Land Compensation Manual Section 10: Special cases with the compensation code

Part 3: Authorities responsible for land drainage

The Valuation Office Agency`s technical manual covering all aspects of compulsory purchase and compensation.

General

10.51 Responsible bodies

The authorities or boards that have responsibilities for land drainage, in addition to the Department for Environment, Food and Rural Affairs (DEFRA), include the Environment Agency, Internal Drainage Boards, Flood Defence Committees and Local Authorities.

10.52 Environment Agency

Under the provisions of the Environment Act 1995 the functions in relation to land drainage previously discharged by the National Rivers Authority were transferred to the Environment Agency. The Environment Agency exercises a general supervision over all matters relating to land drainage, but the general discharge of its functions is through the Internal Drainage Boards.

10.53 Internal Drainage Boards

Internal Drainage Boards are constituted under the provisions of section 1 Land Drainage Act 1991 (LDA 1991) and exercise general supervision over all matters relating to the drainage of land within their respective internal drainage districts. The main function of a Board is to maintain, and where necessary improve, the main drains and interior water courses in the district.

10.54 Local authorities

In connection with the drainage of small areas a local authority may be authorised by a scheme confirmed by DEFRA to execute drainage works for the improvement of land where the constitution of an internal drainage district for that purpose would not be practicable. In addition a local authority has all the powers of a Drainage Board under section 14 LDA 1991 for the purpose of preventing flooding or remedying or mitigating any damage caused by flooding and under section 25 LDA 1991 for the removal of obstructions from watercourses.

Acquisition of land

10.55 Compulsory powers

Compulsory powers of acquisition of land are available under section 62 LDA 1991 for any purpose of the LDA 1991.

10.56 Basis of compensation

Compensation for the acquisition of land should be assessed on the basis of the statutory compensation code (see Section 2 of this Manual).

Acquisition of interest in or new rights over land

10.57 Compulsory powers

Under the provisions of section 62(4) LDA 1991 Internal Drainage Boards may exercise compulsory powers of acquisition so as to acquire interests in or rights over land by way of securing the creation of new interests or rights in their favour as well as by acquiring rights already in existence.

10.58 Basis of compensation

Where an Internal Drainage Board exercises compulsory powers the Acquisition of Land Act 1981 and the Compulsory Purchase Act 1965 shall have application to the acquisition, modified as prescribed by the Internal Drainage Boards (Acquisition of New Interests and Rights) Regulations 1977 (SI 1977 No 84).

Entry to execute works

10.59 Powers

Section 64 LDA 1991 provides that any person duly entitled to do so may enter on land, accompanied by any such person and any such equipment as may be necessary, for the purpose of exercising any function of an Internal Drainage Board. Their general powers are set out in section 14 LDA 1991 and include the maintenance or improvement of any existing watercourse or drainage work, or to construct new watercourses or drainage works.

10.60 Basis of compensation

Section 14(5) LDA 1991 provides that where injury is sustained by any person by reason of the exercise of the powers in that section, an Internal Drainage Board shall be liable to make full compensation to the injured person. Section 14(6) provides that any dispute concerning the amount of compensation shall be determined by the Upper Tribunal (Lands Chamber).

10.61 Meaning of injury

The High Court case of Marriage v East Norfolk Catchment Board [1950] 1 KB 284 supports the view that it is necessary in order to obtain compensation under section 14 LDA 1991 that the injury suffered would have been actionable but for the provisions of this section. Thus where injury is caused by work executed under the statutory power on land in another ownership, if that injury would not have been actionable had the work been done not under those powers but by the other owner, no claim could be substantiated under section 14 LDA 1991.

10.62 Betterment

There is no provision in LDA 1991 for set-off against the compensation of any benefit to land in the ownership of the claimant other than that upon which the work has been done, or which has been lost or damaged by the carrying out of the works.

In the case of W R Glazebrook v Gwynedd River board [1963] 25 EG 188 the Lands Tribunal held that the effect of the drainage works upon other land in the ownership of the claimant should be taken into account.

A somewhat similar point under section 68 Lands Clauses Consolidation Act 1845 was considered in Eagle v Charing Cross Railway Company [1867] LR 2 CP 638 and broadly was decided on the principle that the general improvement in the value of property was common to all the neighbourhood, but that injury to the plaintiff’s premises was peculiar to the plaintiff and he was entitled to compensation on this basis.

Advice has been received that the LT’s decision in ‘Glazebrook’ is wrong and if a case occurs where the principle arises and the issue is material the valuer should ask the Drainage Board whether it agrees or wishes to follow the line laid down in ‘Glazebrook’. Where an authority indicates that it wishes to apply the decision in Glazebrook this may be accepted, but if in such a case there were a reference to the Upper Tribunal (Lands Chamber) or a prospect of such a reference the valuer should notify the PS Professional Guidance Team at the earliest possible moment.

Disposal of spoil

10.63 Statutory powers

Under the provisions of section 15 LDA 1991 a Drainage Board may, without making payment therefore, appropriate and dispose of any material removed in the course of the execution of work for widening, deepening or dredging any watercourse.

10.64 Deposit of spoil

Further, a Drainage Board may deposit any material removed as in Paragraph 10.63 above (unless the matter so deposited would constitute a statutory nuisance within the meaning of Pt III Environmental Protection Act 1990) on the banks of the watercourse or within the width of land adjoining the watercourse sufficient to enable the material to be removed and deposited by mechanical means in one operation. The meaning of banks is largely a matter of fact to be decided in accordance with the circumstances of a particular case but it might be fairly said that the word in relation to a river indicates so much of the land adjoining or near a river as performed, or contributed to the performance, of the function of containing the river. The Drainage Board has discretionary power to pay compensation where injury is sustained but otherwise compensation is not payable except where the injury could have been avoided by the exercise of the powers by the Authority with reasonable care, when compensation will be payable under section 14(5) LDA 1991 as if powers under that section had been exercised (Paragraph 10.60 above).

Contractor’s liability

10.65 Claims for damages

A claim for damages that arises from contractor’s negligence in respect of works under the LDA will have recognisable similarity with the kind of claim arising in similar circumstances in connection with road works. The general rule is that contractors are independent of the employing Authority and the Authority is not liable for damage caused by the contractor’s negligence. However in Pattinson v Finningley Internal Drainage Board [1971] 218 EG 1105 the Lands Tribunal referred to the general rule mentioned above but nevertheless considered the matter to be concluded by the wording of section 40 LDA 1961 (now included in section 63 LDA 1991) and held the Internal Drainage Board to be liable for injury arising from the actions of the contractor.

Should any case arise where this point is raised details should be submitted to the PS Professional Guidance Team.

Disputes

10.66 Reference to Upper Tribunal (Lands Chamber)

Disputes as to the amount of compensation payable under the LDA should be referred to and determined by the Upper Tribunal (Lands Chamber).

10.67 to 10.70 Reserved