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Neil Chaplin

MSc Environmental Monitoring and Assessment, Coventry University School of Science and the Environment, 2003

Personal Injury Litigation as a Barrier to the Adoption of Sustainable Drainage Ponds - A Proposal for Legislative Reform


Anthropological interference with the hydrological cycle causes a number of detrimental problems to the environment as recognised at the 1992 Rio de Janeiro Earth summit. The principle of sustainable development under Agenda 21 attempts to redress this balance. Artificial and impermeable surfaces increase the amount of runoff generated during precipitation that causes flood problems and environmental pollution; sustainable drainage systems (SUDS) have been developed to deal with these problems and to dispose of storm water locally close to its source. SUDS have clear environmental benefits and are being actively promoted by the Environment Agency and CIRIA as having recreational benefits to local communities. However the widespread use of wet ponds to attenuate and store stormwater runoff in populated urban areas presents a number of safety problems through the risks of drowning, ice, blue green algae and water borne pathogens.

The recent heatwave in the UK highlighted the danger when water and people are in close proximity with a spate of tragic drownings. The owner or occupier of a SUDS pond has a duty of care to visitors, under the Occupiers’ Liability Acts of 1957 and 1984, to ensure they are reasonably safe and the associated risk of litigation, following a drowning or injury at a SUDS pond is seen as a barrier to the adoption of SUDS by local authorities and water companies.  There are three options by which the fear of litigation can be reduced. In the short term SUDS operators can implement a number of safety features in accordance with legal requirements but this does not remove liability as an adoption barrier. In the longer term, a legislative change seems to be required (as currently being examined by DEFRA in relation to SUDS). There may be some potential for exemption under the Countryside and Rights of Way Act 2000 by extending the provisions to encompass SUDS under the liability exemption clause. The most promising means of removing the litigation adoption barrier is where a SUDS pond conforms to the safety requirements under a new SUDS Code of Practice that would allow the site to be operated whilst exempt from the Occupiers’ Liability Acts. This document focuses on the liability of the SUDS operator, it must be considered that designers and or builders could still be held liable for negligence. 

Download paper (PDF 477kb)

Contact the author: neilchaplin84@hotmail.com

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