Flood Defence Law after Marcic

Abstract

The Court of Appeal decision in Peter Marcic v Thames Water Utilities (2002) raises some profound issues concerning common law liability for private nuisance and liability for infringement of human rights. Previously there had been recognised to be good reasons for excluding the liability of sewerage undertakers for sewer flooding, but these have been overturned by the decision. The finding of liability for environmental human rights infringements also defeats the purposeful avoidance of general statutory liability upon undertakers for sewer flooding and raises fundamental concerns about the respective roles of the courts and Parliament in contexts of this kind. The broad-based reasoning of the Court raises the implication that the same approach should be applied in contexts beyond that of sewer flooding. However, application of the same principles to the broader context of protection from flooding generally raises significant doubts as to the realistic scope of a right to such protection. Critical discussion, therefore, follows as to the need for careful qualification of any proposed right to flood defence and the failings of the Court in not taking account of the complexity of what is involved in dealing with liability for phenomena that arise from natural causes.