Planning Court confirms NRW’s lawful withdrawal of flood maintenance

Background

NRW had historically maintained the Embankment under its permissive powers in section 165 of the WRA 1991. On 24 October 2024, NRW announced it would no longer exercise its section 165 powers in relation to the Embankment. NRW made this decision following a viability study which concluded that continued maintenance was not a cost-effective way of managing flood risk due factors including the low standard of protection offered, high repair costs and inconsistency with the Welsh Government’s National Strategy for Flood and Coastal Erosion Risk Management (the “FECRM Strategy”), which prioritises protecting homes over agricultural land.

Two landowners with land adjoining the Embankment challenged the decision on four grounds. Permission was granted on Grounds 1 and 2, with a renewed application for permission being heard for Ground 3 and 4 at the substantive hearing. 

Ground 1: Failure to exercise powers under both statutory regimes

The claimants argued that NRW unlawfully limited its decision to the WRA 1991 and failed to make a decision under the LDA 1991. Judge Keyser KC dismissed this ground, emphasising that although NRW performs both roles (as the “appropriate agency” under the WRA 1991 and as the “Internal Drainage Board” under the LDA 1991), these are distinct statutory functions and therefore one must separately assess whether a decision needs to be made subject to these Acts. On the facts, the Court found that under sections 14 and 14A of the LDA 1991, Internal Drainage Boards have no power to maintain banks of main rivers (which the Embankment formed part of). Therefore, any decision about the Embankment could only be made under the WRA. 

Ground 2: Failure to take into account relevant considerations

The claimants contended that NRW failed to consider the implications for the Internal Drainage District (the “IDD”) and potential funding options, including precepts and grants. Judge Keyser KC disagreed, finding NRW “impossible to criticise” in this respect. The Outline Business Case (“OBC”) expressly acknowledged the IDD context, noting that some options could affect its viability, and explicitly considered precept payments and drainage rates. NRW was entitled to focus on its flood risk management role and the Welsh National Strategy, which prioritises investment in communities most at risk. The decision was based on a detailed cost-benefit analysis, including modelling scenarios and economic appraisal. The Court also dismissed arguments that NRW approached the decision with a “closed mind” because maintenance had ceased in 2020, finding this reflected the ongoing review rather than predetermination.

Ground 3: Control or interference with the landowners’ property rights under the ECHR

The claimants argued that the decision imposed an unfair and disproportionate burden on landowners for maintenance of the Embankment constituting “control or interference” with the landowners’ property rights under Article 1 of the First Protocol (“A1P1”) of the European Convention on Human Rights (the “ECHR”), contrary to section 6 of the Human Eights Act 1998 (the “HRA”). This was rejected by Judge Jarman KC at the permission stage on the basis that the OBC had expressly conducted a balancing of interests. The claimants argued that this balancing exercised had been insufficient as it was limited to a cost/benefit analysis.

The Court found that A1P1 does not confer a right to state-funded flood protection and that landowners have no legal entitlement to be safeguarded from flooding. The withdrawal of maintenance did not amount to deprivation or control of property. The claimants’ argument was perceived by the Court as an “unwarranted extension” of A1P1, identifying a property right to have flood defences maintained at public expense which does not exist in law. The decision did not impose any new legal obligation on landowners to maintain the Embankment; it simply meant NRW would no longer do so. Even if interference was to be found, the balancing exercise conducted by NRW considered in detail the position of agricultural landowners and the proper allocation of resources in line with the FECRM Strategy.

Ground 4: Inadequate reasons

Finally, the claimants alleged that NRW gave inadequate reasons for its decision. The Court dismissed this ground, finding that the OBC provided “long and full reasons” which left no reasonable room for doubt as to the rationale of the decision.

Conclusion

This judgment provides guidance on the scope of NRW’s statutory powers under the WRA 1991 and LDA 1991 and highlights the difficulty of legal challenges to strategic flood risk management decisions which are underpinned by national strategy and a comprehensive balancing of interests. It also illustrates the difficulty of bringing human rights arguments to support a right to state-funded flood protection.