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Abstract
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.
Contact
the author: neilchaplin84@hotmail.com
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