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Top Legal Questions (England & Wales only)

Is it legal to build on flood risk/plain areas?

The Government estimates that nearly one in six homes in England and Wales are already built in areas at risk of flooding. £600 million of public funding is spent every year to manage the flood risks associated with these homes. These figures show that building in flood risk regions is not expressly prohibited by law. However, due to recent wide-scale flooding incidents in the country and the ever increasing threat of climate change, new development in flood risk areas would only be allowed when it is exceptionally necessary, and when it does not increase the risk of flooding in the development’s community or elsewhere.

The Government’s current position is set out briefly in the National Planning Policy Framework (NPPF, paras 100-104), and in more detail in new Planning Practice Guidance on Flood Risk and Coastal Change. You can read those documents here. The new guidance replaces Planning Policy Statement 25 (PPS25) on development and flood risk. The NPPF and new guidance require planning authorities to take into account flood risk at all stages of the planning process to avoid inappropriate development in areas at risk of flooding, and to direct development away from areas of highest risk. Planning authorities have to consult the Environment Agency about applications for development in flood risk areas. They must notify the Environment Agency about their final decision in cases where the Environment Agency has objected to the development on flood risk grounds.

If a planning authority grants consent for development in a flood risk area against the advice of the Environment Agency, it may be possible for an interested party to challenge the decision. The procedure for doing this is by bringing a judicial review case. In theory, the Environment Agency itself might be able to challenge the decision. However, funding cuts mean that the Agency is increasingly reluctant to bring costly judicial review cases.

Visit the Communities and Local Government’s website for further information about the planning policies (see related links on the right side of this page). It is also worth noting that insurers may be reluctant to provide insurance cover in areas where the risk of flood is unacceptably high and where the Government does not provide improved flood defences. Read about the ABI (Association of British Insurers) Statement of Principles on the Provision of Flooding Insurance, and the proposed new scheme known as Flood Re: see related links to the right of this page.

What is a flood defence?

A flood defence helps to protect life and property from flooding. The Environment Agency provides you with guidance on simple measures you can take to protect your home. Visit the Agency's website for more information and see the Rights and Duties section.

The National Flood Forum, a non-profit organisation, offers information on products and services that may be used for flood defence and production. Please note that you should seek professional advice before purchasing or using any of the suggested products or measures.

Please note Law and Your Environment does not endorse any of the measures or products provided by external websites and will not be responsible for issues or disputes that may arise from their purchase or use.

Whose responsibility is it to provide flood defences?

Under civil law, individual property owners are responsible for protecting their property and land from flooding: see the Rights and Duties page. Government bodies also play a major role in providing flood and coastal defence. The Environment Agency has the primary responsibility in flood and coastal defence. Visit our Flood Risk Management section for further information.

It is for the Environment Agency and other statutory bodies to decide whether or not to fund flood defences: they are not under a duty to fund them. However, legal principles govern how they make their decisions, including that they must follow the proper procedures, take into account all relevant considerations, not make legal errors, and not reach decisions that are irrational. Failure to do so may be grounds for an interested party to challenge their decision by judicial review. The policies they apply and how they do this, are particularly important issues. During the winter 2013/14 flooding it emerged that many flood defence schemes previously planned by the Environment Agency were cancelled 2 or 3 years before when the government changed its guidance on how the Agency should carry out cost/benefit assessments. This has led to questions about whether the government guidance was lawful and correctly applied.

What are riparian rights?

These are rights created under common law and developed by the courts over the years. Riparian rights allow people who own land next to a river or other watercourse to make reasonable use of such water sources. They include:

  • The right to receive flow of water in its natural state
  • Right to fish subject to grant of a rod licence by the Environment Agency
  • Right to protect property from flooding and erosion
  • Right to swimming and boating
  • Right to extract a maximum of 20 cubic metres of water per day for domestic purposes (without a licence) or for agricultural use (excluding spray irrigation)

More information in the section on Flooding: Your rights and duties

What should I expect from my insurers in the event of flooding?

The information given here applies if your home is insured. However, an increasing number of insurers have been refusing cover for properties in flood risk areas, and the remaining ones who will insure have been raising their premiums heavily. This should change under reforms affecting the insurance industry that were introduced in April 2016. The reforms are intended to help households most at risk of flooding to obtain affordable home insurance. Read about the ABI (Association of British Insurers) Statement of Principles on the Provision of Flooding Insurance, and the proposed new scheme known as Flood Re: see related links to the right of this page.

If your home gets flooded, contact your insurers as quickly as possible about your claim. Cover for the risk of flood would normally be included under most buildings and contents house insurance policies. These policies should cover your home against all the usual risks of fire, flood, storm and subsidence. These risks are known as insured perils.

A buildings insurance policy for your home would normally cover the cost of rebuilding or repairing the home together with its permanent fittings and fixtures. A building policy should also have a standard clause providing cover for a reasonable cost of alternative accommodation up to a stated limit, if your home is badly damaged by flooding. Many of these policies would also cover temporary and emergency repairs where such repairs have been carried out to protect property from further damage.

Contents insurance policies cover the contents in your home and personal belongings, i.e. those things you would carry along with you if you were to move house. A combined building and contents policy will provide combined cover for loss or damage to the building and its fixtures and contents in the event of flooding. It is important to read and understand the terms and conditions of a policy before purchasing it.

Do home owners have any legal duties to prevent flooding?

Yes. These are covered in the section on Flooding: Your rights and duties

What does the law require me to do when there is a flood?

  • Flood water is viewed as a common enemy of all. This means that everyone has the responsibility to protect their properties from flooding.
  • Whatever steps you take to protect your property from flooding must be carried out with due care. You must ensure that you do not cause harm to your neighbours or their properties.
  • Provide your own flood defences if necessary and arrange to repair your property if it has been damaged. This will normally be covered by your building policy. If you are a tenant, you will need to contact your landlord as quickly as possible if the property that you are living in has been damaged by a flood.
  • You will also be required to dispose of debris and other waste items in a legal manner. Your local authority will be able to provide advice on how this should be done.

What help can I expect from my local authority and other government bodies?

It is your responsibility under the law to protect your property from flooding. However the EA, local authority and the Emergency services where possible will offer assistance in the event of a flood. For example, your local authority may provide you with sandbags and pump out flood water from public roads and footways to divert water flows from flooding. If there is serious flooding that involves people having to be evacuated, your local authority may be able to offer temporary shelter centres with food and bedding. They would also provide alternative accommodation for their own council tenants.

Emergency services (Fire, Police, Ambulance and the Army) will help to evacuate people who are stranded or in danger. Where required, they will also provide medical assistance and emergency life-saving treatment. The EA has a statutory duty to issue flood warnings and maintain public flood defences. Please note that although these bodies can assist you in the time of flooding, they are not required by the law to protect your home or other properties from flooding. The responsibility to do that lies with you. If the flooding has been caused by a faulty sewage system, contact your water supplier which is required to repair the system and to remove and treat sewage. Water suppliers are also required to provide their customers with a supply of clean drinking water.

Am I entitled to alternative accommodation?

Yes, if you have a building insurance policy. Building policies have a standard clause that covers the cost of alternative accommodation when your house is badly damaged due to insured perils such as flooding. If you are a local authority (council tenant) or other social tenant, please contact your local authority who is responsible for providing you with alternative accommodation.

If you are a private tenant and your house is flooded, your landlord is responsible under the tenancy agreement for repairing the damage within a reasonable time. You may have to vacate the house if it becomes uninhabitable. Although your landlord has to repair the damage to the property (normally covered by insurance), the landlord is not obliged to provide you with alternative accommodation while the repair work is going on. Before you move out, it is advisable to let your landlord know why you are leaving and to confirm when you will be able to move back. It is also important to reach an agreement for suspension of rent payments until the house is repaired and fit for occupation. This is especially important if you are receiving Housing Benefits, as your benefit entitlements will only cover the rent payments for a single property. If you are unable to reach an agreement with your landlord on suspension of rent payments, you may have obtain a court order for rent reduction. You can also seek compensation for inconvenience and distress for the time you have had to spend out of your home.

Even if you are not a local authority tenant, under the Homelessness Acts 1996 and 2002 your local authority would still be required to provide you with suitable temporary accommodation as a priority needs person. Section 189(d) of the 1996 Act places a duty on local authorities to provide accommodation to a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.

Policy and Legislation


Policy

Planning Policy Statement 25: Development and Flood Risk

Planning Policy Statement 25: Development and Flood Risk - Practice Guide

Planning Policy Statement: Planning and Climate Change-Supplement to Planning Policy Statement 1

The Town and Country Planning (Flooding) (England) Direction 2007

Circular 04/06 (Communities and Local Government): The Town and Country Planning (Flooding) (England) Direction 2007

The Pitt Review: Lessons learned from the 2007 floods

Legislation

The Town and Country Planning (General Development Procedure) Order 1995

Housing Act 1996

Homelessness Act 2002

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