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• • Planning law is the area of law which is like old wallpaper; there are layers and layers of it. Taking from the top, we have European Community Law and the European Convention on Human Rights, then UK Statute Law, regulations, then national governmental guidance (which is accompanied by explanatory guides which add to it), regional guidance and documentation, structure and local plans and frameworks, supported by supplementary planning guidance. Add to this cases decided by the courts and appeals decided by the Secretary of State and inspectors covering every possible type of development.

    Then 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 should stand and which be overturned. Lastly the local government ombudsman makes decisions which can be referred to in order to ascertain what actions will be recognized as being maladministration which, if injustice is caused, lead to a recommendation of action in favour of individuals.

    It is therefore not surprising that this is a field where lawyers can play a decisive role in many situations.

• • 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 and ruled 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 out with family law. For us, evaluating local government actions and inactions is routine.

• • 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.

• • Judicial Review is the means by which, in general, decisions of public bodies can be considered by the courts and in appropriate cases quashed. Quashing means that the decision under challenge is nullified, as if it had never been made in the first place. Therefore the court only sends it back to the original decision-maker, and gives it guidance as to what it should do to make a valid decision next. It follows that the same decision can be made a second time, though more accurately and more transparently.

    The court’s decision will only be exercised on limited grounds, e.g. if the decision-maker has acted outside its powers, irrationality, unreasonableness to the extent that no reasonable decision-maker could have made it, taking into account irrelevant considerations, failing to address important issues, gross unfairness or apparent lack of impartiality.

    Even if the court determines that the decision is unlawful for one of these reasons, the court does have a discretion not to quash the decision, and an award of costs is likely to be made in favour of the public authority.

    Judicial review applications must almost invariably be made within three months of the decision complained of, and must be brought as soon as possible in any event: delay can be fatal. Notice of intended challenge should be given immediately to the public body concerned, and copied to any interested parties who may otherwise be able to claim that they did not know of the challenge and were prejudiced.

• • 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.

• • Drains and sewers are the subject of extensive legislation and plenty of common law cases. Consequences of malfunctions or lack of capacity are frequently very unpleasant, and we have advised many victims of resulting pollution or flooding.

    Drains in law tend to be pipes serving one property only, and any pipe which carries water or waste from more than one property is a sewer. Sewers in turn are divided into public sewers maintainable by sewerage undertakers, charging standard charges to owners using them, and private sewers which are presently repairable by individual property owners, which can be enforced by environmental health officers.

    We act for householders with sewer problems, whether damaged by tree roots, or constructed defectively, or simply flooded by groundwater. Alternatively, landowners are presented with bills for sewerage work they may dispute. Ideally we show that the sewer in question is in fact a public sewer, and therefore the responsibility of the sewerage undertaker under the relevant rules which are extremely complex. Undertaker’s sewerage maps are not conclusive.

    Negotiating new sewers for new properties requires specialist experience and expertise. Not all information supplied by sewerage undertakers is correct; frequently there is another way to resolve a problem of connection. We also advise clients where developers wish to lay sewers, or use existing drains or sewerage rights to make sure they are getting their fair share of the financial benefits.

• • Following privatisation, electricity generation, the national grid and distribution are all separate functions. We get involved in relation to the exercise of statutory powers, and negotiations with electricity distributors in relation to overhead or underground cables.

    Many cables (and indeed pole mounted transformers) pass over or under property with only a wayleave agreement terminable on a year’s notice at most. If the undertaker wishes to retain the cables it has to negotiate new rights with landowners or apply to the government for statutory rights, or find some other way of supplying consumers. Substantial sums can be negotiated.

    Sometimes undertakers sought long-term wayleaves for nominal rentals, which can have a depressing effect on property sale values. Careful analysis of deeds can sometimes come up with errors on the part of the undertaker which can be corrected on the payment of a capital sum to the landowner.

    Traditional telephone cables are frequently held on wayleaves but mobile telephony has created a new area of planning law for base-stations. Arguing against a base-station requires understanding of industry codes of practice as well as planning regulations and policy.

    Overhead cables sub-stations and base-stations are controversial in relation to safety in close proximity with housing and schools, particularly as to childhood leukaemia. Under the government’s forceful guidance local authorities are strongly advised not to object to base-stations on perceived health risk when compliance with current international codes is certified. Consequently, such challenges need justification in planning rather than perceptions of health risk.

• • 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.

• • 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; Peter Scott developed this principle and represented the claimant in the leading case R (Robinson) v Torridge District Council.

    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.

    Land drainage law can produce some highly complex issues, and we advise clients with regard to the use and maintenance of watercourses, carrying out works in watercourses, including construction of weirs and waterpower installations, and all related issues.

    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 watercourses 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.

• • Fisheries cover sea fisheries and river fisheries for wild fish. Sea fisheries relate to the public right of fishery enjoyed so far as the tide flows and reflows by the King’s subjects, except where prior to Magna Carta a private fishery had been granted by the Crown or is presumed, or where private fisheries have been created statutorily.

    European legislation, UK statutes and sea fishery byelaws introduce many complications. In regulated fisheries only those with licences can exploit the public right.

    We act for fishermen challenging regulations. We advise fishermen as to claimed private fisheries, and act for private fishery owners in protecting their rights.

    Rights of freshwater river fishing usually belong to riparian owners.

    Marine fin fish farms use cages moored in relatively sheltered waters, and have had environmental impacts on water quality and biodiversity.

    Shellfish farmers in sheltered estuaries lay down small fished molluscs, or oysters produced in hatcheries, and grow them to marketable size. Because molluscs are vulnerable to pollution we have taken legal action against UK and Irish governments.

    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 specialist forensic accountants we deal with complex claims against polluters.

• • 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. 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.

• • 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”.

• • A highway is technically a route between two points or termini over which it is recognized 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.