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Flooding: High Court dismisses human rights claim against the Environment Agency

DATE: 22 Jan 2018

On 19 January 2018 Sir Ross Cranston handed down judgment in King v Environment Agency [2018] EWHC 65 (QB), dismissing the claim.

The claimants own and/or farm land adjacent to the River Severn at Minsterworth Ham near Gloucester that has been flooded on a number of occasions. They claimed that the Environment Agency had adopted a strategy or policy in respect of the flood defence embankments around their land and elsewhere in the area which had increased the flood protection to Gloucester at their expense. They asserted that in adopting that strategy the Agency had failed to assess the burden that was thereby imposed on them and had breached Article 1 of the First Protocol to the European Convention on Human Rights (“A1P1”: protection of property) and Article 14 of the Convention (non-discrimination).

The Judge held that the Agency had had a specific policy against allowing the embankment on Minsterworth Ham to be raised because of the adverse consequences for flooding in Gloucester and an implicit policy of using the claimants’ land for the purpose of flood mitigation in Gloucester. That implicit policy did not, however, constitute “control or interference” with the claimants’ property under A1P1. There had in any event been a fair balancing of the claimants’ rights with those of the general interest, as required by A1P1. As a matter of legal analysis there was no basis for a claim against the Agency under A1P1.  

Nor was there any basis to the additional claim of unlawful discrimination contrary to Article 14 in conjunction with A1P1. Article 14 was not engaged in this type of property case because the claimed discrimination was not on the basis of a personal characteristic (R (Takeley Parish Council) v Stansted Airport Ltd [2007] JPL 126 applied). In any event, there was a clear difference between the claimants’ position and schemes elsewhere in respect of which the Agency had compensated the landowners.

Gwion Lewis and Heather Sargent acted for the Environment Agency. The judgment is available here.