Legislation brings a flood of changes
It has been a long time coming, but finally Flooding Reinsurance, or Flood Re, has come into effect.
From April, 2016, Flood Re will help private householders obtain affordable flood insurance with cover at a set price. Key things to be aware of are:
• Flood Re is a not-for-profit fund, owned and managed by the UK insurance industry. It is funded through an annual levy of £180m on UK homes insurers which will equate to about a £10 levy on all UK home insurance policies. Flood Re also has its own reinsurance policy in place to ensure it will be able to cope with significant or multiple flood events.
• Insurers using Flood Re will need to adhere to capped premiums for their customers, set by reference to the Council Tax band of the property and rising in line with inflation.
• The scheme will not cover commercial property or mixed use property.
• The scheme will not cover all types of domestic properties; it does not cover leasehold flats, buy-to-let properties, and properties built after 1 January 2009.
• Tenants in let properties will be able to buy contents cover.
• More information can be found in The Flood Reinsurance (Scheme Funding and Administration) Regulations 2015 (SI 2015/1902) here.
From April 6, 2016, flood defence works have been brought within the Environmental Permitting Regime.
New “Flood Risk Permits” will replace the old system of flood defence consents under the Water Resources Act 1991, and consents for land drainage and sea defence under by-laws.
A standard rules permit will be available in many instances but there some activities are excluded from the requirement to obtain a permit and a number of other activities which can be carried out under a registered exemption. For example,
• Exclusion: carrying out of certain minor works on or affecting bridges and culverts for highways and public rights of way are excluded from the requirement to obtain a permit.
• Exemption: following a pilot earlier this year, operators will be allowed to dredge a maximum of 1.5km of man-made ditches, land drains and agricultural drains without a permit, subject to certain conditions to protect designated sites and sensitive waterbodies.
More information can be found on the Environmental Permitting (England and Wales) (Amendment) (No. 2) Regulations 2016 here. The Environment Agency and Natural Resources Wales intend to issue full guidance on Flood Risk Permits later this year.
The recent case Robert Lindley Limited V East Riding of Yorkshire Council highlights the importance of local authorities understanding their duties in relation to flooding and being pro-active in dealing with flood risk.
In this case, the local authority was held liable for damage to crops caused by an operation to pump floodwater out of a neighbouring village and into a stream. Pumps were arranged by the Environment Agency but then left for the local authority to oversee. The stream overflowed and damaged crops in a field. The local authority had assumed that the Environment Agency remained responsible as it had procured the pumps in the first place.
The Lands Chamber disagreed and held that the local authority had been responsible because it was acting under its powers in the Land Drainage Act 1991 to reduce the level of water in the village, whereas the Environment Agency was merely providing assistance under the Flood and Water Management Act 2010. Key to the Chamber’s decision was its finding that the local authority had failed to carry out its duty under the Flood and Water Management Act 2010 to investigate who the relevant risk management authorities were and what role it was fulfilling.
This case follows the important decision of the Court of Appeal against Rochdale Metropolitan Borough Council in 2010. In that case, although the flooding had been caused by a developer blocking a culvert, the Court of Appeal held that the local authority was under a common law duty of care to assist, which included allowing others to have access to the land, co-operating with any relief works and possibly even carrying out some of the works to its own land in order to alleviate the nuisance.
Partner - Head of Rural Division
Tim is head of the firm's Rural Division and of the Cambridge office, although he spends a considerable amount of time in London. He has over 20 years experience in advising institutional and pri...