Roger Brookhouse & Anor v The Environment Agency
[2023] UKUT 282 (LC)
Dale Paul Gould v The Environment Agency
24 August 2023
[2023] UKUT 201 (LC)
Upper Tribunal
A mill owner sued the Environment Agency because they fixed a river bank in 2001 and it caused problems years later. The court said the Agency did nothing wrong, and the mill owner should have taken better care of the river themselves, so the lawsuit was dismissed.
Key Facts
- •Langley Mill, a water mill in Essex, has existed for centuries.
- •Dispute over liability for maintaining a channel near the mill and work done by the Environment Agency (EA) in 2001.
- •Claimant, Dale Gould, sued the EA in County Court for declarations about a 1964 deed and in the Upper Tribunal for compensation under the Water Resources Act 1991.
- •The EA carried out works in 2001 to replace an eroding earth bank with a concrete weir and gabion mattress.
- •The gabion mattress has since failed, causing further erosion.
- •Gould alleges the 2001 works were defective and caused damage.
- •The EA contends the erosion is due to Gould's failure to manage the sluice gate properly.
Legal Principles
Terms may be implied into a contract only if necessary to make the contract work.
Marks & Spencer plc v BNP Paribas Securities Trust Co (Jersey) Ltd [2015] UKSC 72
Agency's actions must be rational.
Braganza v BP Shipping Limited [2015] UKSC 17
A riparian owner has the right to the accustomed flow of water.
Roberts v Gwynfrai DC [1899] 2 Ch 608
Compensation under paragraph 5 of Schedule 21 to the Water Resources Act 1991 requires showing that the complained-of action would be actionable as a tort.
Water Resources Act 1991, Schedule 21, paragraph 5
The EA has powers under s.165 of the Water Resources Act 1991 to carry out works relating to flood defence and drainage.
Water Resources Act 1991, s.165
Outcomes
The EA is not required to maintain all the decking at Langley Mill, only the 'open decking over' specified in the 1964 deed.
The deed specifically mentions only certain structures; implication of a wider term is not necessary to make the contract work.
The EA is not obliged to maintain the channel.
The channel is not a 'control work' within the meaning of the 1964 deed.
The court declined to make a declaration on whether the 1964 deed can be terminated on reasonable notice.
Insufficient analysis of the deed's nature and obligations; premature to make a decision without considering potential future circumstances.
Gould's claim for compensation under the Water Resources Act 1991 fails.
Gould failed to prove a tortious act by the EA. The 2001 works were not defective, and any change in water flow was not solely attributable to the EA's actions; Gould's failure to manage the sluice gate contributed significantly to the erosion.
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