Rural Law

It is widely reported that extreme weather events are becoming increasingly common and that trend looks set to continue in the coming years. The severe weather is likely to be characterised in Scotland (unsurprisingly) as flooding.

Local authorities have various powers to manage the risk of flooding and to implement measures to prevent it. This includes introducing a local flood risk management plan. The plan is produced in partnership with the Scottish Environment Protection Agency, Scottish Water and other relevant bodies.

Local authorities also have more immediate powers to take steps to reduce the risk of flooding which is likely to occur imminently and is likely to have serious adverse consequences for human health, the environment, cultural heritage or economic activity.

One measure they can put in place is the use of pumps to redirect flood water. On the face of it this is a very straightforward solution. However the down side of this approach is that in some cases it sends the water from the high risk area onto somebody else’s land.

As we have commented in recent press coverage here and here, if water is purposefully pumped onto your land by a local authority you may have a remedy. The legislation providing local authorities with their flood management powers also requires them to compensate any person who sustains damage as a result.

You are considered to have suffered damage if either the value of the land has decreased or your use of the land has been disturbed. There are a number of conditions that you need to meet in order for a claim to be successful:

– The damage must not have occurred as a result of anything you have done or failed to do.

– The action which caused the damage must also have been actionable by you if it hadn’t involved the exercise of statutory powers. In other words had this action been committed by another private party you would have had a claim.

– You must give notice of your claim to the local authority. This should include a statement of the grounds of your claim and the amount of compensation claimed.

– This notice must be given no later than 2 years after your loss becomes apparent or the first occurrence of the disturbance, depending on the circumstances. It must also be within 10 years of the initial activity.

Any dispute about entitlement to compensation would be considered by the Lands Tribunal.

If you have any questions about a claim for flood damage then please get in touch with Paul Marshall on 0131 656 0062 or at paul.marshall@brodies.com or Catriona Hepburn on 0131 656 3709 or at catriona.hepburn@brodies.com or your usual Brodies contact.

Catriona Hepburn

Solicitor at Brodies LLP
Catriona has experience providing advice across a wide range of public law and regulatory issues. She deals with a variety of Sheriff Court and Court of Session actions on regular basis.
Catriona Hepburn