As the waters recede from floods that have covered much of this area, farmers are surveying damaged crops and assessing their losses. For many, the options do not include insurance claims which often exclude flooding and “Act of God”. Some light, however, may be seen at the end of the tunnel in view of recent statements from Government. We all look forward to more details. The National Farmers Union are organising meetings to assist Members in completing claim forms and have representatives of RPA, Environment Agency, Natural England and a local Authority on hand to answer questions at such meetings.
For some, the flooding is an Act of man rather than God and the courts, via the Upper Tribunal (Lands Chamber) have recently stated that compensation should be paid. In a recent landmark case, an East Riding farmer, backed by the National Farmers Union and represented by Crombie Wilkinson solicitors of York and John Bates of Counsel, secured compensation under the Land Drainage Act 1991 (LDA 91) for the part of his carrot crop that was destroyed by flood water being pumped by the relief agencies into a stream running next to his land. It was accepted that the agencies acted appropriately to prevent or relieve greater damage and hardship to homes further upstream, after the stream (an ordinary watercourse) burst its banks over the Christmas holiday period in 2012 but without the intervention of man, this particular portion of the crop would not have been lost.
The findings have implications, as it will allow those who suffer a loss when land is flooded in an effort to relieve others, to claim compensation from the lead local flood authority. This is a factor that will have to be considered in future flood management and budgeting. Compensation is only available under the LDA 91where the loss is caused by an act on the part of the lead flood authority. It is not available where the authority does nothing.
There are other scenarios where claims may be brought against land owners for flooding which would not have occurred had nature been left to its’ own devices. Most notably, this is where culverts have been allowed to block or are inadequate for the volume of water faced or where landowners have impeded the flow of natural waterways with rubbish or diverted it. All good reasons to make sure where you are a land owner responsible for such culverts, dykes or drains that they are kept running clearly and freely to avoid such issues.
With all these instances, however, the difficulty is likely to be working out how large the natural flood would have been but for the intervention of man where there may have been some natural flooding in any event. For this, there will be a growing industry of science and computer programmes to calculate the answer.
For more information about this case and for advice, please contact Emma Morris on 01904 624185.