Should residents living in flood-and erosion-prone areas be entitled to compensation?
Greg Guthrie from Royal Haskoning and Malcolm Kerby from the Coastal Concern Action Group go head to head on the issue.
Reproduced from the Spring 2007 issue of "The Edge" - the magazine of CoastNet.
Greg Guthrie
In the Netherlands, for the state not to defend is illegal. In other countries, for it to do so, would be unthinkable. In the UK, there is a permissive power to defend against flood and erosion. There is no duty. Furthermore, the purpose is in providing benefit to the community and society. It is not for the protection of individuals as such.
This may be understood in looking at the arguments leading up to the Coast Protection Act (CPA) 1949. The concern was that it was unjust that local communities should bear the full cost of defence when there was benefit to the nation as well as the individual and local community. The argument was that the cost should be borne by each in proportion to their benefit.
The rules depend on the society in which we live; there is no universal right that a nation should compensate for loss to the individual. In our society, provision of defence is for the benefit of community, not the individual. Why then should there be compensation to individuals when defence is not considered, or when defence, which was previously considered beneficial to society (and provided on that basis) is withdrawn because it is no longer considered sustainable?
Malcolm Kerby
The Coast Protection Act 1949 (minor revamp of the 1939 Act) means we are trying to address 21st century problems, global warming etc, with effectively a 68 year old toolkit. It doesn't work, it is no longer relevant. We now live in a more democratic and reportedly, socially just society. Except when it comes to coast management.
Overall strategic control of coast management has been given to the Environment Agency, a leviathan quango. Not much democracy there then!
Government-controlled second generation Shoreline Management Plans (SMPs) are being introduced which are calling for a significant number of people to lose their land and property (homes) in the wider national interest entirely without financial, or indeed any other, mitigation of those losses by the wider nation! Not much social justice there then!
If the "cost should be borne by each in proportion to their benefit" can we expect the cost of the proposed Thames barrage (probably billions) to be borne by Londoners alone? The whole coast and its estuaries are national assets enjoyed by all and the wider nation must bear the full cost of management including compensation for those individuals forced to make the ultimate sacrifice, total loss.
GG
I fully agree that the coast and estuaries are a national asset and need to be managed as such. However, there is also value to the local communities and to individuals. Where there is no conflict in maintaining common values in balance, it may be argued that the individual benefits incidentally, the cost being borne by the nation or the community (as represented by the local authority); it is not for the individual's benefit that management is undertaken.
Where there is conflict that, say, an individual wishes to maintain defences which would cause damage to other individuals or to the national benefit, then, as in any other area of life, that person should not benefit to the disadvantage of others; that is social justice. If on the other hand an individual suffers to the betterment of others, there is already mechanism for compensation. These balances and checks are already within the CPA 1949 (how farsighted for out of date legislation).
Far from being a government controlled process, SMP2s are a realistic examination of these potential conflicts. The SMP2s are not "calling for a loss of homes"; it is the realism of coastal processes. Without SMPs we would be managing by default.
MK
The first paragraph of Greg's response is the usual smoke and mirrors and the second paragraph would perhaps be better if it read thus:
Where there is conflict as a result of individuals or Government wishing to either maintain or discontinue defences which would cause damage to other individuals or communities or to the national benefit, then as in any other area of life, that individual or Government should not benefit to the disadvantage of others; that is social justice!
The mechanism for compensation within the CPA 1949 is woefully inadequate and flawed. Indeed that Act does not sit comfortably alongside The Human Rights Act 1998 or The European Convention on Human Rights, particularly regarding Article 1 of the First Protocol, Article 8 and Article 14,
SMP2s are absolutely controlled by Government. No maritime authority has the freedom to produce a SMP which falls outside Government parameters, no matter how inapplicable those parameters may be. The way SMPs are currently being used to legitimise and perpetuate the massive underfunding of coast protection rather than sound effective long term management means we are already managing " by default". Whether we manage effectively or by default, compensation is the only way to unlock the process.
GG
Article 8 of The European Convention on Human Rights states that: "There shall be no interference by a public authority with the exercise of..." anyone's "right to respect for his private and family life, his home..." "except such as is ...necessary in a democratic society in the interests of ...the economic well-being of the country. ..freedoms of others". Is this not exactly the argument I am putting forward? The intervention by the state is judged by benefit to society, but should not prevent individuals intervening unless this causes damage to the state or others.
To dismiss the argument as "smoke and mirrors" neither negates the argument nor is helpful and, while I would agree that ideally there is a lack of resource on coast protection, this again does not really affect the discussion about where money is best spent.
SMP1 highlighted the problems, SMP2 confirms this. Shooting a second messenger does not make the message wrong. What, however, is needed is for the SMP to be in context of broader coastal management. The SMP is isolated without this. ICZM aims to deliver an agreed future for society.
Where individuals suffer in the delivery of this future, there is argument for compensation, but not in relation purely to a lack of state funding of defence.
MK
If SMP2 is the "second messenger" then it should not only be shot but buried as deep as possible. The second generation SMPs manage nothing, it would be more accurate to describe them as plans to legitimise the massive underfunding of our coast. What they are is any chosen consultant's prediction of our future coast against the backdrop of underfunding, the only evidence we (the stakeholders ) have to judge on is the certain knowledge of how inaccurate some so-called expert (consultants) predictions are! We are facing an uncertain future with climate change. It will not serve us well if we choose to ignore or run away from the problems climate change and global warming may bring for financial short termism.
Change is inevitable, to what extent we can only guess, but we should neither be frightened of it nor shrink from addressing it. We need to change both the mindset and the toolkit for dealing with it on the coast. We must keep an open mind to all useful tools to deal with that change effectively. We must embrace that change in the best interests of all the people and most importantly we must use every tool at our disposal ie hard defences, soft defences, no defences and above all compensation that we may make the most difficult decisions for sound effective coast management rationale unencumbered, rooted in a socially just framework.
Greg Guthrie is an Associate with the Coast and Rivers Division of Royal Haskoning.
Malcolm Kerby is Co-ordinator of the Coastal Concern Action Group, Happisburgh.