Public Affairs
BRIEFING NOTE
Water Bill – House of Lords Second Reading
Date: 27 January 2014
Introduction
With a growing global population, water will be increasingly in demand. For farmers and land
managers, this poses a difficulty; securing the water needed to produce more food and at an
affordable price. Many of the big challenges relating to water will need to be addressed at a
catchment scale by land managers and will involve close integration of all types of water
management including pollution and flooding.
The CLA broadly welcomes the Water Bill and its attempt to bring forward reforms that will make
the water industry more sustainable and resilient in the future.
In particular:

Proposals to encourage the development of non-water company water storage, so
that in the future farmers and landowners who own storage would be able to sell their
water direct to water companies

The introduction of retail competition so that businesses can switch their water
supplier

Provision to allow water companies to put in place sustainable drainage systems

Opportunities to reduce leakage across networks by transferring responsibility for
supply pipes from customers to water companies. However the CLA believes that this
should not happen without landowner agreement.
We are, however, concerned about the provision for regulations requiring and owner or occupier
to give notice of obstructions. Without qualification this could be onerous.
The introduction of a new clause to limit the liability in nuisance for a riparian owner
As a result of funding pressures and changes in flood defence policy the priorities of relevant
authorities have changed in England. The Environment Agency (EA) and other relevant
authorities are withdrawing from long-standing flood defence commitments, which may have
been in place for decades if not hundreds of years. This places landowners who own land
adjoining rivers in an invidious position. If they fail to take responsibility for maintaining such
flood defences - which could run into millions of pounds - they potentially face legal claims in
private nuisance from other adjoining landowners, such as home-owners who suffer loss. They
can claim under the principle in Leakey v NT [1980]. The CLA believes this is hugely unfair.
There should be a provision included in the Water Bill that provides that, in the situation where
the EA or other relevant authority is withdrawing funding for long-established flood defences,
then a riparian owner will satisfy any liability in private nuisance from an affected third-party
Page 1 of 3
landowner if he invites such a party to enter his property in order to carry out necessary upkeep
of existing former flood defences.
What is private nuisance?
Private nuisance may be defined as the unlawful interference with a person’s use or enjoyment
of land or some right over or in connection with it.
What if a riparian owner didn’t mind their land flooding more often?
Historically there has been no liability at common law for a riparian owner (farmer) to improve
river banks to prevent flooding but in Leakey v NT it was established that a landowner should do
all that is reasonable to prevent or minimise a risk that is known or foreseeable where damage
or injury could occur to another person or his property. So there is recognition that there is a
measured duty of care.
Legal opinion suggests that a riparian owner cannot just inform the other property owners that
now the Agency is not doing any further maintenance work they will not be carrying on with it
either. This would leave them open to a private nuisance claim.
How can a riparian owner demonstrate that he has satisfied his duty of care in private nuisance
claims?
When the Agency withdraw the riparian owner would have to invite the other property owners
affected to contribute a proportion of the expense to maintain the river bank and flood bank. If
they refused to contribute then most likely the riparian owner would have fulfilled their measured
duty of care. In this situation the riparian owner could then inform other property owners affected
that that in view of the fact that they were unwilling to contribute they would not be carrying out
any work themselves.
Even if a riparian owner did not want to continue to protect his own property it is likely that they
would also need to permit his neighbour access to his land in order to enable them to carry out
repairs to the flood defence as well as possibly contributing.
Why when the Agency is withdrawing should a riparian owner be forced via the threat of private
nuisance claims to have to provide flood defence to third parties
Because of the nature of private nuisance and the “measured duty of care “there is very little
certainty as to when a riparian owner will have done sufficient actions to protect himself from
liability. This has the undesirable consequence of pitting one property owner against another
leading to litigation. Therefore greater clarity is required in the law to pin down what would
amount to sufficient actions to satisfy the test.
Why would introducing a power to limit liability give clarity?
Because a riparian owner could limit the liability in private nuisance by inviting or allowing others
to maintain the existing defence if they wanted to.
If government don’t introduce powers that can limit liability then it only seems right that the EA
continue to maintain the defences for another 25 years so that house owners are given time to
prepare for and mitigate their own risk.
Page 2 of 3 / CLA Public Affairs Briefing Note the Water Bill – Committee Stage
The Water Bill proposal does not require property owners to take steps to mitigate the impact of
flooding. It creates a pot of funding that will offer affordable insurance to homes at high risk of
flooding. Because a property owner can obtain insurance cover does not mean that a riparian
owner would still not be liable to a claim of nuisance from and individual or an insurance
company.
Amendment to the Water Bill
PART 5
New Clause 76
Liability in nuisance for a riparian owner
To move the following Clause:–
‘The Secretary of State may by regulations make provision to limit the liability in nuisance for a
riparian owner when the Environment Agency or relevant Authority withdraws from maintenance
of flood defences.’
Duty to give notice of obstructions
Schedule 8 paragraph 13 (2) creates a power to make regulations requiring the owners and
occupiers of land to give notice of specified obstructions. Without any qualification, this has the
potential, particularly on larger holdings to be onerous and expensive.
Schedule 8 paragraph 13 (2) line insert at start :Where reasonable
If you need any further information, please contact CLA Public Affairs.
Richella Logan
Director Public Affairs
CLA, 16 Belgrave Square, London SW1X 8PQ
Tel: 020 7235 0511
Mob: 07702 928846
Email: richella.logan@cla.org.uk
www.cla.org.uk
The CLA is the membership organisation for owners of land, property and businesses in rural
England and Wales. We help safeguard the interests of landowners and those with an
economic, social and environmental interest in rural land and the rural economy.
Page 3 of 3 / CLA Public Affairs Briefing Note the Water Bill – Committee Stage