William Howarth

Visions, Strategies and Realisation

Compared to other environmental areas such as land use, waste management, air quality and biodiversity, comprehensive strategic planning of water management in England has been dilatory. This is not to say that strategic planning has been entirely absent in water management, but that it has been undertaken in a piecemeal way, with numerous sectoral initiatives dealing with water services, flood defence and environmental and ecological water quality. Until now there has been no overarching statement of their interrelationship.

Brexit and the United Kingdom Water Environment

This paper notes the UK’s impending departure from the European Union, following the Brexit Referendum in 2016, and investigates the implications of this for environmental laws generally and, more particularly, for water protection legislation. At the time of writing, the UK Government’s Brexit White Paper is the focus of attention, setting out plans to repeal the European Communities Act 1972 and to replace existing EU law by corresponding national legislation. Taking the EU Water Framework Directive as a case study, the later part of the paper examines the inherent difficulties in this strategy in the particular context of water protection. It is suggested that there are major difficulties in finding national law counterparts for many of the EU obligations. Moreover, the exercise of trying to address environmental quality concerns through a purely national framework neglects the essentially transboundary character of many environmental problems and the need for a coordinated supra-national response.

Water Pollution Control: The Economics and Ethics of Making Polluters Pay

This paper explains and reflects on recent proposals by the United Kingdom government for the use of economic instruments in relation to the protection of the aquatic environment. Some cautionary views are expressed about the role of such instruments, with reservations based upon considerations of practicability and workability, but there are also deeper ethical concerns. The polluter pays principle, which underlies calls for greater use of economic instruments and may have some seriously unsatisfactory implications in the search for sustainable development. Although the paper is primarily concerned with policy discussions that have taken place in the United Kingdom over recent years, it is important to make clear form the outset some of the national preconceptions upon which it is based. The United Kingdom has a remarkably long history of pollution control legislation and much of it is concerned with water quality. The objective of this paper is to offer some observations on the respective roles of economics and law in delivering policy objectives for the aquatic environment.

Flood Defence Law after Marcic

The Court of Appeal decision in Peter Marcic v Thames Water Utilities (2002) raises some profound issues concerning common law liability for private nuisance and liability for infringement of human rights. Previously there had been recognised to be good reasons for excluding the liability of sewerage undertakers for sewer flooding, but these have been overturned by the decision. The finding of liability for environmental human rights infringements also defeats the purposeful avoidance of general statutory liability upon undertakers for sewer flooding and raises fundamental concerns about the respective roles of the courts and Parliament in contexts of this kind. The broad-based reasoning of the Court raises the implication that the same approach should be applied in contexts beyond that of sewer flooding. However, application of the same principles to the broader context of protection from flooding generally raises significant doubts as to the realistic scope of a right to such protection. Critical discussion, therefore, follows as to the need for careful qualification of any proposed right to flood defence and the failings of the Court in not taking account of the complexity of what is involved in dealing with liability for phenomena that arise from natural causes.

Living with Flooding: Nuisance Liability and Cost Allocation

The claimants were owners and occupiers of a garden centre which had suffered extensive damage following flooding. The flood occurred after a nearby watercourse burst its banks because a culvert under a road was unable to take the flow of water following a period of heaw rainfall. The defendant highway authority had control of and responsibility for the culvert which formed part of the highway. At the time of installation the culvert was adequate to take the natural flow of the watercourse. However, subsequent development in the catchment, including the construction of a motorway and business park, had caused the amount and rate of flow of the watercourse to increase. The defendants had known since at least 199 1 that the culvert was no longer adequate. Hence, the central point at issue was whether the highway authority, which had responsibility for a culvert which had become inadequate due to factors beyond its control, was under a duty to enlarge the culvert when it might reasonably be expected to give rise to a flooding nuisance. A further factor was that the defendant’s initial claim that the cost of replacing the culvert would be E145,OOO was contradicted by evidence from the authority’s own files indicating the actual cost to be approximately f81,OOO. By comparison, the damage sustained by the claimants as a result of the flood was agreed at f 123,000.

Accommodation without Resolution? Emission Controls and Environmental Quality Objectives in the Proposed EC Water Framework Directive

This article discusses the fundamental values and strategies of EC environmental policy and law in the context of Community water legislation. In particular, emphasis is placed upon the proposal for a Water Framework Directive, which will have far-reaching implications for water management in the Member States, and bring about a substantial rationalisation of existing water Directives. The proposal introduces a significant number of innovations intended to secure ‘good status’ for water by programmes of measures for river basin management aimed at realising the environmental objectives of the Directive and, as a framework Directive, enabling further ‘priority substances’ to be brought within the system of controls. However, it is suggested that the proposal raises, but fails to resolve, key issues in environmental protection strategy and perpetuates confusions about the role of emission controls and environmental quality objectives. Whilst the Dangerous Substances Directive (76/464/EEC) adopted a ‘parallel’ approach towards emission controls and environmental quality objectives, the Water Framework proposal seeks to introduce a ‘combined’ approach, but neither of these satisfactorily recognises the distinct roles of the two kinds of strategy. Whilst the proposal is welcomed in allowing for more comprehensive consideration of the quality of the aquatic environment, it fails to recognise key distinctions in environmental protection strategy.