Dr Ben Mayfield examines the dilemma faced by Government in their response to the protection of land that is vulnerable to flooding. He argues that once it is posited that governments have limited resources for the protection of land, informed choices must be taken as to which land is protected. He presents some of the different methods that have been used to place a value on land. He concludes by noting that whilst land can be valued in purely economic terms, it is often the less tangible, sentimental attachments to land that cause the greatest loss when a person is deprived of his or her property.
The winter floods of 2013/14 have been amongst the most severe in living memory. Sustained periods of heavy rain and strong winds saturated the soil, whilst swollen rivers burst their banks and flooded a number of lowland areas in Somerset, Norfolk, the Thames Valley and elsewhere. The loss of life has been much lower than for many disasters around the world, but many land owners have suffered substantial damage to their homes and property.
A Moral Dilemma
In an article written for the Daily Telegraph on the allocation of resources for the protection of land, the chair of the Environment Agency Lord Smith presented the choices facing the government as a stark dichotomy. He stated that we were confronted with a ‘difficult choice’, which ‘involves tricky issues of policy and priority: town or country, front rooms or farmland?’ He went on to contend that:
Flood defences cost money; and how much should the taxpayer be prepared to spend on different places, communities and livelihoods – in Somerset, Lincolnshire, Yorkshire, or East Anglia? There’s no bottomless purse, and we need to make difficult but sensible choices about where and what we try to protect.
Presented in this way, the Government appear to face a classic moral dilemma. Lon Fuller once published a thought experiment titled ‘The Speluncian Explorers’, in which a group of explorers trapped in a cave had to choose between the consumption of one of their party, or the certain starvation of them all. We are fortunate that few natural disasters are likely to present us with such an unpalatable choice, but as floodwater flows towards a populated area, are we justified in diverting this to farmland or less heavily settled villages?
If we accept that it is the role of the Government to protect property rights, we must examine why some rights are protected at the expense of others. William Blackstone might once have claimed that that the right to property was a ‘sole and despotic dominion’, but in practice this has never been the case. National infrastructure developments such as HS2, motorways and the national grid have all yielded winners and losers. Many benefit, but others have their property rights removed as a matter of political expediency. From a property perspective, planning and environmental laws are all statutes of compromise which attempt to balance competing interests in land.
When flood defences are built, policymakers must decide which land should be prioritised. Much has been made of the Government’s cost-benefit analysis of flood protection and the shortfall after Environment Agency budget cuts. This analysis included a number of factors and prioritised the protection of the homes of the less well-off and elderly, presumably to ensure that the cost of repair and disruption fell on the broadest shoulders.
Newspapers frequently report on flood damage running well into the millions of pounds, but financial calculations alone are a poor indicator of the ‘value’ of property, either to the individual or to society as a whole. Radin suggests that economic value is often bested by sentimental attachment, and that certain types of property, including land, can become part of a person’s identity. As Radin observed:
[I]f a wedding ring is stolen from a jeweler, insurance proceeds can reimburse the jeweler, but if a wedding ring is stolen from a loving wearer, the price of a replacement will not restore the status quo – perhaps no amount of money can do so.
Olivecrona also described the attachment between property and the person, and the resulting injury where an individual is deprived of this:
It is especially pronounced with regard to cherished things in daily use or connected with memories. In the case of land it can rise to a high degree of intensity. If a farmer is deprived of the soil which he and his forefathers have cultivated for generations, he will feel it as a severe amputation.
The choice becomes even more complicated when governments have to consider sentimental attachment to property on a regional or national scale, as no valuation of public land can be entirely divorced from its value to society as a whole. The furore that ensued after the Government published plans to sell Forestry Commission land demonstrates that the less tangible values associated with public land should be a significant factor in the creation of public policy.
Rural land can also be valued according to its agricultural productivity, but even the market value of this land is governed by a number of disparate factors. An article published in 2003 was based on a contingent valuation of the Ridgeway National Trail. The study questioned visitors on how much they would be willing to pay to use this resource, giving people a hypothetical scenario whereby addition funds were needed to maintain the trail and giving a range of costs for permit access. By combining the number of visitors with the amount that they would be willing to spend, the survey gave a valuation in the region of £186,000 of public benefit per year for access to the trail.
This multiplier effect has been used to value amenity trees in cities such as London. Is a London plane tree that is visited and admired by many thousands of people every day of greater value than one which is lost amongst a forest of its peers? The forestry commission believes that it is. The application of such a multiplier effect would place a higher value on more populous areas and on more visited attractions, but taken on its own this does not measure the environmental value of land that is a habitat for rare flora and fauna.
If a government is forced to make a choice between property ‘winners’ and property ‘losers’, no attempt to balance property rights will satisfy every party. The primary reason for this is the subjective nature of property values. The law can compensate injured parties, but there are some values attached to property that make this irreplaceable in financial terms. This is especially the case with land, but where land and resources are limited there is a long history of the prioritisation of land use. Although many people connect their identity to personal attachments to land, the foundation of rights in real property is one where the owners’ rights were never absolute. This gives legislators significant power over a commodity that is of great financial and sentimental value. We can only hope that this power is exercised carefully and responsibly.
Ben Mayfield is a lecturer in law at Lancaster University. His primary interests are land and property law, with a particular interest in the law of the countryside. Ben has published on town and village greens, coastal access, rural values and the ‘right to roam’.
You can find out more about Ben’s research at: http://www.lancaster.ac.uk/fass/law/profiles/benjamin-mayfield