Climate change threats for land owners and occupiers

The increase in flooding, both globally and on a local scale, highlights the impact of climate change. We have seen recent devastating flooding across vast swathes of Australia, covering an area the size of France and Germany, and 2007 saw similar severe global flooding. Professor Ian Crute, Chief Scientist of the Agriculture and Horticulture Development Board, recently advised that greater frequency of storm events and localised flooding would be a natural consequence of climate change. So what steps can be taken to deal with the issues associated with flooding?

Properties affected by flooding can be severely damaged, although often such damage is an insurable risk. Where a property is affected by flooding, notifying the insurer can result in a dramatic reduction in the property value, yet you should notify your insurer as failure to do so can invalidate an insurance policy.

I have received instructions from numerous property owners in areas characterised by heavy clay soils where surface run off, exacerbated by frequent storm events and the move away from grassed front gardens, results in significant flooding. This can be worsened by failure to maintain watercourses and even poorly considered improvement works, which can simply move flood risks downstream. Also, in the absence of prime development sites, properties are being built in areas known to be at risk of flooding.

The consequence is that flood risk is becoming an increasingly expensive issue, with some insurance companies allocating it as uninsurable.

One flooding solution is covered by the Land Drainage Act. Landowners can apply to the Agricultural Land Tribunal using the Act to oblige landowners responsible for flooding to remedy the issue. Independent experts are often instructed by the Tribunal to conduct a site survey of the watercourse and surrounding area, identifying potential solutions. Once the flooding cause and solutions have been identified, the case is often broadened to include additional parties as the scope of causation can be significantly broader.

The Tribunal is often capable of providing solutions to flooding, whether by requiring ground works, on-going maintenance to watercourses or other more creative solutions. While the cost can be considerable, the potential loss sustained by a property experiencing habitual flooding is often significantly greater. The key is identifying the scope of the problem and splitting the cost among parties, and in that sense, legal advice is often vital to avoid over simplification of complex issues.

If you need further information on this common problem, please contact Mark Wrinch on mark.wrinch@birkettlong.co.uk or telephone Birkett Long LLP on 01206 217383.