[2023] UKUT 201 (LC)

Mr Gould’s case is that the work done in 2001 was poorly or incorrectly executed (in a number of ways that we explore below) and that as a result too much water flows through the side channel which has been and continues to be eroded and that he has suffered and will suffer the expense of repair to the channel and its banks and of clearing debris.

The Agency’s case, in summary, is that the work in 2001 was carried out competently, using the right materials and making the right choices. The erosion of the side channel has been caused by the natural flow of water which could have been alleviated had Mr Gould operated the sluice gate and met his responsibilities as a riparian owner.

The Agency also says that in any event the landowner in 2001 consented to the work. It is convenient to deal first with that final point because it can be swiftly dismissed. There is no evidence of what Mr Shah agreed to in 2001. There is evidence, as we have seen, that he was content with the plan in February 2001 (see paragraph 16 above). But as Mr Bates points out, in circumstances where the Environment Agency has statutory powers to carry out the work whether or not the landowner consents it is difficult to say that he did so. If the landowner actually requested the work that might well indicate consent sufficient to make it impossible for him or his successor to claim compensation for it, but there is no direct evidence that he did so. Accordingly Mr Gould’s claim cannot be dismissed on the basis that the work was done with the then landowner’s consent, and we turn to look at the substance of the claim.

Mr Gould has to prove the elements of the tort of nuisance: a wrongful act interfering with the claimant’s use and enjoyment of land. Mr Gould said that the weir was constructed incorrectly, and that that caused erosion in the side channel; he also complained that since 2001 there has been a “preferential flow” of water in the side channel and a reduction in the accustomed flow of water under the mill which, if proved, would in itself be tortious being both a wrongful act and an interference. So we look first at the 2001 works, in terms of the design, materials used, the drop from the weir to the channel, and finally the gabion mattress. We then consider whether there has been any change in the flow of water under the mill and over the side weir.

Central to Mr Gould’s case is the argument that the work done in 2001 was badly designed and inappropriate, leading to increased flow over the side weir and increased erosion, because:

In the paragraphs that follow we assess those propositions in turn. We were assisted by the evidence of two experts. For the claimant, Dr Andrew Brookes, who is a geomorphologist, and for the Agency Mr Jeremy Benn who is a hydrologist. Between them, the experts have decades of experience in water matters, as well as a plethora of additional qualifications and Chartered membership of various august bodies, including the Charles Close Society for the Study of Ordnance Survey maps. Both have visited the site, and they carried out a joint site inspection in January 2023.