The owner of the mill argued that the Environment Agency (“the Agency”) was responsible for maintaining decking and a side channel pursuant to a 1964 deed with the Essex River Board and separately that the Agency was liable to pay for damage caused by erosion in the channel under paragraph 5 of Schedule 21 to the Water Resource Act 1991 (“WRA 1991”) because of works it carried out in 2001 to install a concrete side weir (in place of an eroding earth weir).  It was common ground that any damage that occurred before 2016 would not be recoverable, but the landowner’s argument was that historically damage was avoided by the Agency taking a more proactive stance.

The Court rejected the claim about the interpretation of the 1964 Deed holding that there was no ambiguity that would justify implying additional terms into the agreement and that the side channel could not be said to be a “control work” under the Deed.  The Court also declined to make a declaration as to whether the agreement could be terminated on notice, as the issue had not yet arisen.
The Tribunal rejected the Claimant’s argument that the Agency was not entitled to reduce the level of maintenance and operation committed to the mill.  The Agency was not responsible for the flow of water through the mill (para.64) and whatever the position in the past – or under the 1964 Deed – that “does not detract from [the landowner’s] ability and responsibility to control the flow” or his “potential liability in nuisance.”  As far as the 2001 works were concerned, the Tribunal rejected the argument that the works were wrong or improper.  Given the artificially elevated channel, there was necessarily a drop from the concrete weir into the channel below.  The design and elevation of the works was proper (paras.78-90).  While a gabion mattress below the weir was failing (after c.20 years), that is normal and the Agency is not liable for that under the WRA 1991 (paras.91-97).  The Tribunal also rejected the argument that the Agency has improperly interfered with the flow of the channel so as to cause erosion, under the principle in Roberts v Gwynfrai DC [1899] 2 Ch 608 (paras.98-ff).  Ultimately, the Tribunal concluded that while erosion had taken place, the claimant himself “could have taken a far more active role in controlling the flow of water in the side channel” and that “[h]is indignation at the Agency’s withdrawal of support from the mills on the River Colne has led him to ignore his own powers and responsibilities, and his failure to operate the mill is likely to have caused much of the erosion of which he complains”.

Ned Westaway and Caroline Daly acted for the Environment Agency.