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Stuart J
Stuart J, Property Solicitor
Category: Property Law
Satisfied Customers: 22946
Experience:  Senior Partner at Berkson Wallace
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I am a main river riparian owner in Oxon (not the Thames). I

Customer Question

I am a main river riparian owner in Oxon (not the Thames). I recently effected a small repair to a bund (flood defence) erected by the National Rivers Authority (now Environment Agency) in 1995/6 along the length of the main river for which I'm responsible (c.200 metres). The repair was to make the height of the bund consistent along its length and covered a width of roughly 1 metre by 8 inches deep. The area repaired had been damaged following tree felling carried out at the request of neighbours who were concerned about the trees falling into their properties on the other side of the river. The EA are now saying that the repairs could have increased the flood risk elsewhere and I have been reported to their enforcement team. I understand that as a Riparian owner I have a duty to maintain the banks and any defencs that are on it. Can you suggest how I should respond to the EA and where the burden of proof lies regarding the 'increased flood risk' for what was a minor and immaterial bank repair? The river flows east to west and the elevation is north to south with open fields to the south. Thanks, Martyn
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: I have written to the EA explaining the background to the erection of the bund and the reasons for the repair following which they have referred the case to their enforcement team. I am in possession of numerous documents from Oxford County Council, the local Parish Council, the local flood group and the EA stating my responsibilities to mainatin the bank and the flood defences so this came as a surprise to me.
JA: Have you talked to a lawyer about this?
Customer: No this is the first step - I really dont know which lawyer to approach who has expertise in this area for something which is so immaterial/minor
JA: Anything else you want the Lawyer to know before I connect you?
Customer: I really just want to know if I can challenge the EA's decision without incurring big legal fees over something so trivial. The river flows through our village and there are dozens of far more material/major illegal bank repairs and river flow incursions which have been reported to the EA and they never take any action.
Submitted: 16 days ago.
Category: Property Law
Expert:  Virtual-mod replied 15 days ago.
Hello,

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.

Thank you!
Customer: replied 12 days ago.
Please continue trying to find an answer to my question, thanks, Martyn
Expert:  Stuart J replied 11 days ago.

What you have probably got is a standard letter which covers all eventualities, good, bad, indifferent.

The reason it is been referred to the enforcement team is that whoever you wrote to doesn’t know what they were doing!

 

You ask whether you can challenge the decision. They haven’t actually made a decision, it’s just been referred and until you hear from the enforcement team, you don’t know whether you are going to be prosecuted or not. Only when you hear back from them would you be in a position to challenge/defend any prosecution on the basis that you talk about.

 

Although basic physics, water is absolutely level and therefore there only needs to be a bit of a dip in the defences a bit further along in the water will find that weakest link.

 

However just because there are other illegal repairs doesn’t mean they have been condoned, it just means that the person has not been challenged or indeed the Agency may not have found out about it yet.