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Developing land near to a watercourse? Beware the powers of the Environment Agency!

27 February 2014

Despite recent extreme weather events, a development site with a view over a watercourse is always likely to be an attractive opportunity. However owning land on the edge of a watercourse can have significant implications for the owner or developer.

The Environmental Agency (EA), the body with primary responsibility for flood risk assessment and management in England and Wales, has a number of powers to impose strict flood protection measurements and ecological enhancing responsibilities on owners and developers of land adjacent to watercourses.

Anyone who owns a property with a watercourse within or adjacent to the boundaries of their property is a 'riparian owner' and must comply with the measures and obligations imposed by the EA.

What does this mean for a property developer?

A riparian owner requires prior written consent from the EA for any proposed works or structures affecting or which are within 16m of flood defence structures or near main watercourses. The EA has issued some guidance that will need to be reflected in the application for consent:

  • Any new development must be set back from the river edge to ensure that the integrity of the flood defence work is not compromised and to allow space for biodiversity. A 'swept path' must be included to allow access for maintenance and emergency repairs of the flood defence works. 
  • Any works that will create or alter mill dams, weirs or other obstructions to the natural flow of ordinary watercourses require approval from the local authority or internal drainage board.
  • Light pollution from external artificial lighting into the watercourse or adjacent river corridor habitat must be prevented (as artificial light can harm river ecology).
  • Only locally native species can be planted and invasive species alien to the region must be avoided.

In addition, the EA regularly monitors the flood defence structures of watercourses and identifies those that require repair works. If repairs are needed, the EA may require the riparian owner to enter into a flood defence agreement, forcing them to make financial contributions to the improvement works - often for several years after the works have been completed.

These contributions are mostly capped. The cap however may be removed if the property is developed within a certain period of time after completion of the works. In this event, the EA may ask the current riparian owner to make uncapped repayment contributions reflecting up to 90% of the initial costs for the improvement works.

This will apply even if the current owner was not a party to the original flood defence agreement and had no means of knowing of this obligation. The obligation is often not obvious from the regular searches.

If a riparian owner fails to carry out its responsibilities, it could result in a rejection of the planning application or possible civil action from third parties.

Rogue riparian owners reprimanded!

And lastly, a word of caution - a riparian owner is best advised not to circumvent the requirements of the EA by building its own flood protection. In the unreported case of Environment Agency v Afshin Payravi (2007), the EA prosecuted and heavily fined a landowner, who instead of applying for consent from the EA, built his own flood defence. 

Robin Grove, Partner in our Regeneration team, commented:

"With the recent deluge of floods sweeping the nation, defence is likely to be higher up the agenda in the future. Developers need to appreciate the financial risks, and not just get carried away in the tide of waterside development."

This article was written by Juliane Lorenz.

For more information please contact Juliane on +44 (0)20 7427 6409 or juliane.lorenz@crsblaw.com