Twenty-eighth Report Adapting Institutions to Climate Change Cm ...

BOX 4G LEGAL ASPECTS OF COASTAL PROTECTION
The Royal Commission on Environmental Pollution commissioned a review of the ‘Legal
Liabilities for Coastal Erosion and Flooding in the United Kingdom due to Climate Change’
and published a report of the same name in 2009. 54 The report provides a detailed overview
of the subject, and here we simply extract some key issues.
The common law does not provide a coherent or easily predictable response to flooding or
coastal erosion, although in some cases it does redistribute costs. Common law powers and
duties to provide protection from water have developed over centuries and are intimately
affected by piecemeal (and also more comprehensive) statutory interventions. As a result, legal
liabilities are complicated and context-dependent. 55
Some of the issues can be seen in a Court of Appeal decision in respect of the loss of a
Yorkshire cliff-top hotel as a result of coastal erosion. 56 The land that ‘slipped’ was owned
by Scarborough Borough Council. The Court of Appeal held that the Council (or any other
owner or occupier of such land) does indeed owe a ‘measured duty of care’ to prevent danger
to a neighbour’s land from lack of support due to natural causes. This duty applies when
the owner or occupier knows (or could be presumed to know) of the condition on his land
giving rise to the danger, and where it was reasonably foreseeable that the defect or condition
would cause damage to the neighbour’s land. The Court emphasised questions of cost and
reasonableness in determining the nature of the duty owed. In this case the Council was not
responsible, but there is considerable scope for debate on the facts in future cases.
The common law situation might be more straightforward if, for example, engineering work
upstream or along the coast had caused the flooding or erosion; liability for something done
is easier to establish than liability for a failure to act, and a straightforward ‘reasonable person’
test is likely to be applied.
The Human Rights Act 1998 may also be invoked in a way which could rearrange costs and
liabilities. The rights most likely to be invoked are the right to respect for private and family
life and home, and the right to peaceful enjoyment of possessions.
Neither right is absolute. The right to respect for private and family life and home may be
interfered with “as is in accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for the protection of
the rights and freedoms of others.” And the right to peaceful enjoyment of possessions can be
interfered with “in the public interest and subject to the conditions provided for by law and by
the general principles of international law”; nor does the right prevent “such laws as [the State]
deems necessary to control the use of property in accordance with the general interest …”. 57
As with the common law, the position under the Human Rights Act is difficult and unclear. A
House of Lords’ decision on recurrent flooding of domestic property with sewage illustrates
some of the issues. The parties in this case agreed that such flooding is a prima facie violation
of the rights both to property and private and family life. Although the case established the
need for a fair balance to be struck between the interests of the individual and the community
as a whole, the claimants failed in their claim for compensation because the statutory scheme
for assessing the priority for sewage works was compatible with the European Convention on
Human Rights. 58
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Chapter 4