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Law Society Flood Risk Practice Note Update

The Law Society earlier in the year reissued their Flood Risk Practice Note, reiterating the importance of flood risk as a key transactional issue in any residential and commercial transaction. With conditions this winter similar to 2007, its easy to see why a focus on the issue of flooding has once again been brought forward.

Solicitors, and rightly so, are not qualified to give advice on flood risk. Neither are they qualified to comment or interpret technical flood reports. They have enough to worry about. Law Society practice notes are therefore published to provide their member lawyers with advice and guidance on what is considered best practice. The note therefore covers the key stats around flood risk, sets out a process for obtaining information on as well as how risk can be managed.

A key focus of this is around insurance. ‘Section 2.2’ of the note has been updated to outline the great work that Flood Re have done in providing affordable cover to people and properties in areas that wouldn’t stand a chance in the usual free place.

With solicitors not being experts, making enquiries to the seller and obtaining a commercial search to provide a flood risk assessment will be standard process for most firms. Given this will be standard practice, ‘Section 4.3 Commercial Searches’ is also a key section to understand. As any lawyer will know, there are a lot of reports out there for a lawyer to buy, all of which will say its ‘comprehensive professional opinion’, is the ‘market leader’. However, if this were the case, the second sentence of ‘Section 4.3’ wouldn’t be needed which reads:

The market for flood searches is not regulated. There are different types of searches available with marked variations in the cost, quality, range, analysis and interpretation of data.

Unfortunately for the searches industry,this statement couldn’t be truer and its often extremely hard to tell what a report contains and how accurate it is. Just because data is in a report, doesn’t mean it’s in the overall assessment. Just because there is an overall assessment, doesn’t mean its correct.

How reports generate assessments and the pros and cons of these methods are rarely communicated to the lawyer. This is an unfortunate fact. From my experience, usually people just throw out industry tag lines such as ‘Professional Opinion’ or ‘Comprehensive’ rather than providing any real information on the reports limitations. Because of this industry message, it’s easy to see why solicitors often default to a report they have simply used before or in a lot of cases just request ‘the usual search’. Frustratingly for a lawyer, while obtaining a reliable flood report should be simple, sometimes it just isn’t the case.

The key question that would come to mind to me when reading that Practice Notes rather damning synopsis of commercial searches, do I know what I’m using and is there something better?

Rather than leaving you high and dry trying to work this out for yourselves, the Practice Note does provide some further guidance:

When reporting the results of any flood search to your client, you should tell them that you are not qualified to advise on technical matters regarding the results and that they should raise any questions they have with either their surveyor or the consultant who prepared the report.

A good flood report will have functionality whereby a consultant in some cases will review the data. This is the minimum level of assessment that Landmark provide for their customers. Any Landmark flood assessment will be reviewed by a consultant if data identifies a high risk. Therefore, if this is the case there will be the  consultant who prepared the report available to speak to, if required.

However, if you truly want a consultant prepared report in line with what the practice note advises, then you should obtain your reports from Argyll Environmental. Argyll are flood risk experts. From the overall risk assessment, to risk commentaries, through to bespoke recommendations, a consultant has determined what is appropriate on a site-specific basis, following the review of an extremely comprehensive suite of data and its supporting attributes.

I’ve fallen into the trap of using a tag line, so to back it up, data that will have a bearing on the overall assessment includes: EA Flood Zones, EA Risk of Rivers and Seas, Defences (location of and design standard), designated ‘Areas Benefitting from Defences’, Surface Water Flood Risk data, Groundwater Flood Risk Data, the river network (type of watercourse, proximity and elevation above) and historic flood events (when they occurred, proximity and elevation above).

The is the same whether it’s a commercial transaction or residential. We are therefore not report providers, but environmental consultants and your risk advisors, always on hand to walk you through the risk assessment should you need assistance.

As far as AI and computer learning has come into the industry in recent years, you can’t talk to the computer who provided you a basic automated assessment. Alongside providing reports for lawyers as pre-acquisition due diligence and risk advice, we work with developers, architects and commercial property investors providing high detailed Flood Risk Assessments.

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