“(1) ‘Flood’ includes any case where land not normally covered by water becomes covered by water. (2) It does not matter for the purpose of subsection (1) whether a flood is caused by— (a) heavy rainfall, (b) a river overflowing or its banks being breached, (c) a dam overflowing or being breached, (d) tidal waters, (e) groundwater, or (e) anything else (including any combination of factors).” (a) heavy rainfall, (b) a river overflowing or its banks being breached, (c) a dam overflowing or being breached, (d) tidal waters, (e) groundwater, or (e) anything else (including any combination of factors).”
“(1) ‘Risk’ means a risk in respect of an occurrence assessed and expressed (as for insurance and scientific purposes) as a combination of the probability of the occurrence with its potential consequences. (2) ‘Flood risk’ means a risk in respect of flood.”
“(1) In exercising its flood and coastal erosion risk management functions, a Welsh risk management authority must— (a) act in a manner which is consistent with the national strategy and guidance …” (a) act in a manner which is consistent with the national strategy and guidance …”
“Prioritising investment to the most at risk communities”
“(1) For the purposes of the drainage of land, there shall continue to be— (a) districts, known as internal drainage districts, which shall be such areas … within Wales (within the meaning ofsection 158 of the Government of Wales Act 2006 ) as will derive benefit, or avoid danger, as a result of drainage operations; and (b) boards, known as internal drainage boards, each of which shall be the drainage board for an internal drainage district; and, subject to the following provisions of this Part, the internal drainage districts which were such districts immediately before the coming into force of this section, and the boards for those districts, shall continue as such districts and boards. (2) An internal drainage board shall— (a) exercise a general supervision over all matters relating to the drainage of land within their district; and (b) have such other powers and perform such other duties as are conferred or imposed on internal drainage boards by this Act.” (a) districts, known as internal drainage districts, which shall be such areas … within Wales (within the meaning ofsection 158 of the Government of Wales Act 2006 ) as will derive benefit, or avoid danger, as a result of drainage operations; and (b) boards, known as internal drainage boards, each of which shall be the drainage board for an internal drainage district; (a) exercise a general supervision over all matters relating to the drainage of land within their district; and (b) have such other powers and perform such other duties as are conferred or imposed on internal drainage boards by this Act.”
“(1) … [T]he Natural Resources Body for Wales [i.e. NRW] may enter into an agreement with any internal drainage board for the carrying out by the board, on such terms as to payment or otherwise as may be specified in the agreement, of any work in connection with a main river which … the Natural Resources Body for Wales is authorised to carry out. (2) Notwithstanding any restriction by reference to a main river of the powers conferred on the appropriate supervisory body bysection 165 of the Water Resources Act 1991 , the appropriate supervisory body may— (a) with the consent of an internal drainage board, carry out and maintain in that board’s district any works which the board might carry out or maintain, on such terms as to payment or otherwise as may be agreed between the board and the appropriate supervisory body; or (b) agree to contribute to the expense of the carrying out or maintenance of any works by any internal drainage board.” (a) with the consent of an internal drainage board, carry out and maintain in that board’s district any works which the board might carry out or maintain, on such terms as to payment or otherwise as may be agreed between the board and the appropriate supervisory body; or (b) agree to contribute to the expense of the carrying out or maintenance of any works by any internal drainage board.”
“(1) Subject to section 11 above and subsection (4) and section 17 below— (a) every drainage board acting within the internal drainage district for which they are the drainage board … shall have the powers specified in subsection (2) below. (2) The powers mentioned in subsection (1) above are the powers, otherwise than in connection with a main river or the banks of such a river— (a) to maintain existing works, that is to say, to cleanse, repair or otherwise maintain in a due state of efficiency any existing watercourse or drainage work; (b) to improve any existing works, that is to say, to deepen, widen, straighten or otherwise improve any existing watercourse or remove or alter mill dams, weirs or other obstructions to watercourses, or raise, widen or otherwise improve any existing drainage work; (c) to construct new works, that is to say, to make any new watercourse or drainage work or erect any machinery or do any other act (other than an act referred to in paragraph (a) or (b) above) required for the drainage of any land.” (a) every drainage board acting within the internal drainage district for which they are the drainage board … (a) to maintain existing works, that is to say, to cleanse, repair or otherwise maintain in a due state of efficiency any existing watercourse or drainage work; (b) to improve any existing works, that is to say, to deepen, widen, straighten or otherwise improve any existing watercourse or remove or alter mill dams, weirs or other obstructions to watercourses, or raise, widen or otherwise improve any existing drainage work; (c) to construct new works, that is to say, to make any new watercourse or drainage work or erect any machinery or do any other act (other than an act referred to in paragraph (a) or (b) above) required for the drainage of any land.”
“(2) An authority listed in subsection (3) may carry out flood risk management work if— (a) Conditions 1 and 3 are satisfied, or (b) Conditions 1 and 4 are satisfied. (3) The authorities are— (a) an internal drainage board, (b) a district council, and (c) a lead local flood authority for an area for which there is no district council. (4) Condition 1 is that the authority considers the work desirable having regard to the local flood risk management strategy for its area under section 9 or 10 of theFlood and Water Management Act 2010 . … (6) Condition 3 is that the purpose of the work is to manage a flood risk in the authority’s area from an ordinary watercourse. … (8) Condition 4 is that the purpose of the work is to manage a flood risk in the authority’s area from the sea and either— (a) the work is within subsection (9)(a), (b) or (f), or (b) the appropriate agency has consented to the work. (9) In this section ‘flood risk management work’ means anything done— (a) to maintain existing works (including buildings and structures) including cleansing, repairing or otherwise maintaining the efficiency of an existing watercourse or drainage work; (b) to operate existing works (such as sluicegates or pumps); (c) to improve existing works (including buildings or structures) including anything done to deepen, widen, straighten or otherwise improve an existing watercourse, to remove or alter mill dams, weirs or other obstructions to watercourses, or to raise, widen or otherwise improve a drainage work; (d) to construct or repair new works (including buildings, structures, watercourses, drainage works and machinery); (e) for the purpose of maintaining or restoring natural processes; (f) to monitor, investigate or survey a location or a natural process; (g) to reduce or increase the level of water in a place; (h) to alter or remove works.” (a) Conditions 1 and 3 are satisfied, or (b) Conditions 1 and 4 are satisfied. (a) an internal drainage board, (b) a district council, and (c) a lead local flood authority for an area for which there is no district council. (a) the work is within subsection (9)(a), (b) or (f), or (b) the appropriate agency has consented to the work. (a) to maintain existing works (including buildings and structures) including cleansing, repairing or otherwise maintaining the efficiency of an existing watercourse or drainage work; (b) to operate existing works (such as sluicegates or pumps); (c) to improve existing works (including buildings or structures) including anything done to deepen, widen, straighten or otherwise improve an existing watercourse, to remove or alter mill dams, weirs or other obstructions to watercourses, or to raise, widen or otherwise improve a drainage work; (d) to construct or repair new works (including buildings, structures, watercourses, drainage works and machinery); (e) for the purpose of maintaining or restoring natural processes; (f) to monitor, investigate or survey a location or a natural process; (g) to reduce or increase the level of water in a place; (h) to alter or remove works.”
“Respond to the climate and nature emergencies by seeking innovative practices, promoting adaptation and preparing for future change.”
“Prioritise our work on a risk basis in alignment with Welsh Government’s National FCERM Strategy and develop our evidence base to secure future investment in flood risk management.”
“Evidence has been developed to assess the long list options. In particular, the fluvial model has been updated to enable a comparison of the predicted impacts for different modelling scenarios. Stakeholder events have been held with the local community for them to contribute their knowledge, experiences and feedback and for the project team to share project updates and evidence developed. In addition, we have held a number of meetings with individual local stakeholders and local organisations. The engagement provided valuable feedback to assist with the development and refinement of the fluvial model. The feedback received also assisted with the development of the long list and assessment of the long list and short list. The evidence developed does not provide justification for NRW Flood Risk Management (FRM) investment in the Tan Lan Embankment. Therefore, this does not provide justification for NRW FRM to maintain the embankment or for NRW FRM to contribute to the future maintenance of the Tan Lan Embankment. The recommended option is that NRW FRM will not use its permissive powers to undertake any future work to the Tan Lan Embankment or the outfalls through this embankment. This is referred to as an NRW FRM withdrawal of maintenance to the Tan Lan Embankment and all outfalls through the embankment. This will enable the prioritisation of resources in agreement with the National Strategy for Flood and Coastal Erosion Risk Management in Wales.”
“In line with the Strategy, Welsh Government Flood and Coastal Erosion Risk Management (FCERM) funding prioritises the protection of people and communities. To assist in the prioritisation for Welsh Government funding of flood risk projects in Wales a standard methodology is used to prioritise capital schemes by both NRW and local authorities. This considers a number of factors including the Communities at Risk Register (CaRR), recent history of flooding, the number of homes affected, opportunities for partnership funding and the delivery of wider project benefits. The prioritisation score for Tan Lan Embankment is 49 / 100, which is considered relatively low. Welsh Government’s prioritisation scoring provides a high level indication of relative priorities and therefore is not intended to determine project viability or consider the detailed assessment included within this appraisal.”
“The agricultural land located behind the Tan Lan Embankment is part of the Afon Conwy Internal Drainage District (IDD). The IDD is administered by the Internal Drainage Board (IDB), which is an NRW function. ... NRW’s role as IDB is separate and independent of its Flood Risk Management role. The definitive legal boundary of the Afon Conwy Internal Drainage District (IDD) is as shown on the NRW Geospatial Map Viewer. This shows that the main Tan Lan Embankment is located outside of the Afon Conwy IDD, as shown in the extract from the Geospatial viewer in Figure 4 below. The section of embankment on the left bank of the Afon Maenan from downstream of the caravan park to the Network Rail Embankment is located within the IDD. NRW FRM issues a demand for payment to the Internal Drainage Board (IDB) each year for a precept payment. This precept payment is a contribution to the maintenance of FRM assets in and around the IDD. The Afon Conwy IDD stretches from Betws-y-Coed to downstream of Tal-y-Cafn, as shown in the extract from the Geospatial viewer in Figure 5 below. In 2022/23 the precept payment was£16,104 . For the Afon Conwy IDB in 2022/23 the total amount of receipts and income from direct rates on landowners and special levies on local authorities was£34,047 . Any underspend is carried over to the next year. This is comprised of contributions from rates payers, the local authority and NRW. All agricultural land owners/occupiers within an IDD are charged drainage rates in accordance with theLand Drainage Act 1991 . They cannot opt out, however the IDB can choose not to raise the charges. The 10 rates payers located behind the Tan Lan Embankment have had their rates waived by the IDB for 2020 and subsequent years until the conclusion of the FRM focused Tan Lan Embankment study. The combined value of the rates for these 10 rate payers is around£3,000 per year. Following the completion of this FRM study the IDB will separately consider the rates and maintenance activities for those rates payers located behind the Tan Lan Embankment. The works carried out within the IDD principally include grass cutting and ditch clearance.” (See also section 7 of the part of the OBC concerned with “Key Stakeholders and Working with Others”.) The works carried out within the IDD principally include grass cutting and ditch clearance.”
“Based on the updated fluvial hydraulic model for the current baseline situation, Tan Lan Embankment offers a standard of fluvial flood protection to the land behind of between 50% Annual Exceedance Probability (AEP) and 20% AEP. The chance of flooding each year is referred to as the Annual Exceedance Probability (AEP). Hence there is between a 1 in 2 chance and a 1 in 5 chance that the embankment will be overtopped from the Afon Conwy in any year. Therefore, as a flood defence the Tan Lan Embankment offers a low standard of protection. The standard of protection offered by the Tan Lan Embankment will reduce in the future due to the impacts of climate change. NRW does not own the Tan Lan Embankment or the outfalls through the embankment. NRW has permissive powers that enable it to carry out flood risk management works at its discretion. Whilst NRW has historically carried out repairs to the Tan Lan Embankment, NRW does not have a statutory duty to maintain this embankment. ... This project therefore aims to determine the flood risk management viability of the Tan Lan Embankment and whether an affordable, sustainable, long term flood risk management solution can be identified for the community.”
“To enable us to compare different options the Afon Conwy fluvial hydraulic model was updated as part of this study. … The model has been independently reviewed and signed off on behalf of NRW. To inform the long list assessment we modelled four different scenarios: • Scenario 1: Baseline (current arrangement) • Scenario 2: Removal of the embankment • Scenario 3: Lowered sections of the embankment • Scenario 4: A breach in the embankment Scenario 2 included the removal of the embankment on both the left and right bank of the Afon Maenan. … Figure 6 and 7 below show the maximum flood extents for the 20% AEP and 1% AEP return events for Scenario 1 and Scenario 2. The evidence from the model suggests that during flood events the embankments in this area cause a constriction to flows (act as a throttle) causing increased flood extents upstream. … A comparison of Scenario 1 and Scenario 2 shows that: • For the most frequent storm events the embankment provides some flood protection to homes that would otherwise flood more frequently. • For relatively frequent and less frequent (more severe) storm events there are fewer homes predicted to be at flood risk in Scenario 2 (without the embankment). As there are overall fewer homes predicted to be at flood risk in Scenario 2 in comparison to Scenario 1, this does not provide justification for NRW Flood Risk Management (FRM) investment in the Tan Lan Embankment. Therefore, NRW FRM has no justification to maintain the Tan Lan Embankment or to invest in or contribute to the future maintenance of the Tan Lan Embankment through a joint approach or collaborative organisation.”
“Based on the assessment of the long list options, shown in Appendix B, and considering the justification and prioritisation for FRM investment in accordance with the aim of the National Strategy to reduce risk to people, the following two options were identified for the short list. • NRW Flood Risk Management Withdrawal of Maintenance • Intertidal Habitat Creation”
“113. The OBC set out the matters considered in detail, and the longlisted options. However, its ultimate conclusion was that continuing with any maintenance or capital improvement of the Embankment, would not be consistent with the duty placed on us to act in line with the Strategy, because it would be uneconomic and not a priority in the risk-based framework in which we have to operate. It therefore recommended that there be a ‘withdrawal of maintenance’ and that the withdrawal of maintenance procedure be followed. 114. The OBC was considered by the FRM Business Group in summer 2024. The subsequent approval of the OBC, and then the planning and preparing of communications, took until24 October 2024 , when the decision was announced to the public and affected stakeholders.”
“I should have thought that the question whether a given piece of land near to or adjoining, a river was part of the river bank must be a question very largely of fact to be decided in each particular case by reference to the size and habits of the river, the geological composition of the land, and the level of the land as compared with the river, and, no doubt, other circumstances of that kind. … the matter is, in the last resort, very largely a matter of fact.”
“Some of the options may impact the functionality or the viability of the IDD.”
“No. Whilst the status and future of the Welsh language in Maenan and the local area has been raised as a potential issue by a stakeholder, there is no evidence to suggest that changes in flood risk at this level would have this type of cultural impact.”
“The mitigation of flood risk is not considered to impact access to, provision of, or opportunity for residents to speak Welsh and is therefore screened out of the assessment.”
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
“As for ground 3, in relation to flood risk management, it is clear from the Defendant’s Outline Business Case that a balancing of interests has been carried out and this ground is not arguable.”
“(c) An applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his ‘possessions’ within the meaning of this provision. ‘Possessions’ can be either ‘existing possessions’ or assets, including claims, in respect of which the applicant can argue that he or she has at least a ‘legitimate expectation’ of obtaining effective enjoyment of a property right. By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a ‘possession’ within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfilment of the condition (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, §§ 82 and 83, ECHR 2001-VIII and Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, § 69, ECHR 2002-VII).”
“[A1P1] comprises three distinct rules. The first rule, which is of a general nature, enounces the principle of peaceful enjoyment of property; it is set out in the first sentence of the first paragraph. The second rule covers deprivation of possessions and subjects it to certain conditions; it appears in the second sentence of the same paragraph. The third rule recognises that the States are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose; it is contained in the second paragraph. The Court must determine, before considering whether the first rule was complied with, whether the last two are applicable.”
“The three rules are not ‘distinct’ in the sense of being unconnected: the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule. Each of the two forms of interference defined must comply with the principle of lawfulness and pursue a legitimate aim by means reasonably proportionate to the aim sought to be realised.”
“63. In the absence of a formal expropriation, that is to say a transfer of ownership, the Court considers that it must look behind the appearances and investigate the realities of the situation complained of … Since the Convention is intended to guarantee rights that are ‘practical and effective’…, it has to be ascertained whether that situation amounted to a de facto expropriation, as was argued by the applicants. In the Court’s opinion, all the effects complained of (see paragraph 58 above) stemmed from the reduction of the possibility of disposing of the properties concerned. Those effects were occasioned by limitations imposed on the right of property, which right had become precarious, and from the consequences of those limitations on the value of the premises. However, although the right in question lost some of its substance, it did not disappear. The effects of the measures involved are not such that they can be assimilated to a deprivation of possessions. The Court observes in this connection that the applicants could continue to utilise their possessions and that, although it became more difficult to sell properties in Stockholm affected by expropriation permits and prohibitions on construction, the possibility of selling subsisted; according to information supplied by the Government, several dozen sales were carried out (see paragraph 30 above). There was therefore no room for the application of the second sentence of the first paragraph in the present case.”
“213. The Court also reiterates that genuine, effective exercise of the right protected by Article 1 of Protocol No. 1 to the Convention does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, particularly where there is a direct link between the measures an applicant may legitimately expect from the authorities and his effective enjoyment of his possessions … Allegations of a failure on the part of the State to take positive action in order to protect private property should be examined in the light of the general rule in the first sentence of the first paragraph of Article 1 of Protocol No. 1 to the Convention, which lays down the right to the peaceful enjoyment of possessions … … 215. … In the present case, the Court has established in paragraphs 162-165 above that the flooding of7 August 2001 occurred after the urgent large-scale evacuation of water from the Pionerskoye reservoir, the likelihood and potential consequences of which the authorities should have foreseen. The Court has furthermore established that the main reason for the flood, as confirmed by the expert reports, was the poor state of repair of the Pionerskaya river channel because of the authorities’ manifest failure to take measures to keep it clear and in particular to make sure its throughput capacity was adequate in the event of the release of water from the Pionerskoye reservoir. The Court has concluded that this failure as well as the authorities’ failure to apply town planning restrictions corresponding to the technical requirements of the exploitation of the reservoir put the lives of those living near it at risk (see paragraphs 168-180 and 185 above). 216. The Court has no doubt that the causal link established between the negligence attributable to the State and the endangering of the lives of those living in the vicinity of the Pionerskoye reservoir also applies to the damage caused to the applicants’ homes and property by the flood. Similarly, the resulting infringement amounts not to ‘interference’ but to the breach of a positive obligation, since the State officials and authorities failed to do everything in their power to protect the applicants’ rights secured byArticle 8 of the Convention and Article 1 of Protocol No. 1 (see Öneryıldız, cited above, § 135). Indeed, the positive obligation under Article 8 and Article 1 of Protocol No. 1 required the national authorities to take the same practical measures as those expected of them in the context of their positive obligation underArticle 2 of the Convention (see, mutatis mutandis, Öneryıldız, cited above, § 136). Since it is clear that no such measures were taken, the Court concludes that the Russian authorities failed in their positive obligation to protect the applicants’ homes and property.”
“Not only must an interference with the right of property pursue, on the facts as well as in principle, a legitimate aim in the general interest, but there must also be a reasonable relation of proportionality between the means employed and the aim sought to be realised by any measures applied by the state, including measures designed to control the use of the individual’s property. That requirement is expressed by the notion of a ‘fair balance’ that must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. The concern to achieve this balance is reflected in the structure of article 1 of Protocol No 1 as a whole. In each case involving an alleged violation of that article the court must therefore ascertain whether by reason of the state’s interference the person concerned had to bear a disproportionate and excessive burden.”
“34. The issue of striking a fair balance between the general interest of the community and the requirements of the protection of the individual’s A1P1 rights has arisen in a number of cases. A number of principles emerge. First, a fair balance requires ‘a reasonable relationship of proportionality between the means employed and the aim sought to be realised’: James v UK (1986) 8 E.H.R.R. 123, at [50]. Secondly, at the domestic level the margin of appreciation which the Strasbourg court exercises becomes a recognition that, in certain circumstances, public authorities other than the courts are better placed to determine how the interests should be balanced: AXA General Insurance Ltd, at [131]. Thirdly, there may need to be the possibility of re-assessing the balance of the respective interests at reasonable intervals: Sporrong , at [70]; Papastavrou v Greece (2005) 40 E.H.R.R. 14 (but both were deprivation cases where no compensation had been paid). Fourthly, the necessary balance will not be found if the property owner has had to bear ‘an individual and excessive burden’: Sporrong, at [73]. Finally, control of property under r.3 of A1P1 can occur without payment of compensation, unless compensation is necessary to avoid an individual and excessive burden: Sporrong, at [73]; R. (Alconbury Developments Limited) v Secretary of State for the Environment, Transport and the Regions at[2001] UKHL 23 ; at [2003] 2 A.C. 295, at [72]; R. (Trailer & Marina(Leven) Ltd) v Secretary of State for the Environment, Food and Rural Affairs at[2004] EWCA Civ 1580 ; at [2005] 1 W.L.R. 1267, at [57]–[58], at [60]–[61], per Neuberger LJ. … 155. But assuming that the policy of the Environment Agency has meant its interference with or even control over the claimants’ land, it is evident that there has been a fair balancing of their rights with those of the general interest as required by A1P1 if these are to occur lawfully. A steady stream of consultants’ reports and agency strategies, examined at length above, set out the public interest, while recognising the costs which some members of the community will bear from flooding events which cannot be mitigated. In particular, there have been the specific studies of the costs and benefits of the various options for managing flood risk at Minsterworth Ham, including various scenarios for carrying out further works on the claimants’ land. One scenario considered has been to retreat the line, but until now that has been rejected in favour of maintaining the present embankment. All this is against the background of the limited amount of public funds being available to manage flood risk. 156. Where a delicate balancing of interests is required, where Parliament has charged the Environment Agency with supervising flood risk management in England, and where the agency has considerable expertise, the court is in no position to second guess its expert judgment and cost/benefit analyses. The need for judicial deference in this type of case runs through the speeches of the Law Lords in Marcic v ThamesWater Utilities Ltd at[2003] UKHL 66 ; at [2004] 2 A.C. 42. Indeed, at [45] of Lord Nicholls’ speech, on which the claimants placed so much reliance, with its reference to the minority who suffer damage and disturbance, and who are required to bear an unreasonable burden, concludes that it was a matter for the officials to reconsider the matter in light of the facts in the case. In other words, it was not for the court to conduct some rebalancing itself. Similarly, in this case, the Environment Agency is in a better position than the court to make the necessary judgements and cost-benefit assessments about flooding at Minsterworth Ham.”
“[T]he Online [scil. Outline] Business Case shows clearly why the decision was taken in respect of such risk. It is not arguable that the reasons were not adequate.”