Out-Law News 1 min. read
21 Jun 2012, 4:14 pm
The challenge was brought by the Manchester Ship Canal Company (MSCC), which operates the canal, and developer Peel Holdings, which owns around 100 hectares of land surrounding the canal.
The judge ruled that the Environment Agency had incorrectly treated five sluice gates in the canal as formal flood defences, which meant that the Agency's flood map which assessed what would happen if the sluice gates were to fail was wrong.
The sluice gates are in place to regulate water levels and to assist navigation along the canal and should be treated as "de facto" flood defences, rather than "formal" flood defences, because their primary function is not to prevent flooding.
The designation of a high risk flood zone on the 100 hectares of land owned by Peel Holdings would have meant that any grant of planning permission would have been unlikely. Now the designation has been quashed the developers have a better chance of securing planning permission for any proposed development.
“On the evidence, the sluices are not owned or maintained by the claimants for the purpose of providing a formal defence against flooding," the judge said. "Their primary purpose is to regulate water levels in the canal, not to limit the spread of water over land."
“My conclusion is, therefore, that the defendant failed properly to interpret, apply or have regard to its own policy when it classified the sluices on the canal as formal flood defences, and based its Flood Zone assessment and mapping on the assumption that the sluices would fail and remain closed,” the judge said.
Had the sluice gates not been treated as flood defences they would be assumed to remain open and the land surrounding the canal would have been classed as a lower risk flood zone.
Peel and the MSCC argued that the sluice gates have not failed to operate in more than 100 years since the canal was opened, and that undisputed figures show that the probability of failure at a time of flooding is less than 0.01%.
The Court ordered the Environment Agency to pay 70% of Peel Holding's costs, to be assessed, and to make an interim payment of £55,000 within 21 days.