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Stopping the tide – a lesson in getting it right?


Roger and Suzanne Brookhouse v The Environment Agency [2023] UKUT 00282[KB1] 

This decision grabbed my attention because it involved a successful claim against the Environment Agency for damage caused to a property by their works and because of the poetic opening to the judgment:

“In 1520 King Henry VIII stood at the window of the building now known as The King’s Lodging in Sandwich to review his fleet before setting sail for the Field of the Cloth of Gold. From the same window today the most striking feature is the wall between the property and the River Stour built by the respondent, the Environment Agency, as part of the Sandwich Town Tidal Defence Scheme. The claimants, Mr and Mrs Brookhouse, are the owners of The King’s Lodging and they say that their property has been damaged, and will continue to be damaged, by raised groundwater levels caused by the respondent’s works. They seek compensation under the Water Resources Act 1991”.

The legal basis for the claim was the Water Resources Act 1991 and flood defence works conducted by the Environment Agency pursuant to Section 165. Where damage is sustained to a property as a result of such works, the Act allows the recovery of compensation. Where there is a dispute, the amount of compensation is to be determined by the Upper Tribunal.

The Claimants owned a historic property close to the River Stour. They alleged that work conducted by the Environment Agency to construct a new tidal wall begun in 2014 caused damage to the claimants’ property by causing the groundwater levels to rise.

The Environment Agency argued  that the condition of the claimant’s property had not deteriorated as a result of the works and that any problems with increased groundwater levels would not recur. They contended that the rise in the groundwater levels were not caused by their works, but by other matters.

The Building Surveyors and Structural Engineers instructed agreed that it was possible that some of the structural damage to the property may have been caused by increased moisture levels in the groundwater. Based on this evidence the tribunal concluded that if the groundwater levels had risen due to the works, then the claimants’ case on causation would succeed. The case therefore turned on the evidence of the expert witnesses on hydrology.

The tribunal concluded that on a balance of probabilities the groundwater levels at the claimants’ property were significantly lower before the works by the Environment Agency than after. No explanation was offered as to why those levels may have increased other than as a result of the works by the Environment Agency. The tribunal also found that the problems caused by the raised groundwater would be exacerbated in the future by extra-high tidal inflows as sea-levels rose.

Whilst this case is specific to its facts, it does show that where the actions of the Environment Agency can be shown to have caused damage there might be a route to recovery pursuant to the Water Resources Act. It is also an example of how the flooding of properties located close to tidal rivers will increase with global warming. It remains to be seen whether this decision will deter the Environment Agency from undertaking similar preventative works to protect properties in similar locations.

Matthew Rogers

Matthew Rogers
Property Risks & Coverage

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