Simon Ellis says the causes of floods should be examined so as to allow actions for damages.

As we approach the 12-month anniversary of the extensive flooding that occurred in 2007, insurers must be wondering whether a repeat of last summer might be on the cards. With the current squeeze in the economy and the collective tightening of belts across the UK, the industry may need to consider a different approach when considering flooding claims and, in particular, the prospects for recovering their outlay from a third party after meeting a claim for flood damage.

According to figures from the Met Office, the levels of rainfall across the UK in 2007 were somewhat erratic. The rainfall in the North, for example, was 30% of the average for the time of year in April. For June it was 280%. The corresponding figures for Scotland are 65% for April and 130% for June.

The general trend for 2008 is that there has been higher than average rainfall, although the levels vary across the UK. Rainfall is only one of several factors to be considered when assessing flood risk, making this an art rather than a science. So what steps can be taken to minimise the overall sums paid out due to flooding claims?

Where flooding occurs from the sea, a river or waterway, the courts have stated that the encroaching water is the “common enemy” of all landowners. Each is responsible for protecting his land from flooding. If householder A builds a wall to protect his property from flooding, causing flooding to householder B, B cannot bring an action for the damage caused against A. The courts will expect B to take similar steps to defend his property from flooding.

However, if A suffers flooding to his land and deliberately discharges the waters on to B’s land, A will be liable for doing so. This apparently fine distinction may allow the insurer to recover their outlay from A.

Similarly, while landowners are permitted to protect their land from flooding, they are not permitted to impede the watercourse itself. If obstructions are placed in a river and this leads to flooding, the party responsible for obstructing the watercourse will be liable.

Culverts may be constructed in order to drain water from land, or to channel an existing water course. Building culverts to drain water already on your land to that of a neighbour will render you liable for any damage caused.

“The local authority must consult the Environment Agency about the flooding risks of a proposed development, but it can ignore its advice when granting planning permission.

Simon Elllis

If a landowner constructs a culvert along a river or stream, they are responsible for ensuring the culvert is maintained and capable of conveying the flow, even in times of high rainfall. Where the culvert becomes blocked, or where the volume of water increases, such that the culvert can no longer cope, the landowner will still be responsible for any flooding caused.

What if the landowner did not know (and could not reasonably have been expected to know) of the existence of the culvert? This may occur where land is sold by the party that constructed the culvert. The courts have said this does not provide a defence to a claim for subsequent flooding. The purchasing party adopts the culvert and all liability arising from it.

Striking an acceptable balance between the need to build new housing, particularly in the South East and the need to minimise the risks of those properties being flooded has proved difficult. Some development on floodplains is inevitable; there are large areas of the UK where housing was built on floodplains many years (even centuries) ago and where flooding has not been a major problem. However, as more and more development takes place on floodplains it is equally inevitable that the number of properties affected by flooding will increase.

Can a developer build on a floodplain with impunity? Developers must obtain planning permission from the local authority for a development. The local authority, in turn, must consult the Environment Agency about the flooding risks associated with the proposed development. However, the local authority can ignore the advice of the agency when granting planning permission. While the Secretary of State can call in the application and overrule the decision of the local authority, this is uncommon.

Providing the relevant consultations have taken place, it will be difficult to bring an action for recovery against the developer on the basis that the development should never have taken place.

The days where insurers paid out on a major flood without questioning the causes of that flood are long gone. However, the industry has still been slow to fully investigate the prospects for recovery after flooding events. With flooding becoming a common feature of the British weather and an ever more thorny problem for the industry, this approach cannot be sustained. The insurers that actively investigate and pursue recoveries will be best placed to weather this particular storm.

Simon Ellis is a senior associate at Hugh James Solicitors.