"There must always be a delicate balance between the rights of the individual and the need of the community at large"
Julie Robinson, Head of Agriculture
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Two 2017 cases are useful reminders of the limits to farmers’ freedom of movement when it comes to the building of flood defences on their land.
In one case we see that land ownership does not give you the right to refuse entry for approved works to be carried out by the Environment Agency; in the next we see that land ownership does not give a general right to do what you want to protect your own land.
These two cases re-inforce the basic principle, encapsulated by Mr Justice Bean in a 1970 Internal Drainage Board case[i], that in a modern civilised society there must always be a delicate balance between the rights of the individual and the need of the community at large.
Freedom to object to flood defences
The first case[ii] was brought by Essex landowners who did not want flood alleviation works to be carried out on their farmland. The works were aimed at reducing river flooding and included the building of a 500 metre long, 5.5 metre high earth embankment and a concrete control structure with sluice gates. The Environment Agency argued that it had a general right of entry under s172 of the Water Resources Act 1991 and could access the farmland and carry out works. The landowners argued that the Agency had no such right and that the only routes open to it were to use its compulsory purchase powers or to apply to ministers for a compulsory works order. The Court of Appeal agreed with the Environment Agency; the Agency had general powers of entry in order to carry out flood alleviation works on land even where a landowner objected to the works being carried out. Compensation was payable whichever powers were used.
“In a modern civilised society, there must always be a delicate balance between the rights of the individual and the need of the community at large….”
(Mr Justice Bean, 1970)
DIY flood defences – take advice first!
The second case also involved an Essex farmer. A tenant farmer and a waste company did a deal which saw almost 4,000 tonnes of construction and demolition waste brought onto the farm and used to re-inforce existing flood defences. The land was within a SSSI and the works were done without consent from Natural England, without a flood defence consent from the Environment Agency, and in breach of the company’s waste exemption which allowed up to 1,000 tonnes of soil and stones to be used for construction purposes. The Environment Agency successfully prosecuted the tenant farmer, the waste company and one of its directors; between them they paid almost £20,000 in fines and costs.
We have a specialist water and flood management team. Please do get in touch with any of us if you have concerns about your rights or if you are planning collaborative ventures to enhance your water security or your flood defences.