Williams and Owen challenge Natural Resources Wales embankment decision

The High Court has dismissed a judicial review challenge to Natural Resources Wales's (NRW) decision to cease maintaining the Tan Lan Embankment, clarifying the distinct statutory roles of flood risk management authorities and internal drainage boards.

In October 2024, NRW announced it would no longer exercise its permissive powers under section 165 of the Water Resources Act 1991 to maintain the two-mile earth embankment on the Afon Conwy. The decision followed a comprehensive viability study concluding that continued maintenance could not be justified under the National Strategy for Flood and Coastal Erosion Risk Management in Wales.

The claimants, who farm land adjoining the embankment, challenged the decision on four grounds: unlawful limitation of the decision to Water Resources Act functions; failure to consider relevant matters; breach of Article 1 Protocol 1 rights; and inadequate reasons.

Statutory framework distinction

His Honour Judge Keyser KC rejected the primary argument that NRW had unlawfully separated its decision-making under the Water Resources Act 1991 from its duties as internal drainage board under the Land Drainage Act 1991. The court held that whilst NRW performs both roles in Wales, these remain "distinct and discrete" functions operating under different statutory regimes.

Crucially, the court found that NRW had no power as internal drainage board to maintain the embankment, as it constituted a bank of a main river. Applying Jones v Mersey River Board [1958] 1 QB 143, the court determined that banks include land adjoining a river that "performs or contributes to the performance of the function of containing the river". The embankment's proximity to and function regarding the Afon Conwy and Afon Maenan brought it within this definition.

Relevant considerations

The court dismissed arguments that NRW failed to consider its internal drainage board responsibilities when making the flood risk management decision. The Outline Business Case explicitly recognised potential impacts on the internal drainage district, but NRW was under no obligation to subordinate its Water Resources Act decision to considerations relevant to a separate statutory scheme.

NRW had properly considered funding mechanisms, including precept payments, but reasonably concluded that maintenance could not be justified economically. The fact that maintenance had ceased in 2020 during the review process did not demonstrate a closed mind.

Human rights proportionality

Permission was refused on the Article 1 Protocol 1 ground. The court distinguished this case from Kolyadenko v Russia (2013) 56 EHRR 4, where state negligence regarding reservoir management caused foreseeable flooding. Here, NRW was neither exercising control over the claimants' land nor depriving them of it. The landowners had no legal right to flood protection, and common law placed responsibility for safeguarding land on owners themselves.

The court held it was "circular to set up the latter entitlement as the basis for a Convention right based on property rights" and found no engagement of Article 1 Protocol 1. Even if engaged, the extensive cost-benefit analysis in the Outline Business Case, conducted with specific regard to the Welsh National Strategy, demonstrated appropriate balancing of interests.

Adequacy of reasons

The inadequate reasons ground was described as "wholly unreal and totally unarguable". The Outline Business Case provided comprehensive explanation of the decision rationale. The absence of a separately published "Withdrawal of Maintenance Methodology" did not create uncertainty about the basis for the decision.

The judgement reinforces that public authorities exercising flood risk management powers must act consistently with national strategies prioritising protection of people and homes. Where limited resources require prioritisation, authorities possess considerable discretion in allocating those resources without being required to cross-reference distinct statutory functions or maintain private land indefinitely.

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