11 March 2021 | Comment | Article by Alexander Howells

Opening the floodgates: does the Environment Agency owe a duty of care?

Alex Howells, an Associate in the Insurance and Recoveries team, considers the judgment recently handed down by Mrs Justice O’Farrell in Anchor Hanover Group & Ors v Arcadis Consulting (UK) Limited & Ors [2021] EWHC 543 (TCC).

The claim arose out of a flood in Bicester, Oxfordshire on 23 and 24 December 2013 which caused damage to a sheltered housing building.

Background

In March 2007, a planning application was submitted to Cherwell District Council for the development of a supermarket to the east of the Claimants’ property (“the Works”). The Works included diversion of a stretch of River Bure known as Town Brook through a newly constructed open channel and culvert.

The Works were subject to a flood risk assessment (“the FRA”), including hydraulic modelling, carried out in or around 2005, which the Environment Agency (“EA”) had considered and described as “robust”. The FRA included the proposed diversion and existing Town Brook, concluding that water would remain “in-bank” during a 1 in 100-year flood event in either case.

The modelling carried out for the FRA did not originally include a trash or security screen over the mouth of the culvert but one was subsequently added (“the Trash Screen”) to construction drawings for the Works.

As the Works included diversion of a main river, consent was required from EA before the Works could proceed. EA provided its consent to the Works in October 2007. In September 2009, Cherwell District Council (“CDC”) granted planning permission for the Works subject to numerous conditions, including that the final design of the Trash Screen was to be approved by EA.

Discussions subsequently took place between the developer’s agent, EA and Oxfordshire County Council regarding design of the Trash Screen. Despite its reservations that the Trash Screen’s bar spacing was not large enough, EA recommended discharge of the relevant planning condition.

In December 2013, during a period of heavy rainfall, the newly diverted Town Brook burst its banks resulting in flooding to the Claimants’ property. The Claimants alleged that the Trash Screen became blinded by debris restricting the flow of water into the culvert.

Proceedings were issued by the Claimants against five parties involved in the design of the Works, including EA, alleging that the flood was caused by poor design and inadequate maintenance of the Trash Screen.

The Claimants’ claimed EA was negligent in accepting hydraulic modelling which did not originally include a security or trash screen over the culvert, approving the design of the Trash Screen, recommending discharge of the relevant planning condition and failing to maintain the Trash Screen.

EA’s application

In July 2020, EA issued an application for an order that the Claimants’ claim be struck out and / or that summary judgment be granted.

EA submitted that:

  1. it did not owe any duty of care to the Claimants.as it was acting in accordance with its statutory functions:
  2. there was no authority in which the courts have confirmed that EA owes a duty of care in the performance of its statutory functions. By analogy, the closest authorities are those relating to planning authorities which have held that those authorities generally owe no duty of care to individual members of the public or private bodies.
  3. on the facts, the Claimants could not establish that EA had voluntarily assumed responsibility for the design of the culvert or Trash Screen.

The Claimants submitted that, among other things, it was not appropriate for the Court to strike out the claim against EA or to grant it summary judgment without having available the full facts, which would only be available at trial following disclosure and exchange of evidence by all parties to the litigation.

The decision

O’Farrell J found that EA would not owe a duty of care for acting merely in the exercise of its statutory duties. However, EA’s involvement in the hydraulic modelling used in the design of the culvert and Trash Screen arguably went beyond its statutory duties and powers and, in those circumstances, EA’s involvement could be such as to impose a common law duty of care to the Claimants.

The court also found that it was not able to exclude the possibility that EA had assumed responsibility for maintenance of the Trash Screen without having available all the relevant evidence relating to EA’s involvement in maintenance activities.

In light of these findings, the court determined that it was not in a position to conclude that the claim against EA was bound to fail and that the Claimants’ statement of case disclosed a cause of action with a real prospect of success. The court therefore dismissed EA’s application for strike out and / or summary judgment.

Comment

O’Farrell J’s judgment clearly indicates that EA can in appropriate circumstances owe a duty of care to potential claimants but, as ever, each case will turn on its own facts.

This decision will be of interest to those involved in claims against public authorities concerning the exercise of their statutory functions and may prove a helpful guide to the courts’ approach in such cases.

Hugh James is acting for the Second to Seventh Claimants and their home insurers in this matter.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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