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The Manchester Ship Canal Company Ltd & Anor, R (on the application of) v Environment Agency.

Country/Territory
United Kingdom
Type of court
National - higher court
Date
Jun 20, 2012
Source
UNEP, InforMEA
Court name
High Court
Seat of court
London
Judge
Lang
Reference number
[2012] EWHC 1643 (QB)
Language
English
Subject
Water, Legal questions
Keyword
Water desalination Freshwater resources management Flood
Abstract
The case concerned the Environment Agency’s approach to mapping the “undefended scenario” flood zones on the national Flood Map. Former PPS25 required the Agency to map Flood Zones 2 and 3 (which show land liable to inundation in the 1:1000 and 1:100 annual probability flood events) “ignoring defences” – that is, the defences are assumed to fail, in keeping with the precautionary principle. The same advice appears in the NPPF and its Technical Guide. That raises the question: what are “defences”? The Agency has adopted its own policies that distinguish between “formal” defences”, whose primary purpose is to prevent the spread of flooding, and “de facto” defences, structures which some other main purpose but which perform an incidental flood defence function. Only “formal” defences are assumed to fail when mapping the Zones. The Agency decided that five sets of sluice gates on the Manchester Ship Canal were “formal” defences. They assumed these would fail in a flood event, with the result that Flood Zone 3 covered large areas of land adjoining the Canal – including much of the Claimants’ development land. The Claimants argued that the main purpose of the sluices was to maintain water levels for navigation. The Agency argued that it the purpose of the sluices was a matter for its expert judgment; it had concluded that the sluices’ navigational and flood defence purposes were of equal significance; and in accordance with the principle in R. v Derbyshire County Council, ex p Woods, that did not involve giving its own policies or PPS25 a meaning they were legally incapable of bearing In Tesco v Dundee the Supreme Court declined to overrule ex p Woods, but stressed that the meaning of policy was a question of law not rationality. The Judge interpreted this as entitling the court itself to rule on the meaning of the policy. On that basis, she held that the policies invariably treated “sluices controlling normal water levels” as de facto defences; on the facts, these sluices fell into that category; and so the Agency could not treat them as “formal” defences without departing from its policy. She quashed the Agency’s decision. However, she dismissed the Claimants’ alternative contention that, despite the wording of PPS25, the sluices should be assumed to operate properly rather than fail in a Zone 3 flood event, because there was undisputed evidence that the actual risk of failure was very small. It was lawful for the Agency to refuse to make an exception to the “undefended scenario” approach required by PPS25.
Full text
COU-159716.pdf