Coastal erosion: can property-owners secure protection for their homes?
Sudden and dramatic storms around the coast of England and Wales pose serious risks to property-owners in low-lying areas from erosion of the shoreline.
Where sea defences have been breached, wide areas of hinterland become at risk of being inundated by flood waters. Once it has breached part of local sea defences, the sea can make dramatic progress against beaches, groynes and much more sophisticated structures. The engineering works required to keep out the sea can be hugely expensive and take time to plan and construct.
This Summary explores the remedies which may be available to coastal property-owners who are at risk of flooding by reason of coastal erosion. If there are a number of affected properties, can this make any difference? If the worst happens, then what are the prospects of the recovery of compensation?
Given that this constitutes a Summary, it cannot pretend to offer conclusive solutions to particular areas. However, it does aim to identify the key ‘pinch-points’, and it suggests a tentative way forward where the local risk-management aim for the coast in question is one of ‘hold the line’. It may also be useful for those who occupy properties in cliff areas and who are at risk of the effects of coastal erosion. Holbeck Hall was one such case, where compensation was sought under the ‘measured duty of care’ principles relevant under the law of nuisance (see further below).
Statutory and Environment Agency responses
Following the floods of summer 2007, the Pitt Review led to proposals to reform flood risk management issues by way of the Floods and Water Management Act 2010. In turn, the 2010 Act made changes to the Coastal Protection Act 1949.
Post-Pitt we have been left with an extremely sophisticated and detailed regulatory scheme which is intended to monitor the risks of coastal erosion, but at the same time to preserve and protect the coastal environment. Development (which may require flood defences or works of maintenance and repair) is likely to engage a battery of statutory regulation, including those giving effect to the SEA Directive and the EIA Directive. A marine licence may be needed for any such development in addition to planning permission, and there may be consequential habitats implications.
On 25 September 2020, the Environment Agency published a consultation response for the purposes of developing a Strategy for Flood and Coastal Erosion Risk Management, a requirement of the 2010 Act. The Environment Agency has described this Strategy as “the lynchpin of the wider legal framework for managing flooding and coastal change in England”. This is because the relevant risk management authorities are required to act consistently with the Environment Agency’s strategy.
Claims in nuisance
Before turning to the position of public authorities in the eye of these legislative complexities, it is worth looking at the possibility of claims in nuisance.
The law of nuisance has traditionally been the means most likely to provide a remedy in the case of flooding, where a person has caused or brought about a flood risk which did not previously exist, albeit generally by way of compensation. Coastal erosion, however, generally involves some failure to take steps to avert property damage. The law of England and Wales has always been cautious to step in in such circumstances and to condemn a property owner for failing to come to the other party’s aid.
The common law did not recognise any private obligation to prevent damage from acts of nature prior to Sedleigh Denfield v. O’Callaghan in 1940, a case which radically altered the law of nuisance by imposing a measured duty of care within the nuisance regime. The most recent attempt of to obtain significant compensation on this basis in the context of coastal flooding was in Holbeck Hall v. Scarborough DC (2000), in which the claimants argued that the local authority, as landowner, had either continued or adopted a nuisance when it failed to shore up the cliff area on the top of which their hotel was housed. The Court of Appeal considered that the claimants were expecting too much of the defendant in the circumstances: this was a measured duty of care and its scope was not so extensive as the claimants had argued.
The application of the rules governing the measured duty of care to the facts of Holbeck Hall was not made more complex by reference to any detailed statutory scheme such as those which govern the risk of coastal erosion. In the Victorian and immediately post-Victorian era public bodies were subject to the same private law obligations as other people, the question being only whether the proper interpretation of a statute altered the focus of the common law. After a lengthy period during which claimants have sought to demonstrate that common law obligations can be fashioned out of statutes, it can be said that we have been put back on the former track by the Supreme Court in N v. Poole BC (2019).
The consequence of this, in the case of coastal erosion, is that when the main private law allegation is that a defendant has failed to take steps to avert the risk of flooding by reason of coastal erosion, claims in nuisance are best left to those cases (such as Holbeck Hall) in which the defendant is either some private entity or a public entity operating in its entirely private capacity. The risk for a claimant is that a defendant public body succeeds in showing that the claimant has been trying to get more that it would be entitled to by reason of the relevant legislation (for instance that the claimant is really trying to enforce what are no more than discretionary powers).
Even if a defendant in its private capacity has brought about some positive act, the result of which has been damage by way of coastal flooding, then the defendant might still be able to have resort to the defence of the ‘common enemy’. This is a complete defence which applies where a party has taken reasonable steps to protect its own land from flooding (for instance by adding a new groyne), but, in so doing, has diverted flood water elsewhere on to another’s property.
The clearest route for a claimant, then, is where a defendant has done some positive act which has caused damage (such as by damaging flood defences). However, in all types of coastal flooding cases, the practical issues may be as daunting as are the legal intricacies. For instance, there may be difficult factual issue as to the identity of the party responsible (the law in this area resorting to various presumptions of ownership), and the expert evidence may be complex and prohibitively expensive.
In the contemporary context of the financial difficulties faced by local authorities, even they, anecdotally, are becoming reluctant to honour the basic obligations set out in statute. Stories emerge of local authorities which assert that they have no obligation at all to help property-owners who are subject to flooding by reason of coastal erosion.
As to the legal framework which is intended to deal with coastal flooding, an outline must suffice. The legislative provisions themselves are not particularly detailed, but, rather, they leave a skeletal framework which is filled in by non-statutory polices, practices and procedures. This leads to difficulties in understanding who has responsibility for the final arrangements to be made on the ground, not only by persons who are likely to be affected, but also by the bodies intended to have ultimate legal responsibility. The potential financial liabilities are likely to be very significant in these cases, especially where large scale works are required and where many people are like to be affected by a failure to take action.
The Floods and Water Management Act 2010
The Floods and Water Management Act 2010 provides for coastal erosion risk management functions. Whilst this Act provides extensive powers to carry out physical works, its main function is the requirement on the part of the EA to establish a coast erosion risk management strategy. It also requires lead local flood authorities to develop an equivalent local risk management strategy. Section 22 requires the EA to establish Regional Flood and Coastal Committees which must be consulted as to regional strategies. Section 6 contains an all-important provision allowing for the EA to make grant-funding available.
The Coast Protection Act 1949
The Coast Protection Act 1949 (as amended) contains more detailed practical provisions allowing coast protection authorities to manage local coastal risks. Coast protection authorities in this context are the councils of “maritime authorities”, being district, Welsh County or borough council which adjoin the sea.
Under the 1949 Act (as amended), coast protection authorities have powers to propose and undertake schemes for the carrying-out of coast protection work, and if they have sufficient time to ensure that such a scheme is up and running, they can also demand financial contributions from those who are to benefit. They have separate powers to require maintenance and repair works to be undertaken by landowners, as to which they can also recover the costs.
The lead-in time required to plan and instigate coastal defence works is of significance. If there is no time to propose and conclude a detailed scheme of defence works under the Act, then it is unlikely that a contribution can be levied. Parliament does not appear to have granted a coast protection authority the power to undertake flood defence works with the power to demand a contribution other than in the case of those provided for by the making of a detailed scheme of works, or by works of maintenance and repair. Indeed by section 5(6), if any flood works are required but they are required “urgently necessary”, then they can be done “without the [safeguards and other provisions] of this section having been complied with”. There is a lacuna between the orderly making of a scheme or a programme of repairs (at one extreme) and the execution of flood works which are “urgently necessary”. What of the results of sudden coastal erosion one winter which need to be mitigated before the onset of the next? These may not be “urgently necessary”, but, on the other hand, they will have to be devised, programmed and implemented within a reasonably quick time-scale.
Shoreline Management Plans
As to the practical considerations flowing from these various statutory provisions, the coastline is divided into 22 non-statutory Shoreline Management Plans (SMPs themselves having been in existence since the 1990s); DEFRA guidance on SMPs now runs to over 400 pages. An SMP is divided into ‘cells’ and ‘sub-cells’, the policy aims for each sub-cell being directed towards one of four options: “advance the line”, “no active realignment”, “managed realignment” and “hold the line”. Recommendations for prospective action in respect of an SMP are made by the relevant maritime local authorities under the direction of a lead local authority, which may not be the same as the local authority with the statutory powers available under the Coast Protection Act 1949.
The practical consequences of the requirement of cooperation which is built into the 2010 Act, will inevitably take time to work themselves out when it comes to taking steps to devise first the aims, and then the specific programmes of any flood defence works, which should apply across the cells of an SMP. Even an initial appraisal document, which may be produced by an external consultant may well run to hundreds of pages.
It will be apparent from the preceding summary of the relevant law, that under the Coastal Protection Act 1949, most statutory provisions which might be of benefit to those who live or work along the coast (but not all of them), consist of discretionary powers available to the decision-makers. For hard-pressed local authorities, this may immediately suggest that since they are discretionary in nature, they do not need to be invoked. They may also be anticipating that there will be little risk of anything like a mandatory order compelling a coast protection authority to exercise its discretion in a person’s favour.
A coast protection authority thinking along these lines should exercise caution. Apart from the obvious starting-point that the decision-maker should give full consideration to the specific factors relevant to its decision, where the relevant policy direction under the SMP is one of “hold the line”, there are compelling reasons for supposing that the authority should exercise its powers so as to achieve this aim. There is little point in a collection of maritime local authorities, with the support and guidance of the EA and the Regional Flood and Committee Group, devising a complex (and expensive) SMP, only for the key authority with the relevant powers not to give effect to the aim of “holding the line” on a particular cell or sub-cell.
Moreover, the same coast protection authority will have the relevant organisational skills necessary to ensure that the policy aim of “hold the line” is achieved and dangerous coastal erosion remediated. It will be able to make the right application for the Grant-in-aid Funding which will be needed, and it is in a position to liaise with the various public (and other) bodies whose assistance will be needed. The local coast protection authority will also have the skills necessary to manoeuvre a way through the various planning and environmental regimes. Where there are many potential beneficiaries, then one organisation will be needed to coral their interests.
Above all, and especially where there are multiple beneficiaries, there is unlikely to be a single person who has the power or resources to undertake the physical works which may be necessary to avert the risk of flooding. It might even be said that a failure to exercise the powers available under the 1949 Act would only frustrate the aims of the 2010 Act and the machinery carefully put in place following the widespread flooding of 2007.
Flood risk management in the context of coastal erosion has become an activity of great sophistication subsequent to the process of reform put in place as a result of the Pitt review. Risk management properly merits all the resources and strategic planning possible by the numerous connected public organisations who are now engaged. However, the practical requirements of the sudden and dramatic coastal events which are experienced today cannot always be met by the statutory schemes and organisations, the true function of which is to meet the challenges of longer-term risk.
For those property-owners who may be affected by sudden incidents of coastal erosion and the real risk of flooding, obtaining a remedy by means of civil courts is a difficult process. The courts are wary of placing obligations on persons who have failed to take steps to deal with acts of nature. Public law routes are the most obvious means for recourse.
Where risk management bodies have carefully delineated the aim of coastal planning as “hold the line”, there are compelling reasons to think that the powers available under the Coastal Protection Act 1949 need to be exercised so as not to frustrate this aim. There are likely to be substantial interests at stake (including those of property insurers), and the real question will be whether coastal protection authorities are able to act with sufficient flexibility under the current statutory regime. In some cases, coastal erosion will have dramatic consequences if it is not dealt with promptly, and before any more significant works become “urgently necessary” under the emergency powers which exist as a last resort.