perhaps is overlooked normally, is dealt with. Subject to reassurances, we would not seek to divide the Committee at this time, but obviously we would think about dividing the other place if the Minister is unable to give us a full response.

Photo of Dan Rogerson Dan Rogerson The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

It is a pleasure to welcome you back to the Chair this afternoon, Mrs Riordan. The new clause tabled by my hon. Friend the Member for Brecon and Radnorshire raises some complex issues that the Department for Environment, Food and Rural Affairs is currently discussing with the Country Land and Business Association, a fact of which he is probably well aware. I know that the CLA is concerned that people who own riparian land could be subject to legal action if they do not maintain flood defences that were previously maintained by the Environment Agency and a third party is flooded.

The CLA has already written to the Secretary of State asking that a provision be added to the Bill to remove liability from a riparian landowner where authorities have withdrawn funding for flood defences and the landowner has invited an affected third-party landowner to carry out the necessary maintenance works. The effect of the new clause would be that others who benefit from works on a riparian flood defence on an owner’s land could not seek any claim against the owner if there were any failure of the defence. The new clause would give powers to the Secretary of State to make regulations limiting the liability for a riparian owner when the Environment Agency or relevant authority has withdrawn from maintaining flood defences.

I appreciate that the Environment Agency’s intention to withdraw from maintaining some flood management assets is causing some landowners concern, but I should like to make it clear that it will only consider such action where maintenance is no longer economically justifiable in terms of protecting people and property from flooding. I recognise that that can create a challenging situation for landowners, residents and others who are affected. Therefore, the agency is committed to working with landowners and other affected parties to discuss the reasons for withdrawal and to support them in exploring alternative options.

Photo of Thomas Docherty Thomas Docherty Shadow Minister (Environment, Food and Rural Affairs)

I am listening to the Minister. He has given assurances that he is seeking to make progress, but will he update the Committee on whether he anticipates those discussions being concluded prior to the matter being discussed in the other place, or whether a longer-term discussion needs to take place?

Photo of Dan Rogerson Dan Rogerson The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

If I can make some progress in my response to my hon. Friend’s proposal, the Government’s approach will become apparent. I welcome the hon. Gentleman’s asking for clarification on that point.

I understand that my hon. Friend is concerned that riparian landowners may be liable in cases of flooding and is looking to give them more certainty on the actions they would need to take to meet their duty of care to their neighbours. I have not seen evidence suggesting that the courts have reached perverse or unreasonable decisions that have imposed disproportionate burdens on landowners or others. Landowners are expected to undertake only those works that readily lie within their capability and means. A landowner may, for example, be able to take a few simple steps in such circumstances, at limited cost, to limit any potential flood impact on neighbouring lands or buildings.

Photo of Neil Parish Neil Parish Conservative, Tiverton and Honiton

The Minister says that the landowner could take a few simple steps to stop flooding, but who will decide what those simple steps are? Will all that be taken to court? What he says sounds lovely, but the problem is whether it will work in practice.

Photo of Dan Rogerson Dan Rogerson The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

I am grateful for my hon. Friend’s intervention. I am rarely accused of being lovely, but it is kind of him to say so. [Hon. Members: “Aah.”] Is it not nice to have such sympathy from Committee members, Mrs Riordan? His point is on proportionality. The key point in that regard is the process of disengagement with the Environment Agency, when the discussion of what is acceptable occurs. In some parts of the country, we have internal drainage boards, which do such work collectively. In other cases, the work could expand or IDBs could come into being if there is a big catchment area. What is crucial is the process of discussion with the Environment Agency as it withdraws.

We have to be clear that we are talking about the cost of maintenance outweighing the benefit of having that defence at the taxpayers’ expense.

Photo of Neil Parish Neil Parish Conservative, Tiverton and Honiton

It is a question of whether the Environment Agency will allow that to happen. That is one of the problems. Very often, it specifies an expensive scheme and there does not seem to be any way around it. It all very well to say, “No, there will be negotiation,” but who will negotiate?

Photo of Dan Rogerson Dan Rogerson The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs

I understand what my hon. Friend is saying. He says, “very often”, but I am yet to be persuaded that there is enough of a case that we would need to legislate—that is not to say that the matter will not be dealt with in future. That was the point of the intervention by the hon. Member for Dunfermline and West Fife, and the ongoing discussions with the body that represents landowners.

The Environment Agency has a protocol for the maintenance of flood and coastal risk management assets and, using that, should ensure that all parties that have an interest in the future management of a particular structure have the opportunity to engage in the process. I strongly encourage the development of partnerships and working arrangements between local parties to guarantee future maintenance where appropriate, which would prevent such a problem arising. I am saying to my hon. Friends the Member for Tiverton and Honiton and for Brecon and Radnorshire, who proposed the new clause, that we have to be sure that, in legislating,  we are doing things proportionately. We need to see evidence that the problem requires a solution before we jump to legislate.

The Government believe the courts should continue to consider the facts of a particular case and the extent to which neighbours owe a duty to each other, rather than us using regulations to limit the liability if owners breach that duty and cause their neighbours harm. A wide range of circumstances could occur, ranging from a garden becoming waterlogged to the flooding of many buildings and loss of life. There may also be complications to resolve when, for example, the defence is owned by one or more landowners or there are a number of different beneficiaries.

I must emphasise that many river defences have been in place for a long time. The Environment Agency and its predecessors have used public money to maintain defences, and may have done so for some considerable time. Nevertheless, the role of the riparian or defence owner has not changed, and the fact that they have benefited from the actions of the Environment Agency in the past does not mean they will continue indefinitely.

The Department will continue to talk with the CLA about its concerns that underlie the new clause. However, I do not consider that a case has yet been made for legislation and therefore urge my hon. Friend to withdraw his new clause.

Photo of Roger Williams Roger Williams Liberal Democrat, Brecon and Radnorshire 2:15 pm, 17th December 2013

I have listened carefully to the Minister and I am pleased that he and his Department are engaging with representatives of land-owning interests. I look forward to those negotiations continuing and, if possible, to legislation coming forward to ensure greater certainty. I would welcome that, because as my hon. Friend the Member for Tiverton and Honiton has said, the last thing wanted is to end up in court, with money being wasted on legal issues rather than flood defences. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.