1 Legal liabilities for coastal erosion and flooding in the United Kingdom due to climate change Professor John Gibson Institute of Marine and Environmental Law University of Cape Town

2 Coastal Erosion and Flooding

3 Title goes here Ruling the Waves? King Canute (10th Century) HG Wells (20th Century) “Adapt or perish, now as ever, is nature’s inexorable imperative.”

4 Title goes here Managed Retreat or Realignment Hesketh Out Marsh, Lancashire, before the old sea wall was demolished Hesketh Out Marsh after a new sea wall was built further inland

5 Title goes here Royal Commission on Environmental Pollution 28 th Report (March 2010)

6 Title goes here Statutory Framework Flood defence Statute of Sewers 1531 Water Resources Act 1991 Land Drainage Act 1991 Environment Act 1995 Coast Protection Coast Protection Act 1949 Authorities Environment Agency Internal drainage boards Local councils

7 Title goes here Legislative Reforms European Union EU Floods Directive 2007 England and Wales Flood Risk Regulations 2009 Flood and Water Management Act 2010 Scotland Flood Risk Management (Scotland) Act 2009

8 Common Law “By the common law... the King ought of right to save and defend his realm, as well against the sea, as against the enemies, that it should not be drowned or wasted.” Lord Chief Justice Coke Isle of Ely Case (1609)

9 Holbeck Hall Hotel, Scarborough (1993)

10 Statutory Powers and Duties Powers to construct flood defence and coast protection works are discretionary not mandatory. A decision not to protect a site cannot be reviewed if the discretion is exercised reasonably. In the past, sea defences could not be dismantled unless protection was improved as a result. The Flood and Water Management Act 2010 and Flood Risk Management (Scotland) Act 2009 now allow defences to be removed to restore natural processes.

11 Statutory Compensation Flood defence and coast protection authorities have statutory duties to pay compensation for loss or disturbance due to the exercise of their powers. Compensation is only payable if the authority’s conduct would otherwise have been actionable at common law as nuisance or negligence. There is no liability for injury due to passive inaction within the scope of an authority’s discretion.

12 Human Rights European Convention on Human Rights Article 8 - Right to respect for private and family life, home and correspondence First Protocol, Article 1 - Right to peaceful enjoyment of possessions

13 Human Rights Human Rights Act 1998 Marcic v Thames Water Utilities (2004) Water Industry Act 1991 Director-General of Water Services

14 Nature Conservation Wildlife and Countryside Act 1981 Sites of special scientific interest (SSSI) EU Birds Directive 1979 Special protection areas (SPA) EU Habitats Directive 1992 Special areas of conservation (SAC)

15 Nature Conservation or Human Rights? Pakefield to Eastern Bavents Site of Special Scientific Interest

16 Nature Conservation or Human Rights Boggis v Natural England (2009)

17 Conclusions Managed realignment has been complicated by the traditional focus of legislation on powers to exclude rather than admit the sea, but recent reforms will provide more flexibility. Discretionary powers have always allowed sea defences to be abandoned, but uncontrolled breaches may be dangerous. Decisions to abandon or breach sea defences must be made responsibly, or they may be challenged in the courts. Managed realignment could breach human rights if private property is lost, but the authorities have a wide margin of discretion.

18 Conclusion There may be a legal duty to prevent flooding or erosion of sites designated under the EU Birds and Habitats Directives. There are potential conflicts between human rights and nature conservation. Landowners will not normally be entitled to compensation if their land is eroded or flooded by the natural action of the sea. Authorities are more likely to have to pay compensation if they intervene than if they do nothing. Implementing managed realignment will inevitably raise complex questions of law and policy.

19 “Adapt or Perish”