Environmental and Planning Law

If there is any business sector that needs specialist legal services more than any other, it probably agriculture and aquaculture. It is trite but true that farmers are the custodians of the rural environment, but in addition to law of general application such as employment, legislation now not only covers the specialised forms of tenancy which apply to agriculture, from agricultural holdings to the custom of Evesham but also the constantly changing legal regimes for the CAP, special planning and tax regimes, comprehensive environmental legislation and food legislation.

Successful farm management now requires a very high degree of professional skills as well as the love of the farming life and experience. It needs the support of specialised legal expertise to obtain the best outcomes from a range of the difficulties which inevitably will arise in agricultural work, and Parkinson Wright can offer a unique mix of technical skills, often at the leading edge, in this subject area.

Almost every human activity involves emissions to air, noise and odour, and these were subject to early statutory environmental health controls. Now some processes are governed by integrated pollution prevention and control under Environmental Protection Act of 1990 through the Environment Agency and councils (who also regulate other businesses only for air pollution). Firms now have to achieve BAT (best available technology). There are extensive guidance documents and complex appeal regimes.

All other air pollution is controlled by local authorities, who have statutory duties to inspect their district for nuisances as well as to investigate all complaints of nuisance. If (broadly speaking) they are satisfied that either there is a nuisance, or prejudice to health, or that such is likely to occur or recur, then they must serve an abatement notice. This can simply tell alleged offenders to stop the nuisance, or specify particular steps. There are defences e.g for businesses to show that what is being done is “best practical means”.

We help clients to ensure that local authorities treat their complaints seriously. Complaining of “statutory nuisance” can help, and we can explain to the local authority that their view is incorrect, or non-compliant with their statute.

We are also engaged by businesses which are on the receiving end of complaints, and we will advise them on how to comply with local authority requirements, appeal them if they are incorrect, or to show that what they are doing is in fact “best practical means”.

Strong fences make good neighbours; an old but true saying. Most properties today comprise of registered land. Therefore the filed plan at the Land Registry is usually the first point of reference. However, the filed plan only indicates the position of a boundary in very general terms and cannot be relied upon. For this reason it is particularly important to retain the original title deeds, without which Land Registry errors can be very hard to correct.

In any event the filed plan will be based upon an ordnance survey plan on 1:1250 or 1:2500 scale which has a margin of error of up to 2 metres and the width of a line on the plan can measure roughly 0.5 metre on the ground. Nevertheless our experienced litigation department can advise in relation to all sorts of property disputes regarding boundaries, problems with trees and hedges. We can advise with regard to the old deeds and registered land (current deeds and unregistered land), plans, the surrounding circumstances and obtaining witness evidence in the event of a dispute. We have good links with specialist surveyors some of whom work on a national level to avoid or resolve boundary disputes which can be unpleasant – an Englishman’s home is his castle etc.

We can advise on party wall rights, problems arising over the building of extensions and our experienced planning department can assist not only in relation to your own planning applications but possible problems caused by those of your neighbours. Neighbours themselves, even where the boundaries are clear, can cause problems by their behaviour their activities and possibly even their threats and violence. We have extremely strong experience in obtaining injunctions in such cases-sometimes it is necessary to tread softly but other times it is necessary to act decisively and firmly. We fit the action to the circumstances.

Since the European Communities Act of 1972 gave effect to the Treaty under which the UK became part of the EEC, common standards have gradually been set across Europe. This is laid down in directives, which each member state then has to put into its own statute book and see that the outcomes required are achieved in practice.

We used European law by preparing reports to enable the European Commission to take action against the UK state resulting in designation of 100+ shellfish waters, designation of thousands of miles of rivers, cleaning up the waters concerned, and, arising from an enormous dump-site for dead animals in the foot and mouth outbreak, the repeal of government exemption from planning legislation.

We have also used European law to sue or challenge UK authorities, particularly in relation to sites and species protected under the Habitats Directive.

Where there is conflict European law as laid down by the European Court of Justice prevails over domestic law. If obligations under a directive are not fulfilled all state bodies (including privatised utilities) are legally compellable to produce the outcome required by the directive.

In legal terms European law adds an extra dimension to the legal system, as does the European Convention on Human Rights, now incorporated into UK law through the Human Rights Act. We specialise in the use of Article 8 and Article 1 of Protocol 1 of the Convention in relation to environmental issues affecting individuals.

Rights of freshwater river fishing:

On lakes and other artificial bodies of water the fish are private property, mostly coming from inland fish farms.  Regulation of these is highly complex, including abstraction from streams and groundwater, discharges to river, land drainage, fish health, movement controls and medicines, water quality, weirs and sluices, bypass channels, protection of biodiversity – and planning.

These farms are vulnerable to pollution and with special forensic accountants we deal with complex claims against polluters.

With climate change, flash flooding is becoming far more common, and more people are finding difficulty in maintaining flood insurance.  We advise clients in relation to their rights to sue for flood damage, and on the duties of local authorities to serve formal notices on parties to reduce the risk of flooding.  We also advise clients on how they can legally prevent their properties being flooded, and how they can overcome objections to development based on floodplain zoning.

Problems arising from water flowing over ground or underground without having a defined channel are a completely different field; decided common law cases have been less than sympathetic to a local authority whose waterworks dried up after a neighbour spitefully took the water out of the ground for himself, and another landowner whose property collapsed as a result of water taken out of the ground by his neighbours.

Statute, however, provides a number of controls on the abstraction of water from watercourse or from groundwater, and this is particularly important for uses such as fish farms which depend on having, in effect, a river flowing through them.

A highway is technically a route between two points over which it is recognised that the public at large has rights to pass and repass, on foot only, on horseback or cycles, with non-mechanically propelled vehicles, or with motor vehicles.  If it is reasonably alleged such a right of way exists, then a county council must make an order.  If the landowners or others object, then we represent clients at public inquiries at which an independent inspector will decide, as a matter of fact and law, whether the way exists, and what rights can be exercised over the land concerned.

Many highways can be presumed to exist after being used for twenty years.  Alternatively it can be proved that they exist from historic documents, because once a highway is created by dedication, it can never cease to be a highway – unless the land ceases physically to exist.

Maintenance and improvement of highways is also sometimes a moot point; we have been involved in compelling a highway authority to undertake work to make a right of way safe that was temporarily closed. 

Many properties have no direct access to a highway, and private rights of way attached to them can be controversial, particularly when development is proposed.  Rights can be limited by deed, or by the nature of long use.  Also rights cannot be used to gain access to other land.  Interpretation of deeds is imperative, and we have forty years experience of advising clients.

Working for a local authority is eye-opening.  It is very difficult for someone who has never been on the inside to appreciate what the pressures are, what the difficulties are, how people cope differently, and how they vary enormously from one section of a local authority to another.  The whole framework of democratic or bureaucratic decision-making (or both) reflects a corporation created by statute, regulations and guidance, but within that having tensions between elected members and officers which can range from high levels of co-operation (or subservience) to what is virtually open warfare.

Consequently it is a great advantage for a lawyer in private practice to have had the experience of being part of the legal teams in local authorities, to understand and empathise with how local government and local government officers work, to appreciate what is a good decision and what is a poor one; to judge when to work with the grain and enable a decision in the client’s interest, and when it is necessary to confront and ultimately to invoke legal action or official complaints to address unjustified conduct on the part of a local authority or officer.

Local government law is a specialised field, and one with which most lawyers in private practice have virtually no dealings with.  For us, evaluating local government actions and inactions is routine.

There are the procedural rules which guide planning authorities as to how they make planning decisions; statutory provisions, regulations, guidance, and the principles developed by judicial review and planning appeal decisions of the courts to say what decisions are approved.

Planning also includes obligations and condition that a developer has to comply with such as Section 106 Agreements and Community Infrastructure Levy (CCL) along with conditions such as agricultural ties on new developments in the countryside.

Generating power from renewable energy is a key element in combatting climate change by substituting clean energy for energy fossil fuels. Also micro-renewables provide an opportunity for individuals to protect themselves from rising fuel costs by generating their own electricity and selling any surplus. As technology improves and costs increase this will be become more and more beneficial.

Legal input is generally most needed in relation to larger-scale projects which, in relation to wind power, tend to require environmental impact assessment and sometime appropriate assessment or wildlife licensing in relation to habitats and species of European importance. When it comes to inland water power there is a need for very serious input in relation to all sorts of water law, both common law and statute. Energy from waste brings into operation European waste law and specific legislation in relation to the processes.

Everyone generates waste. The European Waste Directive has resulted in comprehensive controls on managing and disposing of waste in Part II of the Environmental Protection Act 1990, and related regulations. Additional restrictions apply to wastes which are classified as hazardous.

The question of what is waste has provoked a great deal of case-law in the European Court of Justice. Essentially, it depends on the intention of the party perceived as discarding it, but judged objectively. Consequently, it is possible to avoid material being classified as waste by ensuring that it is treated as a material resource to meet a particular need before the point of discarding. We therefore advise clients wishing to make use of secondary materials to enter into appropriate contracts for specified material, thus avoiding the necessity of obtaining waste permits and preserving non-waste status of land and therefore its value.

Worse, devaluation arises from land identified as contaminated for the purposes of Part IIA of the EPA 1990. An industry has developed providing environmental reports which focus on the question whether the land may be identified and current owners forced to clean it up. However other reported information can be extremely damaging to value and marketability. QualitySolicitors Parkinson Wright can provide detailed analysis of the other information contained in the environmental search and call in other experts.

We can advise clients how to overcome pollution issues affecting development and to avoid identification as contaminated land. Early action is imperative.

It is sometimes wrongly supposed that consumers have a contract with their local water undertakers. Though private sector businesses, legally when acting as statutory water supplier their functions are entirely statutory, and when they err in water supply the remedies are in an area of the law called breach of statutory duty. Problems with public water supply therefore generally are dealt with in the framework of the Water Industry Act 1991 and regulations).

Overall standards are mostly governed by European legislation incorporated in UK legislation. Bottled water is covered by European legislation also, though it is not always understood that standards are higher for tap water than for bottled water.

When water mains blow up, again, water undertakers are statutorily responsible for damage occurring without proof of negligence. Establishing legal liability for poisoning through water supply has been much more difficult, as witnesses in civil proceedings from Camelford and Northern Ireland. People who are hypersensitive to water quality issues may have difficulty in pursuing claims.

Private water supplies, however, mostly concern common law; there have been plenty of decided cases. Local authorities have statutory duties of testing, and there are significant penalties when pollution of private supplies is caused. In addition, the water undertaker can be called in by the local authority when supplies fail, and the local authority can also serve notices in relation to private water supplies to remedy problems.