Coastal erosion and the law of nuisance: alter tidal flow at your peril

The Upper Tribunal (Lands Chamber) has recently handed down its decision in respect of the unusual case of the erosion of Hopton Beach, Norfolk.

Bourne Leisure, which owns the Hopton Holiday Village, has sued Great Yarmouth Port Authority for compensation in excess of £15m. Following the construction of the new Outer Harbour at Great Yarmouth, which extends 600m out into the North Sea, the beach at Hopton, which is 3.5km south of the Outer Harbour, ‘disappeared’, the sea defences collapsed and subsequently the cliff adjoining the old beach and access route to the beach suffered collapse.

Bourne Leisure had to incur in excess of £9m simply to install new sea defences and repair the damaged cliff on top of other losses it suffered. A new 900m rock revetment was installed by Bourne Leisure in 2014-15 along with nine 50m rock groynes in what was believed to be the largest privately funded sea defence scheme at the time.

In providing a decision in respect of preliminary issues in the claim, the Upper Tribunal has ruled that the pleaded claim would give rise to an action in nuisance (absent statutory authority) and in doing so has ruled:

• There is no rule of law that prevents liability if the erosion caused by the Outer Harbour just brought forward erosion which would have occurred in the future in any event

• There still can be a claim in nuisance even though the eroded beach was a distance 3.5km down the coast from the Outer Harbour

• An action in nuisance could be maintained where the Outer Harbour works complained of caused the alteration in the flow of sea water

• Even though the chain of causation pleaded comprised changes in tidal patterns which, over time, caused changes to sea bed levels which in turn affected waves approaching the beach which then increased the rate of erosion, an action in nuisance could still be maintained

• The cost of the new sea defence works at Hopton and repairs to the cliff could be claimed against Great Yarmouth Port Authority and Bourne Leisure was not restricted to claiming just the diminution in value of its land.

The Upper Tribunal distinguished its decision about Hopton Beach from previous cases whereby landowners had avoided liability when the owner created a structure on their land to protect it from the sea which had the effect of diverting the water onto another’s land and causing damage. In previous cases, landowners avoided liability as they were defending their own land against a ‘common enemy’, the sea, and it was held to be a ‘reasonable user’ of the land to erect sea defences. In the case of Hopton Beach the landowner in question, the Port Authority, created the Outer Harbour for commercial use, and not to defend its land from the sea so it was unable to rely on the ‘common enemy’ rule to avoid liability.

Where developers are creating structures in water it is clear they can be held liable if the consequent alterations in coastal processes – including tidal flow – cause damage to other landowners.

• Bourne Leisure’s case against Great Yarmouth Port Authority is ongoing and the substantive issues are due to be determined at trial in 2017.

Photo by .Martin.