[2023] UKUT 201 (LC)

Mr Bates opened the compensation claim with a discussion of Rooke’s Case (1597) 5 Coke Reports 99b, which he said establishes that it is wrong for one person to bear responsibility for protecting a number of other riparian owners from flooding. The burden should be shared. Therefore, it was argued, the Agency’s withdrawal from its mills programme (see paragraph 19 above) was wrong in law, and it was put to Ms Manning in cross-examination that the programme was initiated without consultation and was driven by lack of resources. The claimant’s view is that the Agency should continue to maintain the river banks and control the operation of the sluice gate at Langley Mill as it has done in the past.

This was a puzzling argument. A challenge to the withdrawal from the mills programme on procedural or legal grounds could only have been made in the Administrative Court by way of judicial review. The relevance to the compensation claim of the argument about the withdrawal of the programme is not immediately obvious, since the basis of that claim is that the works done in 2001 were defective and have caused damage.

It may be that the argument was made in order to bolster the claim in nuisance, which requires a wrongful interference with the claimant’s use or enjoyment of land. Or it may have been intended to head off one aspect of the Agency’s response to the compensation claim, which is that the erosion could have been avoided had Mr Gould managed his sluice gate properly.

Whatever the intention of the argument, we are not persuaded by it. We see no substance in the argument that the withdrawal from the mills programme was unlawful. The Agency has no statutory duty to control the flow of water through the mill or to keep the river banks in repair; Mr Bates did not suggest that there is any such statutory duty, and as we saw in paragraphs 6-7 above the Agency’s statutory duties are far more general and certainly do not extend to the management of mills or the maintenance of riparian properties. It appears that the Agency has gone beyond its statutory duties in the past and no doubt when Mr Gould bought the mill he hoped it would continue to do so, but the Agency’s past actions do not change the legal position and the Agency is perfectly entitled to cease to do things it is not obliged to do.

Rooke’s Case is of no assistance to Mr Gould. It concerned a liability to taxation imposed by the Commissioners of sewers who had authority pursuant to the statute 6 H. 6 cap 5 (meaning the fifth statute of the sixth year of the reign of Henry VI, 1428) to impose a levy for the repair of riverbanks. The plaintiff brought an action claiming (among other things) that he should not bear a tax liability as a riparian owner when his neighbours, whose land was also “subject to drowning, if the said bank be not repaired”, did not. He was successful; the Court of Common Pleas stated that “the commissioners ought not to charge him only with the whole, but ought to tax all who had land in danger.” The decision turned on the words of the statute (“for the statute … has precise words in the said commission, that no person of any estate or condition shall be spared”). No principle of common law was involved and none was established.

A case about the construction of a fifteenth century taxation statute, long repealed, has no relevance to the present case and has no bearing on the liability of the Agency under statutes now in force or pursuant to the common law.

For all these reasons we regard the argument about the withdrawal from the mills programme as irrelevant to Mr Gould’s claim. For the same reasons, his statement at paragraph 10 of his witness statement dated 15 November 2022 that the Agency “is responsible for controlling the flow of water through the mill” is incorrect. So is Dr Brookes’ assertion that the Agency has “specific responsibilities” for the operation and maintenance of the main river channel and the side channel (paragraph 20 of his report). The covenant by the Agency in the Deed requires it to operate and maintain the sluice-gate and maintain any works it might install (such as the side weir) if it considers it “necessary and desirable” to do so, but that does not detract from Mr Gould’s own ability and responsibility to control the flow. Nor does it detract from the common law responsibility of riparian owners such as Mr Gould to their neighbours; they will be liable in nuisance if they cause flooding or other disturbance to other landowners for example by opening or closing sluice gates, or by the way they manage vegetation.

As the owner of a mill Mr Gould does have one special right at common law, namely to the “accustomed flow of water”, described in Roberts v Gwynfrai DC [1899] 2 Ch 608 by Linley MR at 612 as follows:

“The right of the plaintiff as the owner and occupier of his mill is to have the water flow down the stream, which has its origin in the lake, in the accustomed way. That right is subject to the rights of the other riparian proprietors higher up the stream; but, subject to those rights, there is no right whatever to alter the flow of the water in its old accustomed way. If it is said that the alteration of the old flow is an improvement, that is a matter of opinion. There is no right to interfere with the accustomed flow of the water.”

We shall have more to say about that right shortly.

Section 165 of the Water Resources Act 1991 provides the Agency with a general power to carry out works relating to flood defence and drainage. The version of s.165 in force in 2001, gives the Agency power in relation to a main river:

“1 (a) to maintain existing works, that is to say, to cleanse, repair or otherwise maintain in a due state of efficiency any existing watercourse or any drainage work;

(b)

to improve any existing works, that is to say, to deepen, widen, straighten or otherwise improve any existing watercourse or remove or alter mill dams, weirs or other obstructions to watercourses, or raise, widen or otherwise improve any existing drainage work;

(c)

to construct new works, that is to say, to make any new watercourse or drainage work or erect any machinery or do any other act (other than an act referred to in paragraph (a) or (b) above) required for the drainage of any land.”

The Agency accepts that in carrying out the 2001 works, it was relying on its permissive powers under s.165 in addition to its contractual obligations under the Deed.

Section 177 gives effect to Schedule 21 to the Act, making provision for imposing obligations as to the payment of compensation in respect of the exercise of powers under s.165, among others. Paragraph 5 of Schedule 21 provides:

“(1)

Where injury is sustained by any person by reason of the exercise by the appropriate agency of any powers under section 165(1) to (3) of this Act, the appropriate agency shall be liable to make full compensation to the injured party.

(2)

In case of dispute, the amount of any compensation under sub-paragraph (1) above shall be determined by the Upper Tribunal.”

It is common ground that in order to obtain compensation under paragraph 5, a claimant must show that what they complain of would otherwise be actionable as a tort. The tort alleged here is nuisance, which is a wrongful interference with another person’s use or enjoyment of their land. The claim here is founded on the allegation that the works done in 2001 were defective; the effect of the Limitation Act 1980 is, it is agreed, that if a nuisance is proved the claimant can claim compensation only for damage that has occurred since 2016 (the claim having been issued in 2022) and for future damage.

That, then, is the common law and statutory background to the compensation claim, to which we now turn.