LAW AND DISPUTE RESOLUTION

Environmental Law

• Public nuisance re‐visited (John Pointing, Kingston University, UK) 7

• Surveying the sustainable and environmental legal and market challenges for 20
real estate (Colleen Theron, LexisNexis, UK)
• UK climate change law: securing a low carbon economy by recourse to experts 31
and government obligations? (Mark Stallworthy, Swansea University, UK)
• Understanding property rights in carbon: a methodological inquiry (Jason Prior 45
and Spike Boydell, University of Technology Sydney, Australia)
• Building regulations and control in the face of climate change (Henk Visscher, 62
Frits Meijer and Laure Itard, Delft University of Technology, The Netherlands)
• Managing Urbanisation and Environmental Protection in Australian Cities: 72
Approaches for Integrating Biodiversity and Urban Growth in Sydney (Peter
Williams , The University of New South Wales, Australia)
• Sustainable Development Legal Ownership in Danish Urban Planning Law (Helle 87
Ina Elmer, Ministry of the Environment, Denmark)
• Severn Tidal Barrage Project: a legal paradox? A case study looking at the 101
possible conflict between climate change policy and environmental legislation in
the UK (Tilak Ginige, Fraser Ball and Natalie Sparks, Bournemouth University,
UK, and Ann Thornton, Lindsay Carrington Ecological Services Ltd, UK)
• Assessing the roles of regulation, litigation, management and environmental 130
advocacy in protecting groundwater resources in the USA (Robert W. Schultz
and Donald C. Daniels, AMEC Geomatrix, USA, and Thomas Vandenburg, Dongell
Lawrence Finney LLP, USA)
• Legal challenges on controlling carbon capture and storage and land planning 142
(Inga‐Liisa Paavola, University of Helsinki, Finland)
• An Integrated Product Policy Approach to Products and their Impact on Energy 153
(Rosalind Malcolm, University of Surrey, UK)
• Retrofits and renewals in buildings for energy efficiency and building 173
regulations and control in local authorities in South Africa (Joachim E Wafula
and Alfred Talukhaba, University of the Witwatersrand, South Africa)
• The quest for sustainable homes and reduced emissions from buildings: 191
getting it right at the planning stage (Julie Adshead, University of Salford, UK)

Building Regulations

• Equivalent performance in Dutch Building Regulations (Nico Scholten, 207

Expertiscentrum Regelgeving Bouw, The Netherlands)
• The validity of daylight calculations in rights to light cases (Peter Defoe and Ian 221
Frame, Anglia Ruskin University, UK)
• Probabalism, the way out for performance based building regulations (Nico 249
Scholten, Expertiscentrum Regelgeving Bouw, The Netherlands)
• Automated compliance checking using building information models (David 266
Greenwood, Stephen Lockley, Sagar Malsane and Jane Matthews, Northumbria
University, UK)
 • Uncertainty of building regulation for refurbishment projects in Malaysia 275
(Azlan Shah Ali, University of Malaya, Malaysia, Adi Irfan Che Ani, Universiti
Kebangsaan Malaysia, Malaysia, and Wan Zahari Wan Yusoff, Universiti Tun
Hussein Onn Malaysia)
• Study of building contractors’ compliance to building regulations in Cape Town 283
(Bimbo Windapo and Keith Cattell, University of Cape Town, South Africa)

Construction Law

• The duty to co‐operate in construction contracts ‐ an international review 298

(Evaldas Klimas, Vilnius University, Lithuania)
• Legal Implications of New Equipment Anti‐Idling Requirements (Thomas 312
Korman and Lonny Simonian, California Polytechnic State University, USA)
• When clients do not pay: a critical analysis of the legal remedies available to 320
the South African building and civil engineering contractors and consultants
(Tinus Maritz, University of Pretoria, South Africa, and Dirk Robertson, Greene
Consulting Engineers, South Africa)
• Legal Issues Associated with Building Information Modelling (Lonny Simonian 341
and Thomas Korman, California Polytechnic State University, USA)
• A New Frontier for the Construction Court (Michael Reynolds, Anglia Ruskin 350
University, UK)
• Building Information Models as contract documents: common practice for the 364
US construction industry ‐ a preliminary report (Darren Olsen and J. Mark Taylor,
Auburn University, USA)
• Legal issues of partnering in construction: an analysis of case law (Faraziera 374
Mohd Raslim, Nur Emma Mustaffa and Jamaluddin Yaakob, Universiti Teknologi
Malaysia, Malaysia)
• Dispute Resolution: A Preliminary Report. Recent Changes to the AIA 388
Documents (J. Mark Taylor, Auburn University, USA)
• A conceptual model for effective maintenance of productivity records: a tool 401
for facilitating the analysis of disruption claims (Nuhu Braimah, Brunel
University, UK)
• Investigating the relationship between construction contract documentation 414
incompleteness and loss‐and‐expense claims: practical considerations
(Florence Walker and Stephen Pryke, University College London, UK)
• Is there a need for public private partnership projects in Singapore? (Asanga 440
Gunawansa, National University of Singapore)
• BIM Implementation and the Law: An International Literature Review (Brodie 459
McAdam, University of Salford, UK)
• Defect Liability Period: Employer’s Right and Contractor’s Liabilities Examined 467
(Ayodeji Sunday Ojo , Ministry of National Development, Seychelles)
• Standard form of contract for decoration, repair and maintenance works for 482
use by laymen (Paul H.K. Ho, City University of Hong Kong)
• Inhibiting and enhancing impingements on second year undergraduate 495
construction law education (Tim McLernon and Robert Eadie, University of
Ulster, UK)
Alternative Dispute Resolution

• Dispute resolution alternatives: problems, preference and process (Carl van Zyl, 513
Basie Verster and Stephan Ramabodu, University of the Free State, South Africa)
• A critical analysis of the potential application of dispute resolution boards in 527
the Chilean construction industry (Alfredo Serpell and Maria Alejandra Medina
Oyuela, Pontificia Universidad Católica de Chile, Chile)
• An investigation of construction lawyer attitudes to the use of mediation in 544
Scotland (Andrew Agapiou and Bryan Clark, Strathclyde University, UK)
• Mediators: towards a code of good practice for construction mediators (Penny 560
Brooker, University of Wolverhampton, UK)
• Opinions of legal professionals regarding the selection of appropriate resolution 587
method in construction disputes (Deniz Ilter, Istanbul Technical University,
Turkey)
• The development of statutory adjudication in the UK, 1998 to the present day 595
(Peter Kennedy, Lisa Cattanach and Edward McLuskey, Glasgow Caledonian
University, UK, and Janey Milligan, Construction Dispute Resolution Ltd, UK)
• A proposal for a ‘Dual Scheme’ of statutory adjudication for the building and 609
construction industry in Australia (Michael Brand, The University of New South
Wales, Australia, and Philip Davenport, Solicitor of the Supreme Court of
New South Wales, Australia)

International Law

• Comparative analysis of aspects of damages; consequential loss and 626

classification (Maree Chetwin, University of Canterbury, New Zealand)
• The capitalization rates for the valuation of the land uses in the Spanish law 638
context (Vicente Caballer, Natividad Guadalajara and Elena De la Poza,
Universidad Politécnica de Valencia, Spain)
• International contracts and the choice of law in New Zealand (Nicky 651
Richardson, University of Canterbury, New Zealand)
• The legal consequences of breach of government undertakings to investors 664
(Asanga Gunawansa, National University of Singapore)

Housing Law

• Children’s citizenship: the dilemma of housing and property law (Simon 679
Hoffman, Swansea University, UK)
• The housing policies for remodeling and renovation in Spain (María Luisa 690
Gómez Jiménez, University of Málaga, Spain)
• Balancing housing need and prevention of homelessness in England (Patricia Ng) 702

Professional Ethics

• Black Economic Empowerment in South Africa: an update (Charles Nsibande, 720

Bogoje Properties, South Africa, and Elizabeth Pienaar, University of the
Witwatersrand, South Africa)
 • Who owns the copyright of architectural works and designs? (Phebe Mann, 733
University of Reading, UK)
• Identity as a manifestation of organisational culture (Sai On Cheung, Hoi Yan 748
Pang, So Yan Tam and Hoi Yan Chan, City University of Hong Kong)
• A single ethical code for the construction industry: what do young professionals 762
think? (Jim Mason, University of the West of England, UK)
• Constructing a Professional Credentialing Scheme for the Construction Industry 775
(Jenny Casmus and Melissa Daigneault, Texas A&M University, USA)

Planning Law

• Spatial planning to the test of property rights in Switzerland: an innovative land 787
management approach to coordinate spatial planning goals with property rights
interests (Philippe Weber, University of Lausanne, Switzerland)
• Implications of Commons Act 2006 for the registration of land as a town or 802
village green (Phebe Mann, University of Reading, UK)
• The contemporary urban commons ‐ a case study of Darling Harbour, Sydney 809
(Spike Boydell, University of Technology Sydney, Australia, and Glen Searle,
University of Queensland, Australia)
• Compensation Rights for Land Use Regulation: The Findings of Cross‐national 827
Comparative Research (Rachelle Alterman, Technion ‐ Israel Institute of
Technology)

Doctoral Session

• Key note address: New horizons in teaching law (Michael Reynolds, Anglia 842
Ruskin University)
• The proposed directive on industrial emissions: what will change regarding the 850
best available technique (BAT), the Finnish perspective (Eeva‐Maija Puheloinen,
University of Helsinki, Finland)
• Minority protection doctrines: from company law and equity to strata title 860
(Rachel Leow, National University of Singapore)
• Land registration and information asymmetry problem in sub‐Saharan Africa 877
urban real estate markets (Stanislaus Adiaba, Felix Hammond, David Proverbs,
Jessica Lamond, Colin Booth and Robin Bloch, University of Wolverhampton, UK)
• Conceptualising the Singapore Real Estate Investment Trust (Seah Xiande 894
Aaron, National University of Singapore)
• Does the Planning Act 2008 Enshrine and Heighten the Statutory Immunity 930
Defence? (Francis Moor, University of Salford, UK)
• A principled response to pre‐contractual remuneration (Kelvin Koh) 953

Property Law

• The function and efficiency of anticipated recording in China’s Real Estate 973
Transactions (Li Bin, Harbin Institute of Technology, China)
• Where will European Property Law go next? Tenancies and Property after 988
Hutten‐Czapka v Poland and FEANTSA v Slovenia (Jane Ball, University of
Sheffield, UK)
• The challenges of integrating the carbon reduction scheme into commercial 1006
leases (Susan Bright, New College, University of Oxford, UK)
• A commercial right to buy? (Jill Morgan, Swansea University, UK) 1020
• Judges, child trespassers and occupiers' liability in the built environment 1032
(Luke Bennett, Sheffield Hallam University, UK)
• Maps, land and land title ‐ are they synonymous? (Carl Calvert, University 1065
College London, UK, and Pierre Clergeot and Nicolas Chauvin, l'Ecole
Supérieure des Géomètres et Topographes, France)
• Constructing the notion of market value of a property in the context of 1076
liability of valuer (Stanislawa Kalus, University of Silesia in Katowice, Poland)
• Property loss due to coastal erosion: judicial, legislative and policy 1093
interventions (Mick Strack, University of Otago, New Zealand)
• Adverse possession of boundary land: lessons from abroad (Una Woods, 1105
University of Limerick, Ireland)
• Assessment on problems of issuances and transferences of strata title in 1122
Malaysia: the perception of the owner (S.N Kamaruzzaman, Naziah
Muhamad Salleh and S.A.F AlZawawi, University of Malaya, Malaysia)
 7

Public nuisance re-visited?

John Pointing
Barrister and Senior Lecturer in Property Law, School of Surveying & Planning, Kingston
University.

Abstract:
Recent decisions involving environmental disasters, such as the Buncefield refinery
explosion and the failure of Corby Borough Council to remediate the disused Corby
steelworks site, have suggested that the orthodox position on public nuisance is no longer
sustainable. Instead of conceptualising it as a property tort operating on a larger scale than
private nuisance, public nuisances may also be seen as a separate, personal rights based tort.
The flexibility of public nuisance has been apparent over several centuries and this continues
to make it a useful cause in a civil action involving threats to the life, health and safety of the
public as well as an environmental offence for egregious crimes.

Keywords: common law, environmental protection, public nuisance, tort

Introduction
Since time immemorial the boundaries of nuisance have disturbed tidy-minded lawyers and
jurists. Often, confusion results from the assumption that a public nuisance is merely a larger-
scale form of private nuisance affecting a large (but unquantified) section of the public. On
the other hand, public nuisance can be seen as an environmental tort (and offence), as the last
ditch protecting the right not to be adversely affected by the unlawful act or omission whose
effect was ‘to endanger the life, health, property, or comfort of the public’ (Archbold, 2010:
31-40). This conceptualisation posits a quite separate tort from an unlawful interference in a
proprietoral right, germane to private nuisance.

The tension between property-based and rights-based forms of public nuisance has been
brought into focus by a number of important cases, culminating in the Court of Appeal’s
decision in respect of the failure of Corby District Council to properly remediate the site of
 8

the old Corby steelworks.1 An important implication of Corby is that it strengthens the
position of public nuisance as a separate, rights-based tort from private nuisance: one that
does not depend on the victim having a proprietorial interest in land. Dyson LJ quoted with
approval the position in the United States, where: ‘Unlike a private nuisance, a public
nuisance does not necessarily involve interference with use and enjoyment of land’.2 He
added:
...it does not follow that the right which is interfered with in a public nuisance case is
properly to be regarded as a right to enjoy property. The essence of the right that is
protected by the tort of private nuisance is the right to enjoy one's property.... The
essence of the right that is protected by the crime and tort of public nuisance is the
right not to be adversely affected by an unlawful act or omission whose effect is to
endanger the life, safety, health etc of the public.3

For a very long time the seminal work on the boundaries of nuisance has been Professor
Newark’s piece published over 60 years ago in the Law Quarterly Review (Newark, 1949).
This article is very appealing to traditional property lawyers, who prefer their hedges neat,
their boundaries tightly drawn. Professor Newark’s position is simple: the proper place for
nuisance is that it is a tort to land, or one directed against the plaintiff’s enjoyment of rights
over land, including interference with an easement or profit (Newark, 1949: 482). Any
deviation from this position creates uncertainty and conceptual turmoil amounting to heresy.
The Court of Appeal in Corby, in turning away from such orthodoxy, rejected Professor
Newark’s monistic formulation, finding that public and private nuisance should be seen as
separate torts protecting different rights.4

There is some evidence that straying from orthodoxy produces perplexing and confused
results, so vindicating Professor Newark’s anxieties. For example, a government department
has managed recently to confuse itself so completely that in its guidance to local authorities
on implementing the Licensing Act 2003 it proclaims that a public nuisance, such as noise
emanating from licensed premises, includes: ‘low-level nuisance perhaps affecting a few

1
Corby Group Litigation v Corby Borough Council [2008] EWCA Civ 463.
2
American Law Institute, Restatement of the Law, Second, Torts 2d (1979) chapter 40 para 821B (h).
3
Corby Group Litigation (n 1 above) at [29].
4
Corby Group Litigation (n 1 above) per Dyson LJ at [27-30].
 9

people living locally’(DCMS, June 2007: para 2.33). This natter will be considered further
towards the end of this paper.

Judges who stray beyond the proper boundaries are brought to order
The prim and proper monistic conception of nuisance becomes adulterated once the idea is
admitted that personal injuries could be compensated in an action for public nuisance. The
basic proposition placed before the Court of Appeal as a preliminary issue in the Corby
litigation by the defendant local authority was that compensation for personal injuries should
not be available to the victims of a public nuisance.5 In the final action heard in the High
Court, Corby District Council were found liable in negligence, for breach of statutory duty
and in public nuisance.6 The local authority were held responsible for birth defects caused
from the exposure of 18 mothers to toxic chemicals released because of the inadequate
remediation of the old Corby steelworks which they had supervised.

The earlier, Court of Appeal decision in Corby had been on a preliminary issue about whether
the import of two recent House of Lords decisions in Canary Wharf7 and Transco8 was such
that earlier cases awarding compensation for personal injuries in public nuisance had been
wrongly decided. But the overarching authority employed by the local authority in Corby at
the Court of Appeal was none other than Professor Newark, or rather, his venerable text. So
the question arises of whether The Boundaries of Nuisance truly deserves the sacerdotal
qualities heaped upon it?

Professor Newark places the blame for setting ‘the law of nuisance on the wrong track’ on
Mr Justice Fitzherbert, for it was he who ‘sent subsequent generations wrong in their law’ in
deciding that an action could be maintained for damages for personal injuries caused by an
obstruction to the highway (Newark, 1949: 483-4). Thus it was his Lordship who, in 1535,
during the reign of Henry VIII, uttered the words unlinking nuisance as an exclusive tort to
land and allowing the possibility of claiming an award of special damages for the
consequences of an obstruction to the highway (Spencer, 1989: 74). No doubt Fitzherbert CJ
was doing what all good common law judges do when trying to find a justification for
providing a remedy to a meritorious claim: he strained the law.

5
Ibid at [10].
6
Corby Group Litigation v Corby District Council [2009] EWHC 1944 (TCC).
7
Hunter v Canary Wharf [1997] AC 655.
8
Transco plc v Stockport MBC [2003] UKHL 61; [2004] 2 AC 1.
 10

As if a man make a trench across the highway, and I come riding that way by night,
and I and my horse together fall in the trench so that I have great damage and
inconvenience in that, I shall have an action against him who made the trench across
the road because I am more damaged than any other man.9
For Lord Cooke, giving his minority judgement in Canary Wharf, ‘if this was indeed an
indiscretion on Fitzherbert’s part, to rue it now might seem a little late’.10 Quite so.

Over the centuries, the main focus of nuisance cases has been on incompatible uses of land
between neighbours. These cases have primarily been to do with private nuisance: with
interferences in the use or enjoyment of land. Some have been concerned with physical
damage to the land; relatively few cases have dealt with public nuisance as their central point.
The House of Lords in Canary Wharf had little to say about public nuisance. In respect of the
interference in television signals, Lord Cooke found ‘no material difference... between public
and private nuisance’.11 This is surprising given the proportion of Her Majesty’s subjects
who had been materially affected by the dust nuisance and from interference in their
reception of television signals caused by the construction of the Canary Wharf tower. But the
position of the majority of the House of Lords in Canary Wharf represents the high point of
monistic orthodoxy, in which public nuisance is eschewed as an independent tort and private
nuisance firmly put in its place as a property-based tort (Kidner, 1998; Wightman, 1998).

Public nuisance in the 21st Century

Civil actions in private and in public nuisance have been available for a long time. Public
nuisance is also a crime; an either-way offence for which an unlimited fine and/ or a
maximum sentence of life imprisonment are available on conviction in the Crown Court.12
The crime of public nuisance is defined in very broad terms in Archbold (2010: 31-40) as
follows.
A person is guilty of a public nuisance (also known as common nuisance), who (a)
does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of
the act or omission is to endanger the life, health, property, or comfort of the public,

9
Y.B. 27 Hen. 8, Mich. pl. 10.
10
Hunter v Canary Wharf (n 7 above) at 718.
11
Ibid, at 722.
12
In one of the most serious public nuisances in modern times, a sentence of 17 years' imprisonment was upheld by the
Court of Appeal in R v Bourgass [2007] 2 Cr App R (S) 40. The convict had been the prime mover in a conspiracy to
commit acts of terrorism (but charged as a conspiracy to cause a public nuisance) involving the use of poisons and
explosives intended to destabilise the community by causing disruption, fear and injury.
 11

or to obstruct the public in the exercise or enjoyment of rights common to all Her
Majesty's subjects.
This definition was accepted by Lord Bingham in R v Rimmington as ‘clear, precise,
adequately defined and based on a discernible rational principle’, a definition which applies
as much to the tort of public nuisance as to the crime.13

Civil actions in public and private nuisance are not mutually exclusive. In determining the
preliminary issues arising from the Buncefield oil storage explosion, the High Court rejected
a monistic view of nuisance:
It is accordingly difficult to discern any difficulty in categorizing the incident at
Buncefield as a public nuisance … A very large number of people were affected.
Those who had an interest in land suffered private nuisance. The explosion
endangered the health and comfort of the public at large. Subject to establishing a loss
which was particular, substantial and direct … there is a claim in public nuisance.14

Environmental forms of public nuisance will include those caused by smells, noise, waste
deposits and water pollution, but there is no exhaustive list for this common law form of
nuisance. Examples include: quarry-blasting;15 emission of noxious smells from a chicken-
processing factory;16 storage of large amounts of inflammable material;17 allowing refuse and
filth to be deposited on vacant land in a densely populated part of London;18 holding an all-
night ‘rave’ in a field;19 holding noisy events, such as motocross.20

In the civil action of Attorney-General v PYA Quarries Ltd, Denning LJ21 decided that the
basic requirement for a public nuisance is for it to be so:

13
R v Rimmington; R v Goldstein [2006] 1 AC 459; [2005] UKHL 63 at [7, 36]. Lord Bingham’s speech is a comprehensive
analysis of the law of public nuisance, and his words on the rationality of the principle have great authority.
14
Colour Quest Ltd and Others v Total Downstream UK Plc and Others (Rev 1) [2009] EWHC 540 (Comm) at [434], per
David Steel J; reversed in part (but not on the public nuisance parts) by Colour Quest Ltd v Total Downstream UK Plc
[2010] EWCA Civ 180.
15
A-G v PYA Quarries Ltd [1957] 2 QB 169.
16
Shoreham-by-Sea UDC v Dolphin Canadian Proteins (1972) 71 LGR 261.
17
R v Lister and Biggs (1857) 26 LJMC 196.
18
A-G v Tod Heatley [1897] 1 Ch 560.
19
R v Shorrock [1993] 3 All ER 917. In this case the defendant farmer was found guilty of public nuisance for a ‘rave’
organised by another person but taking place on the farmer’s land whilst he was elsewhere. Mr Shorrock was found guilty
on the basis that he knew or ought to have known that there was a real risk of the event causing a public nuisance.
20
East Dorset DC v Eaglebeam Ltd [2006] EWHC 2378 (QB).
21
Per Denning LJ in A-G v PYA Quarries Ltd [1957] 2 QB 169, at 190–191. The applicability of this passage to criminal
proceedings in pubic nuisance was doubted by Lord Rodger in R v Rimmington; R v Goldstein [2005] UKHL 63 at [44].
 12

widespread in its range or so indiscriminate in its effect that it would not be

reasonable to expect one person to take proceedings on his own responsibility to put a
stop to it, but that it should be taken on the responsibility of the community at large.
So if a class of people or a neighbourhood suffer sufficiently from an unreasonable
interference in their use of land or from physical damage to their property, then a public
nuisance action could be brought by the local authority. A person could sue those
responsible22 in a relator action brought in the name of the Attorney-General if he can prove
that he suffered special damage over and above that of the community at large.23

A prosecution for public nuisance may be appropriate for egregious environmental crimes. In
the major oil pollution incident caused by the grounding of the Sea Empress, the Milford
Haven Port Authority pleaded guilty in the Crown Court to a strict liability offence under
section 85(1) of the Water Resources Act 1991. They received a fine of £4 million, reduced
on appeal to £750,000 by the Court of Appeal. The conviction was the result of a plea
bargain in which the Environment Agency dropped the public nuisance charge on the
indictment in exchange for a guilty plea for the lesser charge. The late Michael Hill QC, who
prosecuted Milford Haven Port Authority on behalf of the Environment Agency, conceded
(during a conference held by the United Kingdom Environmental Law Association) several
years later that dropping the more serious charge may have been a mistake.24

Unlike a person, who can sue only by way of a relator action in the name of the Attorney-
General, a local authority can bring an action in public nuisance in its own name under
section 222 of the Local Government Act 1972. The local authority may do so where it
‘considers it expedient for the promotion or protection of the interests of the inhabitants of its
area’. In Railtrack plc v Wandsworth LBC25 the local authority sought an injunction and a
declaration that the company should be held responsible for the costs of cleaning the
pavements from the faecal deposits of pigeons roosting in the girders underneath the railway

22
The person responsible could be a local authority, as in the case of Corby Group Litigation v Corby DC [2009] EWHC
1944 (TCC), where the council was found liable for public nuisance in causing, allowing or permitting the dispersal of
dangerous or noxious contaminants that resulted in birth defects.
23
Establishing what comprises special damage is problematic. In the Delphic words of Mr Justice More-Bick, in Jan de Nul
v NV Royale Belge [2002] 2 Lloyd’s Rep 700 at 715: ‘In the end the question whether the plaintiff's injury is sufficiently
“special” and “direct” must depend very much on the facts of the case.’
24
The Crown Court prosecution is reported in Environment Agency v Milford Haven Port Authority And Andrews (The “Sea
Empress) [1999] 1 Lloyd's Rep 673.
25
[2001] EWCA Civ 1236; [2002] QB 756.
 13

bridge of a south London railway station. The council succeeded in obtaining a declaration
and the court found the company liable in public nuisance for damage caused by the pigeons.

A common element is necessary for a public nuisance to be proven, as distinct from a series
of nuisances affecting different individuals as separate instances. A common element may be
present where there is a sufficiently large number of individual private nuisances and where
the offence affects individual victims simultaneously. In PYA Quarries Ltd, Romer LJ26
opined:
Some public nuisances (for example, the pollution of rivers) can often be established
without the necessity of calling a number of individual complainants as witnesses. In
general, however, a public nuisance is proved by the cumulative effect which it is
shown to have had on the people living within its sphere of influence. In other words,
a normal and legitimate way of proving a public nuisance is to prove a sufficiently
large collection of private nuisances.

The courts have given no precise guidance as to what might constitute a sufficient number of
individuals. The Court of Appeal in PYA Quarries Ltd, somewhat quaintly, referred to ‘a
class of Her Majesty’s subjects’, but did not place a number on the persons needing to be
affected by the quarrying activity to bring it within the scope of a public nuisance.27 Romer
LJ did say that it was not necessary to prove that every person in the locality of the nuisance
needed to be affected, adding that for an injunction to be granted in public nuisance a
‘representative cross-section of the class’ would have to be affected.28 The use of the word
‘representative’ in this context is curious since it implies a sample; perhaps his Lordship
meant it to mean a significant proportion of the total number that could be affected by the
nuisance.

A series of separate acts affecting individual members of the community would not
constitute the necessary common element required to establish a public nuisance. In the
criminal case of R v Rimmington, in which the defendant was accused of distributing hate
mail to a number of individuals, Lord Rodger found that ‘a core element of the issue of public
nuisance is that the defendant’s act should affect the community, a section of the public,

26
A-G v PYA Quarries Ltd [1957] 2 QB 169, 187.
27
Ibid, 184.
28
Ibid.
 14

rather than simply individuals’.29 Consequently, the prosecution for a public nuisance failed
as each of the letters constituted a separate act of vile racism.

There is another, crucial way of distinguishing public from private nuisances besides the
‘common element’ requirement. The Court of Appeal in Corby30 rejected the formulation of
public nuisance as needing to be based on an interference with rights to enjoy land in favour
of the right not to be adversely affected by the unlawful act or omission whose effect was to
endanger the life, health or safety of the public. The latter formulation is thus akin to a
personal rather than a proprietorial right. The Court of Appeal’s decision in Corby relied
heavily on that of the House of Lords in R v Rimmington and R v Goldstein.31 The use of a
non-proprietorial rights-based formulation in these decisions could be seen to give a new
lease of life to public nuisance both as a crime and as a tort. Corby also provides further
justification for allowing recovery of damages for persons whose health, life and safety have
been particularly endangered by the unlawful act or omission in question.

The crucial case for distinguishing public nuisance from private nuisance and for defining it
as a separate, personal rights-based tort sufficiently affecting the public with a common
element, is the High Court decision in Colour Quest.32 Although concerned with preliminary
issues in the Buncefield litigation, the consideration of public nuisance is given a very full
treatment which has not been subject to challenge at the Court of Appeal.33 In the High Court,
David Steel J came to the following conclusion:
No suggestion emerges from the authorities that, where a sufficient body of the public
has been subjected to the nuisance, the only claim lies in public nuisance and any
claim in private nuisance is barred or vice versa:
a) Private nuisance involves interference with someone's private right to enjoy his
own land. Public nuisance involves the endangering of the health, comfort or property
of the public.
b) It follows that a collection of private nuisances can constitute a public nuisance: but
it does not follow either that in consequence the claim in private nuisance is subsumed

29
[2005] UKHL 63 at [47]. After Hunter v Canary Wharf [1997] AC 655, in which the House of Lords overruled the Court
of Appeal decision in Khorasandjian v Bush [1993] QB 727, it would not be arguable to claim that the sending of race hate
letters could constitute a private nuisance, since this act would not be a tort against a property right.
30
Corby Group Litigation v Corby Borough Council [2008] EWCA Civ 463.
31
[2005] UKHL 63.
32
Colour Quest Ltd and Others v Total Downstream UK Plc and Others (Rev 1) [2009] EWHC 540 (Comm).
33
Colour Quest Ltd v Total Downstream UK Plc [2010] EWCA Civ 180.
 15

or that a public nuisance involving interference with health or comfort cannot be

freestanding.34

The basis for his Lordship’s argument is that public and private nuisances should be seen as
separate torts, protecting different categories of rights. But where there is a common injury, a
private nuisance can become a public nuisance. Just before the passage quoted above, his
Lordship had found that:
a private owner's right to the enjoyment of his own land is not a right enjoyed by him
in common with other members of the public, nonetheless any illegitimate
interference, being the very same interference contemporaneously suffered by other
members of the public, constitutes a common injury satisfying the public nature of a
public nuisance.35
Whilst this may be a correct statement of the law, some will find this position defies logic.
At the very least it is unfortunate to be stuck with such a fuzzy boundary between a private
and public nuisance.

Noise and the Licensing Act 2003

Public nuisances can result from the behaviour of crowds. Even before the Industrial
Revolution, the owner of premises attracting a motley crowd largely drawn from the ‘ragged,
criminal and dangerous classes’ could be liable in nuisance (Himmelfarb, 1984: ch 15). In
Betterton, Holt CJ found that:
playhouses are not in their own nature nuisances; but only as they draw together great
numbers of people and coaches, and sharpers36 thither, which prove generally
inconvenient to the places adjacent.37
In R v Moore, the defendant used his premises for the lawful activity of pigeon-shooting,
which attracted great crowds. In finding against him Lord Tenterden opined:
The defendant asks us to allow him to make a profit to the annoyance of all his
neighbours; if not, it is said we shall strain the law against him. If a person collects
together a crowd of people to the annoyance of his neighbours, that is a nuisance for
which he is answerable. And this is an old principle.38

34
Colour Quest Ltd and Others v Total Downstream UK Plc and Others (Rev 1) [2009] EWHC 540 (Comm) at [432].
35
Ibid, at [430].
36
The Oxford English Dictionary defines a ‘sharper’ as ‘a cheat, swindler, rogue; one who lives by his wits and by taking
advantage of others; esp. a fraudulent gamester’. Today’s equivalent might be a merchant banker or a market trader.
37
Betterton’s Case (1680) Holt 538.
38
R v Moore (1832) 3 B & Ad 184; 110 ER 68.
 16

Such cases illustrate the existence of an established line of authority in which public nuisance
succeeded as a cause of action to control noise and the associated problems of crowds where
the problem existed outside the defendant’s premises. It was not a requirement that the
offending activity be confined to what took place within the premises as the problem was
compounded on the surrounding land. This line of authority fell into abeyance by the end of
the nineteenth century, but is relevant to the noise implications of crowds in and around
public houses as this comes within the scope of the Licensing Act 2003.

The Licensing Act 2003 requires licensing authorities to form a judgment about what
constitutes public nuisance and decide what is necessary to avoid it by attaching conditions to
premises licences and club premises certificates.39 Avoidance of public nuisances – such as
from noise, light pollution, noxious smells and litter - is therefore a licensing objective.
Licensing and responsible authorities are also required to assess the impact of the licensable
activity on persons living and working in the vicinity when coming to conclusions on
licensing conditions (DCMS, June 2007).40

Local authorities and the police are the front-line authorities for making judgements about
whether a state of affairs might amount to a public nuisance. Unfortunately, neither of these
entities has much experience in bringing actions in public nuisance. Local authority
environmental health departments utilize their statutory powers under section 80 of the
Environmental Protection Act 1990, but these apply in respect of statutory nuisance which
has its own procedure. The modern police force is placed in the invidious position of having
very little (if any) experience or expertise with respect to the prosecution of environmental
public nuisances.

The problem of controlling public nuisance for regulators is further compounded because
changes to the licensing system came into effect less than two years before the ban on
smoking was imposed. The application of the Health Act 2006 to ban smoking in all
enclosed work places and public spaces has included pubs, restaurants, members’ clubs and
entertainment venues. It has resulted in increased noise disturbance from nicotine addicts and

39
Licensing Act 2003, s 4.
40
Licensable activities includes the provision of regulated entertainment as well as the provision of alcohol. Schedule 1 to
the Licensing Act 2003 sets down types of regulated entertainment.
 17

their associates congregating outside premises where licensable activities take place.
Government advice is that licensing conditions to control a public nuisance cannot be
imposed where the problem is caused beyond the vicinity of the premises (DCMS, June
2007: para 2.39). However, it might be argued that where a disturbance amounts to a public
nuisance, although manifested beyond the vicinity of the regulated premises, it would not
have occurred but for the licensable activity taking place on such premises. There may be
some grounds for concluding, on the basis of the line of authority from Betterton’s Case,41
that the scope of liability in public nuisance is wider than the guidance allows.

Advice from government has been supplied munificently. The Department of Culture, Media
& Sport (DCMS) has tried to smooth the implementation of the Licensing Act 2003 and
reconcile it with the object of the Anti-social Behaviour Act 2003. Buried within its copious
guidance for local authorities is the following advice:
It is important to remember that the prevention of public nuisance could …include
low-level nuisance perhaps affecting a few people living locally as well as major
disturbance affecting the whole community (my emphasis) (DCMS, June 2007: para
2.33).
The authors of the guidance fail to show how their advice might be reconciled with A-G v
PYA Quarries,42 and it would appear to be advice given without consideration of any kind of
case law authority. It probably reflects policy objectives based on a very loose interpretation
of the scope of the Anti-social Behaviour Act 2003, or, perhaps, a manful and retrospective
attempt by the government to try and make the Licensing Act 2003 more effective than
Parliament had originally intended.43

Concluding comments
When giving judgment in Hunter v Canary Wharf, Lord Cooke commented on the principle
of ‘give and take’ - central to a proprietorial formulation of nuisance but vague – that:
The principle may not always conduce to tidiness, but tidiness has not had a high
priority in the history of the common law. What has made the law of nuisance a

41
(1680) Holt 538.
42
[1957] 2 QB 169.
43
The DCMS guidance is inconsistent with that provided by DEFRA, which states, correctly, in its Guidance to Local
Authorities The Noise Act 1996 as amended by the Anti-social Behaviour Act 2003 and the Clean Neighbourhoods and
Environment Act 2005: Guidance to Local Authorities in England (Defra: March 2008), at [143]: ‘Although “public
nuisance” is not defined in statute for the purposes of the Licensing Act 2003 or the Anti-social Behaviour Act 2003, it is
generally taken by the courts to be a nuisance which affects the public at large where it would not be reasonable to expect an
individual to take proceedings to resolve the matter…’
 18

potent instrument of justice throughout the common law world has been largely its
flexibility and versatility.44
Tension between a property-based and a rights-based conceptualisation of public nuisance
could be interpreted, therefore, as a feature of the common law in which logic is subordinate
to justice.

Perhaps this tension cannot be resolved without recourse to a ‘shapely code’ (Radzinowicz,
1985, para. 6). Some may conclude that the guidance provided to local authorities by the
DCMS in June 2007 on public nuisance constitutes the kind of error that Professor Newark
warned us about long ago in The Boundaries of Nuisance (Newark, 1949). The guidance
appears to suggest that noise amounting to no more that a private nuisance suffered by a few
residents would be enough to trigger a licensing review or result in the closure of premises, or
even that a low level interference not amounting to a nuisance in law could do so. This is
misleading and remains a source of confusion for enforcers, licensees and the public
generally. It could be that the position taken on public nuisance is a simple mistake
committed by government advisers having little expertise in nuisance law. The problem with
this interpretation is that it implies that the large number of individual civil servants consulted
beforehand about the precise wording to be used in the guidance would each have had to have
made the same error. A policy to make the guidance appear more relevant and enforceable
that it really could be in controlling the British binge-drinking culture is perhaps a more
plausible explanation.

But tension in the law of public nuisance would seem to have played a part and subsequent
case law has not helped to resolve the difficulties. In a hastily constituted application for
leave for judicial review of a licensing case concerning the fortunes of The Endurance, a
public house in Soho, Burton J did not find the guidance defective though invited to do so by
counsel for the company, who had argued the point fully and effectively. Somewhat lamely,
his Lordship decided that the guidance ‘was not unlawful’.45 In this case the noise generated
by the licensed premises had been found by the district judge at first instance to be a public
nuisance, having been ‘higher on the scale than something that fell within the category of
simply a private nuisance’. Burton J accepted this finding, though without questioning what

44
Hunter v Canary Wharf [1997] AC 655, 711.
45
R (on the application of Hope and Glory Public House Ltd) v City of Westminster Magistrates’ Court [2009] EWHC 1996
(Admin) at [64].
 19

sort of scale the learned district judge had had in mind, and so his comments as regards the
lawfulness of the guidance were obiter.46 Seen in another light, his Lordship may have been
doing what all good common law judges do: he strained the law to suit the justice of the case.
Let us hope that Mr Justice Burton does not follow Mr Justice Fitzherbert in being reviled for
straying beyond the boundaries of nuisance for the next 450 years or so.47

References:
Archbold (2010) Criminal Pleading, Evidence and Practice. London: Sweet & Maxwell
DCMS (June 2007) Guidance issued under section 182 of the Licensing Act 2003. London:
HM Government, Department of Culture, Media & Sport
DEFRA (March 2008) The Noise Act 1996 as amended by the Anti-social Behaviour Act
2003 and the Clean Neighbourhoods and Environment Act 2005: Guidance to Local
Authorities in England . London: HM Government, Department for Environment, Food &
Rural Affairs
Himmelfarb G., (1984) The Idea of Poverty. London: Faber & Faber
Kidner R., (1998) ‘Nuisance and rights of property’, Conveyancer & Property Lawyer, 267
Newark F.H., (1949) ‘The Boundaries of Nuisance’, 65 Law Quarterly Review, 480
Parpworth N., (2008) ‘Public nuisance in the environmental context’, Journal of Planning &
Environment Law, 1526
Radzinowicz, Sir Leon., (1985). The Law Commission: Codification of the Criminal Law, a
Report to the Law Commission, 143 Law Commission.
Spencer J. R., (1989) ‘Public Nuisance – A Critical Examination’, 48 Criminal Law Journal,
55
Wightman J., (1998) ‘Nuisance – the Environmental Tort? Hunter v Canary Wharf in the
House of Lords’, 61 Modern Law Review, 870

46
Ibid.
47
Y.B. 27 Hen. 8, Mich. pl. 10.
 20

Surveying the sustainable and environmental legal and market challenges for real estate

Colleen Theron

LexisNexis

[email protected]

Introduction

It has been estimated that the built environment in its widest sense (including construction) is responsible
overall for about 40% of carbon dioxide emissions, as well as 40% of all energy used. Commercial
property is a major contributor to this.

Despite the recent negative publicity challenging the scientific evidence underpinning climate change, the
consensus seems to remain that climate change must be tackled and cutting carbon emissions is critical to
achieving this. As a result (and notwithstanding the global economic downturn and the depressed property
market), legislation and policy developments at global and national level has continued to crystallize
solutions for reducing greenhouse gas emissions (GHG), including the built environment. In the US,
states and local governments have embraced green real estate initiatives, ahead of federal legislation.
Since 2005 there has been an increase in approved green building polices from 13 to 31.

In the UK the drive towards a low carbon economy has led to a number of policy and legislative
initiatives to tackle the reduction of carbon in buildings, such as the low carbon transition plan and the
consultation on zero carbon for non domestic buildings. The agenda is also been driven by directives from
the European Union which member states are bound to implement. Owners and managers of existing
commercial property buildings are finding themselves bound by a raft of new environmental legislation,
such as energy efficiency standards for buildings; a mandatory carbon emission reduction scheme (where
the organization produces electricity above a threshold of 6000kM per half hour) and revised building
regulations.1 Legislative and market pressure is also being put on the property industry to design,
construct, use and demolish building in a way that both mitigates and adapts to climate change. As the
impact of Climate change and resource pressures deepen, the effect on asset value will increase. The
creation of the coalition government in the UK has not deterred from the theme of a ‘green economy’,
including incentivisation for 'green growth' and 'decarbonisation' of the economy.2
This paper examines how environmental and sustainability issues are challenging ‘business as usual’
models in the real estate sector, outlining key mandatory and voluntary requirements for ‘green
buildings’.

Is sustainability ‘green’ ?

1
Available at:http://www.lexisnexis.com/Community/environmental-
climatechangelaw/landing/EmergingIssues.aspx
2
Available at:http://www.guardian.co.uk/environment/2010/may/12/coalition-environment-policy
 21

There is widespread and considerable interest in the topic of sustainability and sustainable construction.
However, there is also a good deal of confusion over the terms used. The term ‘sustainable development’
is often confused with environmental protection, and many limit the scope of sustainability to
consideration only of environment issues. 3

The concept of ‘sustainable development’ is not always interpreted in the same way by different
countries. The standard definition is the one contained in Brundtland’s report, namely ‘Sustainable
development that meets the needs of the present without compromising the ability of future generations to
meet their needs’4

‘Sustainability’ as a legal term has its origins in the ‘soft law’ of international conventions. This means
that it is too vague for breach to give rise to legal sanction. 5In the UK the statutory guidance issued to the
Environment Agency to supplement the Environment Act 1995 adopts the ‘Brundtland’ definition of
sustainable development.

The concept of ‘sustainability ‘is also often used interchangeably with the concept of Corporate Social
Responsibility (CSR) at corporate levels, but clarity on the differences is important for the way business
behaves. The European Union started to develop the concept of CSR in 2000/2001 in line with the
strategy adopted in Lisbon in 2000. The so called Lisbon objective called on the EU to become the
foremost economy in the world, focusing on sustainable economic growth and greater social cohesion by
2010.6 The EU’s sustainability strategy is also tied up with the Lisbon objective. From a business
perspective CSR came first and was primarily concerned with social matters. Sustainable development
emerged from the environmental protection debate. The Brundtland Commission concluded that social,
ecological and economic concerns must be given equal weight. CSR tends to be restricted to ecological
and social challenges and economic contributions to sustainability are not considered in detail. Whilst the
concepts overlap they are applied differently.

Sustainability, in the context of the business world, is used to refer to how environmental, social and
economic considerations are integrated into corporate strategy and capital markets for the long term.
Companies, historically, have separated financial issues from non-financial aspects of their business. This
started changing with the onset of increased pressure by stakeholders and society for more transparency
about governance and the impact that companies have on their surrounding environment. Ceres7 states
that the ‘license to operate’ can no longer be taken for granted by business. Companies, they suggest,
cannot consider sustainability challenges in isolation. In a recent Pricewaterhouse Coopers survey of 140
chief executives of US-based multilateral companies found that 85% of them believe that sustainable
development will be even more important to their business model in five years time than it is today. This
should extend to real estate investors and major developers.

3
Schleich H. And Lindholm A and Flakenback H. ( ) Environmental sustainability-drivers for the real estate investor’
4
Brundtland report (1987): http://www.un-documents.net/wced-ocf.htm
5
Keay, A.(1990),”Insolvency and Environmental Principles: A case Study in Conflict of Public Interests”
Environmental Law Review , Vol 3,No. 2
6
Future E.V and Institute for Ecological Economy Research GmbH (IOW) “Significance of the CSR debate for
sustainability and the requirements for companies”. 2004
7
Ceres is a national coalition of investors, environmental groups and other public interested organisations working
with companies to address sustainability challenges such as water scarcity and climate change. See:
www.ceres.org
 22

In the real estate sector, environmentally sustainable buildings are also referred to as ‘green buildings’.
Although, ‘green buildings’ have been used as a synonym for sustainability, this has often led to
sustainability being understood from an environmental perspective, neglecting the social and economic
perspectives. Despite the lack of a universally agreed definition of ‘sustainable buildings’, as the market
evolves and as new metrics and regulation are developed and implemented, consensus may emerge. The
practice of ‘green building’ is seen as the practice of creating structures and using processes that are
environmentally responsible and resource efficient throughout a building’s life cycle from siting to
design, construction, operation, maintenance, renovation and deconstruction. There is an assumption that
sustainable property will perform beyond the baseline of compliance and that it will offer considerable
benefits over and above conventional or merely compliant property.

What are the drivers?

A major driver for sustainability in real estate sector has been the growth in environmental legislation to
regulate the impact a property has on the environment through its whole life cycle. The overall increase in
legislation at both international, EU and domestic level does not show signs of any abatement, which will
continue to drive change. It is believed that the environmental and social aspects of sustainability will also
impact on property performance.

However, there are relatively few studies that have been undertaken about the business case to promote
sustainable development in the real estate sector. A RICS report (2010) published by the RICS
Foundation, in conjunction with Kingston University, London issued a report entitled “Is sustainability
reflected in commercial property process: an analysis of the evidence base’8. The report assessed the
evidence that exists on whether sustainability is reflected in commercial property prices. It found that
although the last ten years has shown an increase in reports on the business case for sustainable property,
very few large scale empirical studies have been undertaken. The greatest numbers of reports are US
based. The conclusions in the report emphasize the need for a clear definition on sustainable buildings
and what sustainability features really matter to tenants and building occupiers. The provision of
meaningful benchmarks will be able to support values in the preparation of valuations. To complement
this report, the RICS believes that further research is needed in relation to the financial performance of
sustainable buildings.

A joint study undertaken by the University of Regensburg and Helsinki University of Technology9
(Schleich report) identifying the drivers of sustainability in real estate practice, confirms the limited
availability of research in this area. Whilst some mention is made of the corporate drivers, the study
focused on three main property led drivers, namely increased rental level, decreased property costs and
decreased risks.

Increased Rental Level

8
Available at: http://www.rics.org/site/download_feed.aspx?fileID=5752&fileExtension=PDF
9
Schleich H. And Lindholm A and Flakenback H. (2009 ) Environmental sustainability-drivers for the real estate
investor’, eRes 2009_133
9
Brundtland report (1987): http://www.un-documents.net/wced-ocf.htm
 23

Those studies that have analyzed the comparative data of energy costs of green buildings to other
conventional buildings show reductions of energy use and savings between 6 and 30%.10

Lower Operating Costs

The Schleich report highlights that surveys conducted by Jones Lang LaSalle (2008) amongst corporate
occupants globally, and a survey undertaken by Cushman and Wakefield ( 2007, 2008) show signs of a
willingness to pay for rental premiums for sustainable space, the range of the size of the premium varying
from 2-12 percent.11

It is believed that a tenant’s willingness to pay premiums for sustainable real estate is as a result of
increased occupant productivity, potential image benefits and lower running costs.

Decreased risks

Lower operating costs are considered to be an issue promoting sustainable buildings. Empirical evidence
indicates that operating costs of certified buildings are lower compared to non-certified buildings. A study
in 2008 by Miller indicated lower operating costs on a sample of 243 certified and 2,000 non-certified
buildings.12

The decreased risk associated with sustainable buildings arises from the perception of lower vacancy
rates, however this is not conclusive.

Reputation

There is a corporate driver for improving reputation, by publishing CSR reports and Carbon Disclosure
reports. The drive towards mandatory reporting across the globe will no doubt see an increase in more
information being available about property companies. Also, as more companies embrace ‘sustainability’
into the way they develop their strategies and reporting, this should lead to more transparent information.
Theoretically, such positioning by corporations should translate through market mechanisms into
increased demand for sustainable property. Although the principles of sustainability may be embedded in
the policies of some property owners and occupiers, translating them into property decisions has been
difficult.

External factors

Another external driver is the issue of how much weight asset managers of institutional investors are
giving to sustainability and climate related issues. A study by Jones Lang LaSalle in 2008 sought to
make the claim that by investing in accredited or sustainable stock either does or may yield higher returns
and other benefits.

Are real estate investors interested in energy efficiency?

10
Ibid.
11
Ibid.
12
ibid
 24

In a 2010 report “Energy Efficiency in Real Estate Portfolios”13 published by Ceres14, and Mercer15,
outlined the business case for investing in energy efficiency on the basis that it enhances value in real
estate portfolios.

The report aims to provide direct and indirect real estate investors with the background information,
academic and industry research, case studies, key steps and best practices for integrating energy
efficiency across their portfolios.

The report also states that fiduciaries responsible for these portfolios may assume unnecessary risk and
overlook substantial opportunities to enhance returns if they fail to factor energy efficiency into their real
estate investment decisions. A further Ceres report on Asset managers practices16highlights specific best
practices that asset managers are purporting to use to incorporate climate risks into their due diligence,
corporate governance and portfolio valuation. However, the report states that there are very few asset
managers actually doing this.

The issues raised in these reports highlight that climate risks and opportunities are rising on the
investment agenda as environmental, social and economic implications of climate change are beginning to
crystallize.

Legal standards for sustainability

The life cycle of a commercial property is affected by both legal and voluntary standards for
sustainability. Pressure is mounting for all parties involved in real estate to do more to achieve
sustainability throughout the lifecycle of a building, from design to demolition.

Building design

Legal standards

The Building Regulations 2000, as amended (BR2000) set out a minimum sustainability standards
relating to, for example energy and water efficiency. The local authority may refuse to issue a completion
certificate if the new buildings fail to meet the BR 2000 standards.

The impact of the Flood and Water Management Act 2010 will also require developments to be designed
to prevent surface water run-off.

The main voluntary tool for assessing the sustainability of new commercial buildings is the British
Research Establishment Environmental Assessment Method (BREEAM). BREEAM awards new
commercial buildings a ‘rating’ measuring their level of sustainability over and above the minimum
requirements of the BR 2000. It does not, however address existing buildings.

13
www.ceres.org/Document.Doc?id=519
14
Ibid. Ceres is a national coalition of investors, environmental groups and other interest organisations working
with companies to address sustainability challenges such as global climate change.
15
Mercer is a global consultancy service
16
Ceres (January 2010) ‘Investors Analyze Climate Risks and Opportunities: A survey of Asset Managers’ Practices’
 25

The Green Rating 17is a new alternative to BREEAM . It is an assessment of the energy efficiency of a
building that looks at both the building materials and the waste generated by the building. It is an
international standard intended to allow companies with an international property portfolio to accurately
measure the efficiency of their sites.

Other sustainability assessment tools are LEED (Leadership in Energy and Environmental Design)
developed in the US and Canada; and Green Star and NABERS (National Australian Built Environmental
Rating System) developed in Australia.

The Planning system

Local Authorities

The UK planning system increasingly requires the promotion of sustainable development in planning
applications.

The Planning Act 2004 requires Local Planning authorities to exercise their planning powers with the
objective of contributing to the achievement of sustainable development, taking into account Government
Planning Policy Statements (PPS)(such as PPS 1 and 22) promoting on -site renewable or low carbon
energy generation) when drafting development plans.

The result is that developers are increasingly required to ‘front load’ their planning applications with
details at the outline planning stage of sustainability considerations. Developers also have to include
sustainability standards for new developments as a planning obligation under Section 106 Agreements.

Environmental Impact Assessment

Under the Town and Country Planning (EIA) (England and Wales) Regulations 1999, planning
applications for major developments are required to be accompanied by an environmental statement
detailing the likely impacts on the environment, and measures to be taken to mitigate those impacts.

Construction of New Buildings

JCT Contracts

The standard form of contract18 used by the construction industry (drafted by the Joint Contracts Tribunal)
has recently been amended to include sustainability clauses. The sustainability clauses and guidance do
not impose a rigid set of targets upon parties, but instead create a framework in which a contract can
include sustainability criteria.

Waste management

Waste is of increasing environmental and economic significance as the increasing regulatory pressure and
rising cost of landfill taxes is making waste management a significant cost issue for many organizations.

17
This assessment was launched in June 2009 by AXA Real Estate Investment and ING Real Estate amongst others.
18
Availableat:http://www.jctltd.co.uk/assets/Building%20a%20sustainable%20future%20together%202009%20We
b.pdf
 26

The Site Waste Management Regulations 2008, require developers of property worth over £300, 000 to
prepare a Site Waste Management Plan (SWMP). The SWMP will record details of the construction
project, estimate the types and quantities of waste that will be produced and confirm the actual waste
types generated and how they have been managed.

Buildings also have to be constructed by using the correct materials. Both these requirements will place
additional burdens on the principal contractors to ensure that any sub- contracts include the necessary
provisions to ensure that sustainability and environmental issues are covered.

Land Remediation

The RICS highlights that many sustainable building rating systems take into account land use. Valuers
should take land use into account where buildings are constructed on Brownfield land and watercourse
setbacks. Where land has been constructed on previously developed land, issues of potential
contamination must be considered as this may bear a risk of outlay in terms of cost and /or insurance
against potential problems in the future.

It is not only valuers that should consider the potential risk of contamination. Developers intending to
build property will need to carry out an environmental assessment of the site, and remove all
environmental and health risks before construction can begin.

In the UK the Sustainable Remediation Forum UK (SuRF) has published a Framework for assessing the
Sustainable Remediation of Soil and Groundwater. 19 The document presents a framework for assessing
the sustainable remediation of soil and groundwater remediation and incorporating the criteria of
sustainable development into contaminated land management strategies. Its aim is to realize a number of
benefits, including contributing to sustainable development at a number of levels and to positively
demonstrate corporate and environmental responsibility.

Ownership and Occupation of a building

Energy Performance of Buildings

The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations
2007 require that the energy performance of completed building be assessed. All buildings that are
bought, sold, rented or leased need an Energy Performance Certificate (EPC). An EPC has to be provided
by the developer to the local authority building control, failing which the issuing of a certificate of
practical completion may not be possible.

The sale or rental of a property

Valuation

When buying property, the issue is what price is or should be paid (either as a capital value or the rental
value). In commercial property terms, the question that arises is whether these should reflect sustainability
credentials.

19
Available at http://www.claire.co.uk/index.php?option=com_content&task=view&id=182&Itemid=78
 27

The Royal Institute for Chartered Surveyors (RICS) is the professional body for valuers who are the main
agents involved in assessing the value of buildings. The RICS is responsible for laying down guidelines
for valuing assets for purposes, such as secured lending or financial reporting. Valuers, should, therefore,
have access to reliable and timely information, including information on sustainability criteria if these are
going to affect the valuation process. The RICS acknowledges that there are fundamental aspects of
sustainability that affect property and potentially its value.

In September 2009, the RICS issued an Information Paper on Sustainability and Commercial Property
Valuation20. This paper was drafted as a step towards embedding sustainability as a core consideration in
the valuation process. The paper outlines ways in which sustainability can be defined; how a building's
green credentials may be assessed and how such characteristics might be reflected within a valuation -
whether quantitatively or qualitatively. The Red Book was published in January 2010 with more
substantial guidance on these issues.

The RICS guidance note on Contamination, the environment and sustainability embodies ‘best practice’
and reminds members that whilst they are not required to follow the advice and recommendations, when
an allegation of professional negligence is made against a surveyor, the court is likely to take account of
the contents of any relevant guidance notes published by the RICS, in deciding whether or not the
surveyor has acted with reasonable competence.21

Valuation is key to investment and the provision of information is critical to ensuring that sustainability is
built into investment decisions.

Energy Performance Certificates

The sellers and landlords of UK Building are required by law to provide an EPC to potential buyers and
tenants, setting out information on the building’s energy efficiency. This is intended to allow potential
buyers to make informed decisions on property investment based on a property’s green credentials.

Green leases

The adoption of lease arrangements that either encourage or require landlords and tenants to manage the
asset in accordance with sustainability principles (so called green leases) is growing. The RICS
recommends in its Valuation Information Paper No 1322 that the presence of a green lease is to be
evaluated as it could mark a risk reduction factor within the appraisal or conversely, it could result in a
lower rental bid if it contains onerous terms.

In the UK the Better Buildings Partnership (BPF)23 provides a green lease toolkit that aims to improve
sustainability and reduce the environmental footprint of existing buildings. #

Carbon Reduction Commitment Energy Efficiency Scheme

20
See http://www.rics.org/site/download_feed.aspx?fileID=5751&fileExtension=PDF
21
RICS Practice Standards, UK; page 01.
22
Available through the RICS membership
23
http://www.bitc.org.uk/resources/publications/green_lease_toolkit.html
 28

The picture for commercial property is somewhat different from residential with the UK Government
using the Carbon Reduction Commitment (CRC) Energy Efficiency Scheme to try and improve energy
efficiency in this sector.

The CRC is a mandatory emissions trading scheme for the UK, designed to reduce CO2 emissions of UK
properties in both the commercial and public sector. The CRC commenced in April 2010 and will run for
three set time periods (known as phases).The first phase will run for three years and the subsequent
phases will each last for seven years. Poor compliance can potentially result in increased costs, bad
publicity and criminal prosecution.

The CRC will have a significant impact on landlords, tenants and the investment market and the RICS
recognizes that its impact has to be fully appraised and reference to the CRC will be included in
subsequent editions of their guidance notes.

Alteration and Retrofit

The alteration or extension of a commercial building in England and Wales is governed by the Building
Regulations 2000. Any building work will need to meet minimum sustainability standards covering
energy efficiency and water (amongst others). If any alterations or retrofits are being carried out, the
developers will have to consider whether planning permission is required.

Building materials such as cladding, ceiling and floor panels and carpets and walling are important
sustainability considerations. The life cycle value of materials should be considered as part of the rental
value of a building.

Demolition

Planning permission is required prior to demolishing a building. Developers will also have to comply
with the Site Waste Management Regulations 2008 and BR2000 throughout the demolition process.

Challenges for businesses

The real estate sector can no longer afford to ignore the movement to establish a low- carbon sustainable
global economy. Corporate bottom lines will be impacted by emerging ESG issues, particularly where
disclosure must now be included in financial filings. Impacts will flow from the physical risks arising
from climate change (whether or not anthropogenic) or the physical and economic risks arising from the
scarcity of energy and water resources, or from legal and regulatory burdens which may be imposed by
reference to those risks. The overall governance and disclosure by companies relating to ESG issues must
be improved. More details are required on actions and policies or assessing and managing environmental
risks.

Companies within the real estate sector should also be aware of the growing trend of the global business
and human rights agenda. Companies are also going to have to track their policies and operations on the
local communities within which they operate.24

24
http://www.euractiv.com/en/print/socialeurope/csr-corporate-social-responsibility/article-153515
 29

Companies can also not ignore the fact that new social technologies, media and networks will transform
the reporting landscape. The Web 2.0 revolution is leveling the playing field by giving stakeholders the
opportunity to initiate and drive conversations with (or around) companies. 25

The risks of inaction by property investors, failing to embrace energy efficiency, are indentified in the
Ceres report as:

• Expected rises in energy costs, including the cost of waste consumption

• Existing and new more stringent, legislation
• Competitive and financial risks of not responding to market demand

Those companies embracing the sustainable agenda are likely to see decreased operating costs of certified
buildings and combined with increased rental levels, the cash flows of the sustainable buildings should be
more attractive.

Those investors and businesses pursuing energy efficiency initiatives should position them competitively
for impending national climate and energy legislation that will likely make energy consumption and waste
more expensive.

Global real estate businesses, with an international property portfolio, are faced with the challenge that
there are inconsistencies between currently available metrics. For example, the EPBD implementation
mechanism varies across member states, hence buildings cannot be compared for energy efficiency across
Europe in a consistent manner.

The impact of climate change on the ability to continue to use a building efficiently in high temperatures
or withstanding storms will be important. Many properties could become unsuitable in extreme heat
without appropriate climate control which will impact on tenants. Such buildings may be vulnerable to
obsolescence and may need retrofitting.

For those architects and developers looking to design and build new developments, there is going to be an
increasing need to be aware of the current and future legal requirements and voluntary standards which
may affect the design of the development. Developers will also have to liaise with the local planning
authority to understand the planning policy requirements and budget for increased costs arising from
compliance with sustainability standards.

Commercial organizations that may qualify under the CRC scheme ( if they have not already done so)
should consider how they can resource and implement new systems to capture data and report it , in order
to be compliant and also benefit from the league table ranking that will predominately be based on the
first two CRC compliance years.

Conclusion

The challenge for the property market will be the creation and adoption of standardized approaches to
sustainability, from the valuation process to the design and construction of buildings. The occupation of

25
The GRI Learning Series (2010) ‘ The Transparent Economy’ pg 15
 30

buildings will also be affected by the legislative frameworks and market pressures. Creation of a universal
definition of what constitutes a sustainable building and simple benchmarks will be vital.
 31

UK Climate Change Law: securing a low carbon economy

by recourse to experts and government obligations?

Mark Stallworthy

School of Law

Swansea University, Swansea SA2 8PP

United Kingdom

Email: [email protected]

Abstract:
Appropriate policy responses to threats from climate change require consideration of
radical transformations in socio-economic arrangements, with substantial
consequences for both our urban and rural environments. Such tasks are more likely
to be addressed (whether adequately or no) in a sustained fashion at national and
regional levels of jurisdiction. This paper seeks to address a key legal element
underpinning the UK’s national response to climate change. It primary focus is upon
the UK Parliament’s legislative intervention through the Climate Change Act 2008.
Following a brief overview of statutory scheme and objectives, the paper offers both
theoretical and instrumental perspectives concerning those duty bearing provisions
that lie at its core as a reforming measure, and the role of scientific expertise in the
process. The implications of the approaches adopted will be explored, with especially
the particular policy aspirations for a low carbon economy in mind.

Keywords:
Climate Change, Legislation, Governmental Accountability

1 Introduction
The multiple implications for human society of climate change can be described as
paradigmatic in two essential ways. On the one hand, they raise problems of multi-
level governance relating to legal mechanisms, jurisdictions and accountabilities. And
on the other, challenges arise out of the polycentric nature of ensuing impacts, upon
both individual and communal lifestyle expectations. In both respects, fundamental
sustainability questions arise.

Impacts upon both rural and built environments are potentially vast, and are likely
directly and indirectly to affect many of the ways in which we order our forms of
social organisation, our methods of production, and our patterns of consumption.

Profound questions concerning legitimacy and accountability also arise. The response
thus far within international fora, including through the mechanisms set up through
the 1992 UN Framework Convention on Climate Change – and the subsequent Kyoto
 32

Protocol process – can be said at best to have plateaued. Thus the lack of multilateral,
and extremely limited bilateral, consensus achieved at the Copenhagen Climate
Conference (December 2009) has offered little prospect as yet of a robust successor to
the Kyoto arrangements being in place from 2013.

In this light, the paper discusses the essential framing process by which the UK seeks
to deliver on formal targets for the reduction of greenhouse (and in particular, carbon)
emissions up to 2050, and to secure key aspects of adaptation to unavoidable impacts
of climate change. The Climate Change Act 2008 is central to this project and it has
placed key statutory duties, especially for the securing of phased emissions
reductions, upon central government. It is argued here that such legal strategy, which
suggests a departure from standard constitutional practice in the UK, requires a more
rigorous consideration of its implications than has hitherto been the case.

The rationale for this significant legislative incursion, and the likely implications, are
the key issues addressed in the paper. The conclusion will seek to address the
prospects for such a novel approach making a substantive contribution to the delivery
of effective UK policy responses to climate change.

2 A Duty Based Legislative Structure for a Low Carbon

Economy
2.1 Science and Climate Change
Central to our discussions of climate change, in whatever discipline, is the
considerable scientific consensus around the idea that temperature rises, that have
continued since the onset of the industrial era, are predominantly accounted for by
increases in greenhouse gas emissions (USNOAA, 2010), and that the predominant
cause is attributable to human activities.

Despite such broad level of scientific consensus, uncertainties abound, reflecting

multiple complexities in the behaviours of natural systems under stress. Yet in the
face of this, climate science has increasingly been called upon to offer realistic
forecasting of future events and impacts. For this task scientists are equipped with a
decidedly mixed tool-kit. This ranges from the limited availability of modern-era
observational records, to continuing empirical studies (more especially, in the fields
of glaciology and palaeontology), the integrity of which (even where supported by
sophisticated computer models) can ultimately depend upon the exercise of scientific
judgment, levels of broad consensus, and the processes of peer review. In effect,
climate scientists are routinely being called upon to quantify the unquantifiable.

Nevertheless, for all the uncertainties, over 98% of scientists endorse the broad
consensus of view that man made emissions are responsible (Anderegg et al., 2010),
both for the preponderance of warming since the onset of the industrial revolution and
for its continuation today (IPCC, 2007).

2.2 Representing Problems through the Carbon Footprint

Policy discussions have shifted – at varying speeds – to questions of mitigation and
adaptation – the former being broadly concerned with limiting emissions, so as to
 33

slow (or even to reverse) increases in global temperatures, and the latter with securing
changes in the ordering of our affairs so as to cope with the impacts of climate change
that prove to be unavoidable. In particular, the impacts from energy production and
energy use – across the whole range of our economic and social activities – are central
to the possibilities for reducing carbon emissions.

The objectives for mitigating the effects of climate change can usefully be framed
within the notion of a shift to what is termed a ‘low carbon economy’. It can be seen
from the figure below that the idea of a ‘carbon footprint’ offers a pervasive
representation of carbon impacts (both direct and indirect) from the range of socio-
economic activities in which we collectively engage as legal persons, including
natural and non-natural persons and other entities.

Figure 1. ‘What is a Carbon Footprint?’

Source: http://www.carbonfootprint.com/carbonfootprint.html

And yet, for all the growing awareness of sustainability issues, and the range of
alternatives offered by environmental economists (Stern, 2008), traditional
conceptions of growth, by public and private exploitation of resources, and related
approaches to maximising production and consumption, continue to dominate modern
economies. Hard questions arise as to how a growth ethic so conceived can be made
subject to a reforming agenda, as by reconfiguring through schemes such as for
‘green’ investment, the development of green technologies, and otherwise. From a
UK perspective, green product choices are still largely encouraged by at best
voluntary guidance schemes. There are persisting low levels of incentive or subsidy
toward the advancement of alternative energy technologies, or even towards simpler
measures such as for ‘retrofitting’ older buildings for energy efficiency.

Confused signals can further be seen in the relationship between public sector
investment and the macroeconomy: as in the lower relative costs of private as
opposed to public forms of transport, and the development of highways and airport
infrastructure on a ‘predict (demand) and provide (infrastructure)’ basis. Despite the
apparent willingness of the (1997-2010) UK government to progress more explicit
carbon pricing of such activities as infrastructure investment, it remained fully
committed to such projects as the proposed third runway at London’s Heathrow
Airport (a stance that appears likely to be reversed by the incoming administration).
 34

2.3 Placing Duties on Central Government: the 2008 Act

From a legal perspective, given expectations of impacts from climate change, the
development of suitable responses over the coming decades will require extensively
reformed institutional and decision making structures and processes.

In its first attempt to create an overarching statutory framework under which it is

planned further to develop national climate change policy, the UK Parliament in
December 2008 passed the Climate Change Act. Importantly, the legislation
articulated in mandatory terms the objective of securing realignment towards a low
carbon economy. Moreover, it provided a mechanism for further development of
mitigation and adaptation policy responses. That said, the Act was notably thin on
policy specifics, with a few ancillary exceptions (most notable of which related to the
adoption of a ‘renewable transport fuel obligation’, with minimum fuel content levels
from biofuel sources).1

The Act offers a paradigm piece of enabling legislation. Aside from the commitment
(again through enabling measures) to extending the reach of emissions trading
regimes within the wider domestic economy, the key provisions related to the setting
of national greenhouse gas emission reduction objectives, the meeting of which was
made mandatory. This central feature was supported by three further mechanisms:
namely, a carbon emissions budgetary process; procedures for strategy setting; and
arrangements for reporting on performance.

The most significant element in the legislation, therefore, was as a vehicle for
imposing statutory duties on central government relating to defined policy outcomes.
The key applications of this novel form of legislative wording can be seen in two
particular instances.

In the first, section 1(1) states as follows (emphasis added):

‘It is the duty of the Secretary of State to ensure that the net UK carbon
account for the year 2050 is at least 80% lower than the 1990 baseline’.

Then in the second, under section 4(1), it is provided that (emphasis again added):
‘It is the duty of the Secretary of State
(a) to set for each succeeding period of five years beginning with the
period 2008-2012 (‘budgetary periods’) an amount for the net UK
carbon account (the ‘carbon budget’), and
(b) to ensure that the net UK carbon account for a budgetary period
does not exceed the carbon budget’.

2.4 Traditional and Novel Statutory Approaches Compared

The mechanism adopted accordingly poses potentially significant instrumental and
constitutional questions. One explanation for its emergence could be that the
application of such duties is a reflection of modern UK experience under EU law, in
the field of the environment and otherwise. This extends to court rulings, not only in
the European Court of Justice, but also (especially in light of the doctrine of direct

1
Climate Change Act 2008, section 78 (and schedule 7); amending Energy Act 2004, Part 2, chapter 5, and the
Renewable Transport Fuels Order 2007.
 35

effect) in domestic courts, whereby bodies representing the state can be found in
breach of obligations arising under EU law. Nevertheless, in constitutional terms,
such analogy is imperfect, for it is potentially misleading to assume equivalence
between obligations accepted as applying to the UK by virtue of the European
Communities Act 1972,2 and a purely domestic provision such as the Climate Change
Act.

Therefore, whilst the legislature appears to have brought the logic of formal
governmental target setting to a logical conclusion, this required statutory
formulations that offer, for UK lawyers certainly, a radical departure from traditional
approaches. The UK’s public law system can broadly be described as one founded on
notions of discretionary power, and mostly marked by a reluctance to create legal
shackles on the central state. The approach can be said to reflect ‘the dominant role of
central government, and the historical preference in Britain for systems of political
accountability over law-based systems of public administration’, which arguably
bring about ‘a trade-off, in which political accountability triumphs over legal
transparency’ (Grant, 2000).

A modern illustration of the traditional approach, through provisions empowering,

rather than placing duties upon, central government, can be seen in the Civil
Contingencies Act 2004. This legislation provided for a structured regime applied to
aspects of protection, planning, and co-ordination of responses, in the event of civil
emergencies. Section 2(1) placed substantial duties on so-called ‘Category 1
responders’ (particularly local authorities and the emergency services) for the
prevention and mitigation of risks. At the time of the Bill’s passage through
Parliament, a question arose as to why, despite a significant degree of central
government involvement in the various processes envisaged, in this respect no
equivalent duties would apply. The suggestion was decisively rejected by the
sponsoring department, officials for instance made it clear that ‘efforts are agreed by
Ministers who are accountable for them to Parliament and are therefore not
appropriate for the face of a legal instrument. This is standard practice’ (Cabinet
Office, 2003)

By way of contrast, aside from the Climate Change Act, the outgoing UK government
had in certain limited policy fields likewise experimented with a statutory adoption of
explicit duty based provisions, in support of quantitative policy target setting. Most
recently, for instance, statutory duties have been placed upon the Secretary of State,
not only to publish (and review) a child poverty strategy, but also to meet four UK
wide income poverty reduction targets (by a deadline date of 1 April 2020). The key
target appears to require that less than 10% of children must by then be living in ‘low
income households’ (that is, below 60% – adjusted on an ‘equivalised’ basis to take
account of larger households – of the median).3

The ground breaking measure for adopting this approach – one which is useful to
consider especially because its duty basis led to litigation – was the Warm Homes and
Energy Conservation Act. This provided for central governmental duties for the
alleviation of fuel poverty. The Secretary of State was required to produce a strategy
setting out ‘policies for ensuring, by means including the taking of measures to ensure
2
R v Secretary of State for Transport, ex parte Factortame (No.2) [1991] 1 AC 603
3
Child Poverty Act 2010, sections 1, 2.
 36

the efficient use of energy, that as far as reasonably practicable persons (in England
and Wales) do not live in fuel poverty’.4 The strategy had to specify a target date for
achieving the above objective, the minister being further required to take steps
considered necessary for its implementation,5 and to assess and report from time to
time on progress toward ‘achieving the objectives and meeting the target dates’ and in
consequence of the assessment to revise the strategy as considered to be appropriate.6
A Fuel Poverty Strategy was duly adopted (defining ‘fuel poverty’ as representing the
need for a household to spend more than 10% of income on fuel); committing the
Government ‘as far as reasonably practicable’ to ending fuel poverty for ‘vulnerable
households’ (those containing older people, families with children, and householders
either disabled or suffering from long term illness) by 2010, alongside a further target
for eradicating all fuel poverty generally, from 2016 (BERR, 2002).

Subsequent Government projections however came to accept that large numbers

would remain in fuel poverty by the identified deadline dates (BERR, 2007), in
consequence of which numbers in fuel poverty since the time of the Strategy appeared
broadly constant (at 1.7 million households in total), as a consequence of both income
trends and real increases in fuel prices during the intervening period (HC Treasury
Committee, 2008). This expected outcome prompted two leading national charities to
seek judicial review,7 on grounds of breach of statutory duty. Their application was
dismissed, on two main grounds. First, the statutory duty was held to amount to an
obligation to take such steps as the Secretary of State considered necessary to
implement the Strategy, in seeking or trying to end fuel poverty, which the court
regarded as amounting to ‘the language of “effort” to achieve targets, rather than
guarantee that targets will be reached’.8 Secondly, reflecting broader judicial concerns
at being called upon to engage with resourcing issues, the judge ruled that the terms of
the 2000 Act amounted to no more than importing a statutory duty to make efforts so
far as reasonably practicable toward the desired objectives. In other words, the
Secretary of State was held not to ‘assume a statutory duty whatever the cost’.9

Although McCombe J had described the case as presenting a difficult question of

statutory construction in light of the Act’s ‘juxtaposition of policy and legal duty’,10
he had little difficulty in conforming with traditional approaches according maximum
levels of administrative discretion in policy contexts related to resources, and in so
doing adopted conventional reasoning: on the basis that this was not to say ‘that
resources are dictating the content of the legal duty’.11 It has to be remembered that
the grounds of challenge in this case were limited to the question of breach of
statutory duty, and that therefore the decision was made absent a rationality challenge
on Wednesbury principles.12 Despite the difficulties inherent in that alternative ground
of challenge, it is arguable that by recourse to Wednesbury on such basis, the focus
would also have been subtly different, and that it would have been open to the
applicants to introduce questions of proportionality to perhaps greater effect. As it
4
Warm Homes and Energy Conservation Act 2000, section 2(1).
5
Ibid., section 2(2)(d), 2(5).
6
Ibid., section 2(6).
7
Friends of the Earth, Help the Aged v Secretary of State for Environment, Food and Rural Affairs [2008] EWHC
2518.
8
Ibid., paras. 17-19.
9
Ibid., para. 29.
10
Ibid., para. 14.
11
Ibid., para. 30.
12
Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223.
 37

was McCombe J held that it was not open to the court ‘to review the policy decisions
of the Defendants’.13

The above decision is instructive, in that it addresses a claim arising out of what has
been suggested above, namely a novel duty-target legislative technique. Nevertheless
inevitably it emerged out of its own specific policy and statutory context, and caution
should be exercised before seeking any principle of broader application. In particular,
the duties under the 2008 Act referred to above appear to be expressed in less
contingent terms. Indeed they arguably are strict in important respects, especially in
light of supplementary provisions that provide for formal publication of reasons for
budget overshoot,14 and of laying before the House of proposals and policies to
compensate in the succeeding budgetary period.15 That said, even the use of less
conditional terminology cannot be regarded as a guarantee of successful challenge, in
light of the difficulties that the courts would have in addressing issues that engage so
closely with complex matters of policy. Important questions therefore remain as to
how far, and on what realistic basis, the 2008 Act’s explicit duty based approach can
realistically be described as open to legal challenge, and some of these are considered
in the next section.

2.5 Duty Enforcement against the State

It might be expected that the adoption of the technique of imposing statutory duties of
the above nature on central government would be supported by an explicit statutory
enforcement regime. Yet government non-compliance is not made subject to any
explicit sanctioning arrangements. This suggests that – aside from the possibilities for
judicial review, the primary means of securing control over substantive breach will be
through ministerial responsibility to Parliament. In support of the effectiveness of
what is therefore essentially a form of political accountability, the Act contains
extensive provision for mandatory ministerial reporting on performance (to
Parliament),16 supported by the establishment of an overseeing reporting role, through
the creation of a new statutory advisory body, the Climate Change Committee.17

In consequence, however, save through these statutory processes of Parliamentary

scrutiny, it is not apparent on what basis non-compliance, especially in exceeding
carbon budgets, could lead to recognised legal consequences. This places a heavy
onus on securing accountability through the political process, in support of the
somewhat more tenuous protection afforded by the declaratory effectiveness of the
measure itself. Sponsoring ministers sought to justify the chosen approach as one
rooted in the traditions of the rule of law. Thus according to Lord Rooker, in ‘putting
these duties into law, we are giving them a constitutional significance which will
permeate down to every level of decision making. There is no other way of achieving
an equivalent effect without using the law. The duty should be looked at in this
broader constitutional sense, rather than just in terms of what happens in court’.18

13
ibid para 31.
14
Climate Change Act 2008, section 18(8).
15
Ibid., section 19(1).
16
Ibid., sections 16(1), 18(1).
17
Ibid., Part 2, sections 33-36.
18
HL Second Reading Debate, Hansard, Col. 1209, 27 November 2007.
 38

Whilst our administrative law may indeed only exceptionally be played out in the
courts, constitutional lawyers are ever suspicious at any signs of rhetorical excess
used in citing the rule of law. Thus in the context of this same proposal an academic
response warned that ‘governments should not pretend that they are establishing a
legally enforceable regime of carbon emission reductions, thereby falsely laying claim
to the credibility and legitimacy which the principle of legality, the cornerstone of the
rule of law, confers’.19 Indeed, in view of the lack of explicit enforcement strategy,
the enforceability of the Act’s statutory duties have been described as being based
upon what amounts to ‘best endeavours’,20 a term more commonly seen in
transactional contexts.

Otherwise, neither does the Act contain any what might be termed value added within
its procedural requirements. In other words it lacks the kind of compliance add-ons
that for instance appear under the Kyoto Protocol. There, in the event of a state
exceeding maximum allowable emissions, action plans must be submitted in the
following commitment period, containing such elements as statements of reasons for
non-compliance, proposed remedial measures, and timescales. Moreover, whilst non-
compliance persists, there will be a suspension of a state’s eligibility to partake in
carbon credit transfers.21 Further illustrations of iterative controls can be seen even
within the flexible regimes contained under EU framework environmental directives.
Thus the Water Framework Directive obliges Member States, upon failure to meet
adopted standards for conformity with ecological, quantitative and chemical water
objectives, to effect remediation measures.22 Likewise, under the Nitrates Directive,
national authorities must establish targeted action programmes once waters at risk of
nitrate pollution are identified and vulnerable zones designated.23 Returning to the
2008 Act, it is noteworthy that government rejected proposals for a mandatory regime
for remedial actions in the event of failure to meet net carbon account benchmarks.24

It can be said therefore that the Act being silent as to enforcement, any potential for
juridical interpretation of the application of the above duties can only be determined
by way of recourse to judicial review, in accord with ordinary principles. This was in
the mind of the Bill’s sponsors, if in a somewhat inchoate form. The head of the
government’s climate change support team at the responsible department, Defra,
expressed the cautious view that this being ‘a fairly new type of duty … the courts
may indeed mandate particular action, although we could not predict that’.25 The
minister of state went further, suggesting that whilst in most circumstances ‘courts do
no more than issue a declaration’ there would also be ‘the possibility of the court
making a more stringent order, such as ordering them (Government) to purchase
credits’.26 Yet such an order would arguably constitute an extensive judicial

19
HL/HC Joint Committee Report, Draft Climate Change Bill, HL 170-1, HC 542-1 (August 2007), evidence of
Austin, R., para. 113.
20
Ibid., evidence of Forsyth, C. F., paras. 108-9.
21
Kyoto Protocol to the UN Framework Convention on Climate Change, 37 ILM (1998), 22, Part XV, 2-5.
22
Directive 2000/60/EC establishing a Framework for Community Action in the Field of Water Policy, [2000] OJ
L 327/1.
23
Directive 91/676/EEC concerning the Protection of Waters against Pollution Caused by Nitrates from
Agricultural Sources [1991] OJ L375/1; also, Case C-221/03, Commission v Belgium [2005] ECR I-8307.
24
HC Environmental Audit Committee, Beyond Stern: from the Climate Change Programme Review to the Draft
Climate Change Bill, 2006-07, 7th Report, HC 460 (2007), para. 106; also, HL/HC Joint Committee, note 19
above, paras. 120, 123, 126.
25
Ibid., paras. 85-6.
26
Ibid., note 18, above.
 39

interference in the specifics of policy choice, and would be unlikely to commend itself
to the courts.

Climate change challenges bear the hallmarks of what have been described
generically as ‘wicked problems’. These can be seen as being marked especially by
high levels of uncertainty, pervasive levels of political contention, and widespread
entrenchment of conflicting stakeholder and other values (Rittell and Webber, 1973).
Aside from the engagement of related questions of governance, competence and
legitimacy (Rajamani, 1997), therefore, judicial restraint is likely to apply a fortiori
given the complexities of the policy fields surrounding climate change, with the
courts resisting invitations to adopt more intensive approaches to review.

Yet with a view to judicial enforcement, it can on the other hand be tentatively
suggested that there are aspects of the legislation that are likely to be more amenable
to challenge. For instance, in so far as the Act relies upon mandated activities, across
definite timelines and outcomes, possibilities for review can be envisaged. This is
particularly the case in relation to the requirements concerning the production and
publication of strategies;27 for reporting on progress;28 and for consultation (in
particular through the Climate Change Committee).29 In each of these respects, doubts
that can be said to apply to more closely policy related questions, especially
concerning outcomes, are less likely to apply.

3 Institutional Structures for a Low Carbon Economy

3.1 The Climate Change Committee
Climate change has been described as being ‘ultimately a crisis of governance’
(Hulme, 2009). This can be said to encapsulate a major problem that afflicts the
development and delivery of effective climate change law and policy. Problems in
producing appropriate decision making processes and outcomes are arguably reflected
further in a lack of engagement across all levels of society in the potential long term
effects of climate change. These are part also of wider questions concerning trust in
political institutions, often laid bare in contexts where ‘sound science’ (a politicians’
term) is under scrutiny. This has been graphically put as follows: ‘what is in question
is not only the limits of, or the gaps in, expert knowledge, but an inadequacy which
compromises the very idea of expertise’ (Giddens, 1990).

The Climate Change Act offers a further specific response, in the emergence of new
institutional arrangements for the purposes of adoption and driving through of
mitigation and adaptation objectives. The establishment of the Climate Change
Committee under the Act is a case in point. Although formally an advisory and
reporting body, this Committee may prove to be of pivotal influence in determining
whether, and how far, governments comply with the novel duty based regime
previously discussed: in particular for securing phased emissions reductions up to
2050, and for meeting the 5-yearly carbon budget limits.

27
Climate Change Act 2008, sections 13, 14, 19.
28
Ibid., sections 16, 18, 20.
29
Ibid., sections 7(1), 9(1), 12(3).
 40

For its part, as referred to previously, government is subject under the Act to a
number of related reporting obligations. Thus where a carbon budget is not been met
then its final statement for the budgetary period must explain why this is the case.30
Should the government seek to alter carbon budgets ex post, not only must the
Secretary of State first have determined that there have been significant changes
affecting the basis on which the previous decision was made,31 but if, following the
required consultation, any amendment departs from the Committee’s
recommendation, then the Secretary of State must publish a statement setting out
reasons.32

An illustration of the potential importance of the Committee can be seen from its most
recent progress report, produced in accordance with the requirements of section 36(1)
of the 2008 Act. The Committee concluded that the implementation of policy
measures accounted for only ‘a small part’ of total UK emissions reductions achieved
in the previous year, but that the economic recession and other exogenous factors
were the primary cause. In consequence the Committee recommended that over the
current (five year) carbon budgetary period the government’s aim should (already) be
amended so as to outperform by around 6% (Climate Change Committee, 2010).

3.2 Implications of Expert Leadership in Risk Management

The emergence in such a key role of an expert body such as the Climate Change
Committee arguably conforms to what has been classically described as a ‘co-
production’ model of decision making (Weber, 1946). Such a model can be said to
move beyond both more top down political determinist and technocratic approaches,
by placing greater emphasis upon securing openness through negotiation in respect of
such processes as setting and delivery of policy goals.

The new institutional arrangements under the 2008 Act open up opportunities for
wider debate and reflection concerning optimum risk management strategies in
relation to climate change. It will be important to measure the adopted approach
against conformity with those essential requirements – especially, for clarity as to
administrative priorities for addressing identified risks, for maximum transparency,
and for participation and accountability – that have been identified as minimum
demands for an effective risk-based regulatory system (Fisher, 2007).

In a closely related field, concerning infrastructure planning decisions, it is notable

that (in June 2010) the incoming UK government announced its intention to bring
forward a Decentralisation and Localism Bill.33 One of its essential elements is
expected to relate to the Infrastructure Planning Commission (created under the
Planning Act 2008). This body, whilst having a fairly circumscribed remit, is vested
with substantial executive decision making powers in relation to the process of major
infrastructure planning applications. The government proposes the abolition of the
Commission, and intends to place its work within the remit of its own Planning
Inspectorate, with decisions made by the Secretary of State. Although major strategy

30
Ibid., section 18(8).
31
Ibid., section 21(2)(3).
32
Ibid., section 22(7).
33
Hansard, HC Deb, 29 June 2010, Col 34-36WS (G Clark, Minister of State, Department for Communities and
Local Government).
 41

documents had remained within the aegis of the Secretary of State even under the
Planning Act (through the issue of National Policy Statements), the above
retrenchment suggests a formal return of the planning control process into the political
– and away from the technical – domain.

Role distinctions as between those who are politically accountable and those with
technical expertise have been widely explored: for instance the European
Commission, in developing its approach to the precautionary principle, adopted a
broad divide as between the roles of expert, in risk assessment, and political decision
maker, in risk management (European Commission, 2000). The idea of rigidly
separate roles for delivering respective assessment and management responsibilities is
arguably not a realistic one; and for instance it will often be appropriate for scientists
to be tasked with considering and advising on risk management options (Office of
Science and Technology, 2000). Two further issues arise here. First, fuller attention to
the delivery of accountability generally becomes necessary the more that decision
making becomes dispersed away from those more clearly legitimated institutional
arrangements.

Secondly, risk is ultimately socially constructed, and issues as to both risk perception
and risk acceptability generally demand broader constituencies than can be provided
by specialist bodies alone. Expert analysis is in certain respects inevitably
subjectivised, for scientists too have values, and these also influence processes of
interpretation, more especially in areas of uncertainty (Wynne, 1996). Beck has
argued that society’s reliance upon the benefits of technological progress has arguably
led to an ‘experimental society’ (Beck, 1992), in which an unregulated, unaccountable
technological and scientific establishment performs an inadequate protective role.
Interestingly, in recent litigation in which judicial review was sought concerning the
legality of UK Government application of the Pesticides Directive (for the purposes of
providing protection to persons),34 respectively the High Court,35 and the Court of
Appeal, 36 reached different conclusions in the face of conflicting approaches adopted
by two expert bodies.

Accordingly, in this vital policy area of climate change (and in apparent contrast with
amending proposals relating to infrastructure planning), it is likely that the state will
find it increasingly either opportune or necessary to cede important areas of
discretionary risk management to an expert body such as the Committee on Climate
Change. The implications will require careful scrutiny, as to both the efficacy of the
operation of the statutory regulatory regime and its wider consequences for the
democratic polity.

4 Conclusion: Seeking Sustainable Solutions in Response to

Climate Change
Some brief thoughts are offered by way of conclusion.

34
EC Directive 91/414 on Plant Protection
35
Downs v Secretary of State for the Environment, Food and Rural Affairs [2009] Env LR 19.
36
Ibid., [2009] EWCA 664.
 42

The Climate Change Act 2008 is not only a unique piece of legislation by virtue of its
scope and objectives for securing a transition by the UK towards a low carbon
economy. It also provides a context for two particular mechanisms, which though on
the face of it they are yet another mix of the substantive and procedural, suggest
something more radical. First, there is the application of apparently clear,
unambiguous duties upon central government, particularly to produce and to meet
carbon budget commitments over defined timeframes and in light of stated net
emissions reduction goals. Secondly, the creation of the Climate Change Committee,
however circumscribed its executive authority may on the face of it be, could amount
to a momentous institutional reform, and the outturn of the first carbon budgetary
period (2008-12) will provide valuable evidence as to how far the potential trends
discerned above have eventuated.

One final consequence of interest to the scientific community should be noted, as

expert analysis is likely both to be called upon and more openly scrutinized in the
public domain. This may lead to conflict between politicians and science advisers: as
occurred in the UK in 2009, in the context of whether it was appropriate for the
(academic) chair of an advisory committee on illegal drugs to continue to publish
views on questions of classification at variance with government policy.

With an eye to the role of the Climate Change Committee, it must be expected that as
its influence and authority becomes further established, its pronouncements will bring
it increasingly into the domain of political contestation. Already, in the climate
change context, academic climate scientists have found themselves increasingly under
pressure, from a variety of stakeholder and ‘climate sceptic’ interests; as has been
seen in the so-called ‘glacier-gate’ and ‘climate-gate’ controversies (Hickman, 2010).
A body with an influential role in risk management will be an inevitable focus for
challenge and controversy.

According to Jared Diamond (2006), a society’s responses to its problems ‘depend on

its political, economic and social institutions and on its cultural values. Those
institutions and values affect whether the society solves (or even tries to solve its
problems’. Ultimately, issues of accountability, as well as policy effectiveness, lie at
the core of the questions considered above. In delivering compliance with statutory
duties now placed on governments, and emerging policy drivers that underpin
performance, expert technical contributions will be pivotal. In light of the crisis in
civil society and its institutional capacities that forms the backdrop to these
developments, for all that reliance on expert inputs is a valid response, resulting
systemic problems still need to be addressed. In so far as ordinary processes for
engaging the public and private spheres, and civil society more generally, are proving
inadequate in the face of climate change, the radical approaches ushered in by the
UK’s legislation may succeed in assuaging fears that more draconian measures will
prove necessary.

5 Referen ces
 43

Anderegg W R L, Prall, J.W, Harold, J and Schneider, S H (2010) ‘Expert Credibility

in Climate Change’, 107 (27) Proceedings of the National Academy of Sciences of
the United States of America 12107-9.

Beck, U (1992), Risk Society: Towards a New Modernity, Sage, London.

BERR (2002), Department for Business, Enterprise and Regulatory Reform, Fuel
Poverty Strategy (November 2001, revised December 2002),
http://www.berr.gov.uk/files/file16495.pdf.

BERR (2007), 5th Annual Progress Report, 2007,

http://www.berr.gov.uk/files/file42720.pdf.

Cabinet Office (2003), Civil Contingencies Secretariat, response before Houses of

Lords/Commons Joint Committee (cited in Walker, C and Broderick, J (2006) The
Civil Contingencies Act 2004: Risk, Resilience and the Law in the United Kingdom,
OUP, Oxford, para. 8.27).

Climate Change Commission (2010), Meeting Carbon Budgets – Ensuring a Low-

Carbon Recovery, 2nd Progress Report to Parliament (June 2010).

Diamond, J (2006), Collapse – How Societies Choose to Fail or Survive, London,

Penguin, 14-15.

European Commission (2000), Communication on the Precautionary Principle,

COM(2000) 1.

Fisher, E (2007), Risk, Regulation and Administrative Constitutionalism, Hart,

Oxford.

Giddens, A (1990), The Consequences of Modernity, Polity, Cambridge, 131

Grant, M (2000), Environmental Court Project: Final Report, Department for

Environment, Transport, and the Regions, London, para. 12.10.12.

HC Treasury Committee (June 2008), Budget Measures and Low–Income

Households, 13th Report, 2007–08, HC 326, para. 151.

Hickman, L (2010), ‘US Climate Scientists Receive Hate Mail Barrage in Wake of
UEA Scandal’, Guardian, 2 July.

Hulme, M (2009), Why We disagree about Climate Change – Understanding

Controversy, Inaction and Opportunity, CUP, Cambridge.

IPCC (2007), International Panel on Climate Change, Exert Working Group I, Fourth
Assessment Report, Climate Change 2007 – The Physical Science Basis, CUP,
Cambridge.

Office of Science and Technology (2000), Review of Risk Procedures Used by the
Government’s Advisory Committees Dealing with Food Safety, HMSO, London.
 44

Rajamani, L (2007), ‘Public Interest Environmental Litigation in India: Exploring

Issues of Access, Participation, Equity, Effectiveness and Sustainability’, 19 Journal
of Environmental Law 293.

Rittell, H and Webber, M (1973), ‘Dilemmas in General Theory of Planning’, 4

Policy Sciences 155.

Stern, N (2008), Key Elements of a Global Deal on Climate Change, London, LSE.

USNOAA (2010), US National Oceanic and Atmospheric Administration, Earth

System Research Laboratory, Mauna Loa, Hawaii, Climate Report:
http://www.esrl.noaa.gov/gmd/ccgg/trends/.

Weber, M (1946), Essays in Sociology (eds. Gerth, H H and Mills, C W), OUP,
Oxford.

Wynne, B G (1996), ‘May Sheep Safely Graze? A Reflexive View of the Expert-Lay
Knowledge Divide’, in Lash, S, Szerszynski, B and Wynne, Environment and
Modernity, Sage, London, 59.
 45

COBRA 2010 Legal Research Symposium

Understanding property rights in carbon: A methodological
inquiry

Jason Prior1,2 and Spike Boydell2

1
Institute for Sustainable Futures,
University of Technology, Sydney, PO Box 123, Broadway NSW 2007
Australia
2
Asia-Pacific Centre for Complex Real Property Rights,
University of Technology, Sydney, PO Box 123, Broadway NSW 2007
Australia

Email: [email protected]; [email protected].

Abstract:
 
Climate change threatens to have wide-ranging impacts on the sustainability of
ecosystems and presents enormous challenges for conventional modes of socio-
economic governance. Against this backdrop, there have been a range of responses to
put a price on carbon such as the EU Emissions Trading Scheme (ETS) and New
Zealand ETS, and the unsuccessful Carbon Pollution Reduction Scheme Bill 2009 in
Australia. These ETS models do not clearly articulate the underlying asset, the carbon
property right, upon which the price of commoditised carbon is secured. As a result of
such initiatives, a clear understanding of what comprised a property right in carbon is
emerging as a foundation component in the arsenal of mechanisms that are being
brought together to mitigate and adapt to climate change at the international level.

Drawing on the work of various researchers this paper develops a framework for
understanding disciplinary, interdisciplinary and transdisciplinary research in the
context of carbon property rights. In developing this framework, the paper engages
with the inevitable task of exploring the diverse approaches that have been applied to
analyse real property rights. We outline how recent research on emergent property
rights in natural resources, such as water and carbon, have challenged the way in
which related rights, obligations and restrictions have been conceived.

In undertaking this exploration, we take a step back from the immediacy of the issues
of carbon property rights to explore the way they are framed through institutions and
disciplines. We present the findings from this exploration in two parts. The first
explores the state of research and practice into carbon property rights from within
disciplines, between disciplines and across disciplines. The second part extends this

 
 46

discussion by exploring some of the challenges that face such research. The paper is
intentionally broad in scope, although our research focuses attention on the challenges
facing research within, between and across the ‘normative’ disciplines such as law,
economics, planning, and politics.

Keywords:

Carbon property rights, disciplinary, interdisciplinary, transdisciplinary, planning,

law, economics, sociology

1 Introduction
In recent times the issue of climate change has moved to the forefront of scientific and
policy agendas. Climate change threatens to have wide-ranging impacts on the
sustainability of ecosystems and presents enormous challenges for conventional
modes of socio-economic governance. Against this backdrop, there have been a range
of responses to put a price on carbon (e.g. EU Emissions Trading Scheme, NZ
Emissions Trading Scheme). However, like the unsuccessful Carbon Pollution
Reduction Scheme Bill 2009 in Australia, these ETS models do not clearly articulate
the underlying asset, the carbon property right, upon which the price of carbon is
secured. Achieving a coherent international understanding of what comprises an
emergent property right in carbon is a core component in the arsenal of mechanisms /
techniques that are being put together to mitigate and adapt to climate change.

Drawing on the work of various researchers this paper develops a framework for
understanding disciplinary, interdisciplinary and transdisciplinary research (Max-
Neef, 2005, Klein, 2004, Wickson et al., 2006, Riedy, 2003, Lawrence and Despres,
2004, Nicolescu, 2006) in the context of carbon property rights. In developing this
framework, the paper engages with the inevitable task of exploring the diverse
disciplinary (e.g. Arnold, 2002, Zellmer and Harder, 2007), pluridisciplinarity, and
interdisciplinary (e.g.von Benda-Beckmann et al., 2006a) approaches that have been
applied to analyse real property rights. In particular, these approaches investigate
how emergent property rights in natural resources, such as water and carbon, have
begun to question the way in which related rights, obligations and restrictions have
been conceived. Such an exploration provides insights into the values, ethics and
epistemology but also the institutional frameworks that one may need to engage in
such practices (Snow, 1964, Gieryn, 1999, Pickering, 1992)

In undertaking this exploration, we inevitably take a step back from the immediacy of
the issues of carbon property rights to explore the way they are framed through
institutions and disciplines. We present the findings from this exploration in two parts
within this paper. The first explores the state of research and practice into carbon
property rights from within disciplines, between disciplines and across (or more
correctly, transcending) disciplines. The second part extends this discussion by
exploring some (and by no means all) of the challenges that face such research,
ranging from disciplinary participation through the ability of disciplines to support the
necessary and rapid emergence of regulatory frameworks for carbon property rights.
The paper is intentionally broad in scope, although our research in the second stage of
the paper focuses attention on the challenges facing research within, between and
across the ‘normative’ disciplines such as law, economics, planning and politics,

 
 47

disciplines which are of particular interest to this COBRA conference and to our own
ongoing research agenda.

2 Within, between and transcending disciplinary research and

practice
2.1 Disciplinary research and practice
Disciplinarity is specialisation in isolation, which is the level of most academic
knowledge production at present (Miller et al., 2008, Max-Neef, 2005, 6). Over the
past century, property rights research, and more recently property rights of natural
resources such as carbon, has emerged as a foci within a broad range of disciplines
including archaeology (Earle, 2000), anthropology, ethics, sociology (Sorensen, 2000,
Hann, 2007, Hann, 1998a), psychology (Beaglehole, 1934-35, Beaglehole, 1931), law
(Arnold, 2002, Sheehan and Kanas, 2008, Sheehan, 2008, Boyd, 1995), geography
(Bromley, 2008, Kedar, 2003, Waters et al., 2003), history, philosophy, economics
(Furubotn and Pejovich, 1974, Gordon, 1954, Alchian, 1965), biology (Hardin, 1968)
and planning (Jacobs and Paulsen, 2009, Krueckeberg, 1995, Birch and Silver, 2009,
Webster and Lai, 2003) to name but a few.

The recent attention on carbon property rights from within these diverse disciplines
highlights a range of concerns and uncertainties. Soil science, for example, questions
if there is adequate existing scientific knowledge to support the idea of a sequestered
carbon property right in biota, soil or water (Sheehan and Kanas, 2008).
Technological disciplines, such as forestry and geology, question whether techniques
such as bio-sequestration or geo-sequestration are effective, efficient and sustainable
enough to support a carbon management based on carbon property rights. Concerns
within such normative disciplines as law, economics, planning and politics challenge
what a carbon property right is and how it is best constituted for the future benefit of
society, providing a stable foundation for exchange markets and good governance
(Boydell et al., 2009b, Boydell et al., 2009a, Hepburn, 2007, Hepburn, 2009). And
finally, concerns from within disciplines, such as philosophy, as to the values and
ethics that underpin carbon management systems supported by property rights.

The questions raised within these disciplines not only relate to the emergent property
rights associated with these natural resources, but also challenge the way in which
property rights have hitherto been understood. A key example here can be drawn
from recent research within the discipline of law which has sought to question the
very foundation of property rights as conceived through the ‘bundle of rights’ and has
argued for its complete replacement (Arnold, 2002, Zellmer and Harder, 2007). For
more than a century the ‘bundle of rights’ identified by Henry Maine in Ancient Law
(1861), has provided some common ground for dialogue on property within law (but
also within a range of other disciplines).

Various approaches have been proposed as to how to define the components of such
bundles. Schlager and Ostrom (1992) offer: use rights, such as the right to access the
resource, withdraw from a resource, or exploit a resource for economic benefit; and
control, or decision-making rights, such as the rights to management (plant a crop),
exclusion (prevent others from accessing the field), and alienation (rent, sell, or give
away the rights) (for a more detailed exposition of these issues, see Boydell and
Searle, 2010, at this conference).

 
 48

Some scholars have argued for the need to develop more complex metaphors and
models for understanding contemporary property rights arguing that the ‘bundle of
rights’ is conceptually limited (e.g. Zellmer and Harder, 2007, Arnold, 2002). These
critiques have sought to question the existing conceptual effectiveness of the bundle
to address the complex nature of the inter-relationships and interests that are involved
in property rights associated with natural resources. Instead, they have presented new
metaphors and models that establish new building blocks from which to understand
and problematise contemporary property. For example, Arnold (2002, 281 & 283)
argues that the ‘bundle of rights’ is unable to address two of the essential principles
that underline modern property rights of natural resources such as: the
interconnectedness of people and their physical environment and, the importance of
the unique characteristic of each object.

In the face of these seemingly insurmountable limitations to the bundle of rights,

Arnold called for the formulation of a ‘web of interests’ as a metaphor for property
that addresses the “concepts of interconnection, ‘thingness’ (object-regard), and the
uniqueness of the object of property” (Arnold, 2002, 283, see also Zellmer and
Harder, 2007). Considering property through a web of interest suggests a more
heterogeneous approach to the management of real property, intended to capture a
wide range of relationships between people, and between people and property.
Within the context of the web of interest, “the thing [such as water] considered
property is at the centre [of a concentric web] and relationships with the thing … form
the internal strands of the web and the surrounding framework” (Zellmer and Harder,
2007, 7). In devising this broad-based metaphor for property, scholars are clear to
point out that “it must encompass all aspects of property, not merely those that
involve the natural environment” (Arnold, 2002, 283).

These critiques from within law share the view that articulating property through the
bundle of rights is too narrowly conceived, that it brings up the image of exclusivity
and separation. The bundle approach does not adequately reflect the increasing sense
of interconnection and co-existence that marks contemporary property rights such as
those associated with carbon (Boydell et al., 2009a, Arvanitakis and Boydell, 2010) or
water (Zellmer and Harder, 2007). These new models and metaphors proposed by
such researchers as Arnold promote the use of such terms as ‘interests’ rather than
just ‘rights’, as a way to promote a more fluid articulation and understanding of
contemporary property in natural resources. Such approaches to the
reconceptualisation and formalisation of property rights have not been without
criticism (Meinzen-Dick and Mwangi, 2009, Hann, 2007).

2.2 At the boundaries of disciplinary research and practice

The ability to shift beyond the realms of disciplinarily to interdisciplinary and
transdisciplinary research into carbon property rights is complex. Interdisciplinary
work is troublesome because the search for knowledge in different disciplinary fields
entails different interests, and thereby different values too; and the different
possibilities of knowledge about different subjects also lead to different
epistemologies. Thus, differences among those who practice the various disciplines
are pervasive and have been aptly described as cultural ones (Snow, 1964, Snow,
1962). By seeing disciplines as cultures, one recognises that knowledge, methods, and
theoretical approaches to a particular cannot be separated from practice.

 
 49

The intractability of working effectively across disciplinary cultures is apparent

through the emergence of disciplinary ‘boundary work’ (Gieryn, 1999, Pickering,
1992). One purpose of boundary work between disciplines involves an ongoing effort
to delineate the domain of disciplines. The process of maintaining disciplinary
boundaries involves delineation of their borders and related resistance to threats from
outside (see Solomon and Hackett, 1996) as well as threats to its cognitive authority
from within (e.g. pseudo-science). It is to societal advantage to protect such strong
disciplinary based research, as long as it does not preclude the transdisciplinary and
boundary work that is essential to realising new and meaningful interpretations of
complexity. Put another way, for example we would not want to stifle the powerful
research that such a discipline as soil science could contribute to our ability to
understand and conceive of carbon sequestration in soils (Sheehan and Kanas, 2008).
Such disciplinary knowledge has the ability to bring a sense of security to a carbon
management system that inevitably we hope will play a key role in our
intergenerational sustainability. However, such knowledge only serves society if it
can be operationally integrated and applied within other disciplines.

Just as it is important for us to support such disciplinary research, it is also important

for us to have the opportunity to explore possibilities outside of these disciplinary
structures and between them. Initially, ‘boundary work’ was formulated to maintain
the boundaries of disciplinary communities, however, there is also increasing
recognition from within disciplines that work at the boundary / between disciplines
can be fruitful. Such work is not seen as an unbridgeable chasm, rather one that must
often be approached carefully through the establishment of boundary objects and
organisations. This allows disciplines to explore the flexibility of boundary work
without threatening the core values and interests of those disciplines. That is,
boundary objects and organisations which sit between different disciplinary cultures,
can be used by individuals within each for specific purposes without losing their own
cultural identity (Star and Griesemer, 1989). A clear example of a boundary object
that is truly interdisciplinary is the formation of bio-chemistry; the formation of such
an interdisciplinary field must overcome the ‘epistemic and methodological
sovereignty’ of those disciplines that formed it. The idea of boundary organisations
has proved particularly useful within the context of environmental management
(Guston, 1999). This is because a need has emerged for the development of entities
that contain both scientific and political elements. As Miller (2001, 480) identifies,
these “institutions that are neither laboratories nor conventional political organizations
are increasingly prevalent features of the institutional landscape of modern society
and play key roles in managing the interactions between science and politics,
economics, and cultures”.

These new boundary institutions have emerged in the context of “mobilizing science
in support of global policy making [to address climate change] … turning to science
in a wide array of decisions such as apportioning blame for greenhouse gas emissions,
assessing the need for regulatory intervention in the global economy, finding policy
and technological solutions, and compensating victims of climate change currently
underway ” (Miller, 2001, 479, see also Pickering and Guzik, 2008)

The call for such boundary work has arisen within the domain of property rights,
particularly within the emergent rights in water and carbon. Such boundary work is a
particular focus of our ongoing research. We have been influenced in this boundary

 
 50

work by research undertaken by the Legal Pluralism Research Group at the Max-
Planck Institute for Social Anthropology, notably by the thinking of Franz and Keebet
von Benda-Beckmann (see von Benda-Beckmann et al., 2006a). They question the
strong foundation of property rights from within particular disciplines such as
economics and law (Cole and Grossman, 2002, Hoppe, 2004, FIABCI, 2002, Coase,
1960, Furubotn and Pejovich, 1974, Economist, 2006, Devlin and Grafton, 1998,
McEwin, 1993). For example the dominance of the standard liberal model and related
economic (mis)understandings over property rights can be seen in the Coasian
foundation of such instruments as the Kyoto Protocol. Within this context, putting a
price on carbon, and the use of carbon offsetting and carbon trading as mechanisms to
abate carbon emissions is underpinned by the Coasian solution for the ‘tragedy of the
commons’ – the clear assignment of individualised property rights by “privatizing the
commons and trading the resulting property rights” (Hepburn, 2007, 376).

The Coasian solution puts faith in private bargaining and is supported by the ‘new
institutional economics’ of North (1990) and others (see Hann, 2007, 293, for a
critique of the 'standard liberal model'). Let us contextualise this in Hardin’s parable
of the Tragedy of the Commons. If the property rights to carbon are divided among
individuals, then (according to the standard liberal model) each individual will have
proper economic incentives to manage those property rights wisely. Questioning the
dominance of economic and legal disciplinary perspectives over our understanding of
property rights, von Benda-Beckmann‘s contest that property is too significant for the
functioning and reproduction of social systems to be confined to the domain of
economy, pointing out that property regimes “cannot easily be captured in one-
dimensional political, economic or legal models” (von Benda-Beckmann et al., 2006a,
2). In place of these one-dimensional economic and legal models, von Benda-
Beckmann et al. (2006a) argue for a more interdisciplinary exploration of property
rights, in particularly one that takes into consideration the social and anthropological
understanding of property.

A similar call for a more interdisciplinary approach to property rights can be found in
the work of Elinor Ostrom (see Ostrom et al., 1994, Ostrom and ebrary Inc., 2002,
Ostrom, 2005, Ostrom, 1990). She advocates the analysis of common property
through the Institutional Analysis and Development framework (for Ostrom’s own
critique of the Coasian solution and Hardin’s parable, see Ostrom, 1990, 1-28, Hess
and Ostrom, 2007, 10-12). Such a perspective seeks to draw on the long tradition
outside of law and economics, which has sought to understand property rights through
such disciplines as sociology and anthropology amongst other social sciences (see
Gluckman and University of Zambia. Institute for Social Research., 1967, Gluckman
and University of Zambia. Institute for African Studies., 1972, Gluckman, 1965,
Gluckman, 1955, von Benda-Beckmann, 1995).

Real property rights, obligations and restrictions can be found in and change across
the full range of human societies, both in time and space (e.g. Hann, 1998b,
Beaglehole, 1931, Emigh, 1999). The social disciplines seek to argue that different
societies give different answers to the question of what can be owned? The inclusion
of new objects or the exclusion of old ones is a process variably shaped by political,
cultural, economic, and technological factors - why some objects can be owned and
others cannot depends on culture and formal law. The set of potential owners varies
across societies (e.g. different societies recognise ownership by households, lineages,

 
 51

villages, kin groups, or other collectives). Gluckman (1965) was driven by concerns
that the bundle of rights approach would privilege western colonial powers. He
developed another influential property metaphor with his concept of ‘estates of
administration’, which grew out of his social anthropological fieldwork in southern
Africa in the late colonial period (early to mid 20th century). Gluckman’s theorisation
was intended in part to create property rights that recognised indigenous relations
(Gluckman, 1965). The sociological and anthropological perspectives seek to
recognise that as society’s demands on real property have evolved, so have the use
rights thereon (Polanyi and Prosch, 1975). Important counsel can be drawn from
Hann (2007, 310), “…we should not exaggerate the impact of the present fetishization
of private property. The trend to propertization, in the sense of extending individual
ownership and converting more and more ‘non-real’ objects into market or quasi-
market commodities often appears unilineal and irresistible”.

Using boundary work in property rights as proposed by the von Benda-Beckmann’s

(2006a), and arguably through our interpretation of researchers such as Ostrom (see
Ostrom, 1990), we explore property rights through interdisciplinary and
transdisciplinary means in the next section of this paper. This contrasts with specific
delimited boundary work that may be just multidisciplinary, a situation where there
may be many practitioners who are looking at their individual pieces of the puzzle
from their respective disciplinary perspectives without evident cooperation (see
Caulfield, 1998). It also contrasts with pluridisciplinarity, which is demonstrated
through the level of cooperation between practitioners from different disciplines
without clear coordination or stimulus to promote this cooperation (Max-Neef, 2005).

2.3 Transcending disciplinary boundaries in research and practice

Both interdisciplinary and transdisciplinary approaches require collaborators to

transcend unconscious habits of disciplines that are not only epistemic but also often
institutional (for instance, the modern research university is quite clearly tied together
as institutions, in addition to their disciplinary components; the two in effect are often
blurred). The more those unconscious habits are explicated and the more we
understand how the disparate characteristics of the various intellectual disciplinary
cultures are related to the necessarily different interests, values, and epistemologies,
the more feasible becomes the goal of transcending disciplinary thought habits and
engaging in interdisciplinary and ultimately transdisciplinary research.
‘Transdisciplinarity concerns itself with what is between the disciplines, across the
different disciplines, and beyond all disciplines’ (Nicolescu, 2006, 143).
Nicolescu highlights the importance of recognising that there is a theoretical
transdisciplinarity (implying a well-defined methodology), phenomenological
transdisciplinarity (implying building models to connect theory to observed reality),
and experimental transdisciplinarity (allowing experimentation using a procedure that
will enable research design to be replicated). Accepting simultaneous and rigorous
consideration of these three aspects will allow the huge potential of transdisciplinarity
to be realised. Max-Neef (2005) provides insight into this explication by identifying
‘hierarchical levels’ for disciplines that need to be taken into consideration when
approaching interdisciplinary and transdisciplinary research. We expanded this model
(see Figure 1) in an earlier paper (McDermott and Boydell, 2010, 4), by integrating

 
 52

several interpretations of transdisciplinary hierarchies (Stewart and Cohen, 1997,

Max-Neef, 2005, von Benda-Beckmann et al., 2006b).  

Figure 1: Hierarchy of Transdisciplinarity

(Source: McDermott and Boydell, 2010)

For Max-Neef (2005, 7), “interdisciplinarity is organized at two hierarchical levels. It

thus connotes coordination of a lower level from a higher one”. A natural example of
interdisciplinary is the relationship between the normative discipline of planning and
those lower in the hierarchy “which defines the purpose of technical disciplines such
as engineering, agriculture, forestry and architecture” (i.e. on the second and third
hierarchical levels) (Max-Neef, 2005, 7). Climate change, as Max Neef has noted, is
one of the “list of … problematiques that are defining the … [21st century that can’t]
… be tackled from the sphere of individual disciplines” and which clearly represents a
transdisciplinary challenge (Max-Neef, 2005, 5). What is true for carbon is also a
reality for carbon property rights.

Integrating these concepts with the work of researchers such as von Benda-Beckmann
et al. (2006b), it is interesting to note the similarity between the transdisciplinary
practice framework put forward by Max-Neef and the systematically rigorous
framework for the study of property put forward by von Benda-Beckmann et al., not
to mention other researchers within the field of property commons such as Elinor
Ostrom (Schlager and Ostrom, 1992, Ostrom, 1990, Ostrom, 2005). In its systematic
rigour, this framework is an advancement on the loose notion of what Hann (1998a)
refers to as the embeddedness of property rights within such disciplines as economics
and law. Real property must be analysed at four layers which approximate those
proposed in Max-Neef’s in his hierarchy of disciplines. Firstly, as the von Benda-
Beckmann model suggests, the notion of property rights is an important element in
ideological or cultural understanding; that is to say that it has a value, ethic and
philosophy (i.e. how should we do what we want to do?). Next they argue that
property rights receives extensive attention within the normative disciplines such as
law (i.e. what is it we want to do?). They also point to the fact that property rights
manifest themselves at the level of concrete practice, (i.e. what are we capable of
doing?), and finally that it also finds itself within everyday practices (i.e. what

 
 53

exists?). The von Benda-Beckmann model is inherently transdisciplinary, at least by

Max-Neef’s criteria.

In place of disciplinary models, von Benda-Beckmann et al. put forward a

transdisciplinary model that distinguishes the need to engage with property rights
through the norms and values of a cultural tradition – the ideological layer. The
second layer consists of political and legal regulations models. Layer three consists
of the social relations of property (such as particular land uses and the way that these
may be tied to particular forms of kinship) and the implications for different forms of
social inequality. Finally, at the layer of ‘practices’, the actors may reinforce the
patterns of the other layers or they may initiate changes. Such a transdisciplinary
model for property rights, integrating notions of legal pluralism, provides an
opportunity to question deeply engrained beliefs about property.

3 Key challenges
The following section of the paper posits a series of challenges that we face in the
future development of research and practice relating to property rights in carbon
through disciplines, between disciplines and across disciplines. The goal here is to
point the way towards the broad challenges facing scholarship and practice that lie on
the horizon, a very close horizon at that. As noted earlier when discussing these
broad conceptual challenges, we will draw mostly on the normative disciplines (law,
economics and planning) as examples. All of these challenges are faced in unique
ways by all disciplines and their ongoing ability to research and engage in policy
development with government institutions.

3.1 The challenge of disciplinary participation

The first set of challenges focuses on issues of adequate participation by different

disciplines. To make our point, we will draw on the strong body of research that has
emerged into property rights from law and economics, but has remained
comparatively weak and is underrepresented as a body of research within the planning
discipline. We are not suggesting that research from within such disciplines as law is
stifled, rather that the research within other disciplines such as planning is
strengthened to provide the opportunity for developing more complex and
multidimensional insights into property rights.

In recent years, the disciplinary area of planning in its narrow sense of land-use
planning (see Scott, 2010, Shaw and Lord, 2007, Stead and Meijers, 2009, Wilson,
2007, Wilson, 2009, Woltjer, 2005), and in its broadest sense (see Carlsson-Kanyama
et al., 2008, Chermack and van der Merwe, 2003, Chermack et al., 2006, Cole, 1997,
Grossmann, 2006), has increasingly been engaging with the breadth of the potential
impacts of global warming as have a broad spectrum of other disciplines such as law
and economics. Yet within this broader spectrum of research, there has been a
conspicuous absence of research from within planning into the complexity of property
rights.

We contest that this absence is principally due to the study of property rights in
natural resources being part of the solution to global issues, issues that have been
limited for the most part to a range of disciplines such as law and economics

 
 54

(McEwin, 1993, Cole and Grossman, 2002). There are increasing calls for and a
nascent body of research into property rights from within planning (Jacobs and
Paulsen, 2009, Webster and Lai, 2003, Needham, 2006, Zellner, 2008). As Jacobs
and Paulsen (2009) have recently noted, property rights is very much the neglected
theme of 20th century planning within the US, and has the potential to remain as
neglected an issue in planning in the 21st century. We support their arguement that
this is a significant oversight given “the role private property rights have played in
shaping public land use planning [during the 20th century]” (Jacobs and Paulsen,
2009, 134).

We would take this call a stage further by arguing that research into property rights
from within planning is not only important for the way in which it shapes land use
planning but also for the way in which it “confronts the art and artfulness of [the
diverse domains of planning such as] social planning” (Denman, 1978, see preface)
and environmental planning (Zellner, 2008). At present, planning relies heavily on
law and economics for its understanding of property rights (see Needham, 2006).
Whilst these links are relevant and should not be denied, it is important to recognise
that planning extends far beyond such intersecting domains. If planners are to provide
a more powerful contribution to such ideas as property rights, they need, as Jacobs
and Paulsen argue, to begin to “tell their own story about how property rights relates
to planning” (Jacobs and Paulsen, 2009, 141). We see this type of story emerging
within the recent work of such researchers as Needham (2006) as opposed to earlier
research (Denman, 1978). Needham (2006, 1) asks fundamental questions such as
how “land-use planning affects property rights”.

The benefits, for example, of studying property rights more fully from within
planning are broad and could range from its epistemic make-up through to its objects
of practice. As Max-Neef (2005).has noted, like philosophy, planning is one of the
most integrative disciplines. As such, research led by planning has the potential to
develop more complex understanding of property rights than many other disciplines.
As Jacobs and Paulsen have noted planning practice has the ability to engage more
fully with property rights through the development of such practical instruments as
“property rights impact statements as part of the planning process” (Jacobs and
Paulsen, 2009, 141). Such instruments could play a powerful role in exploring and
testing the broad impacts of property rights and ultimately verifying if the intended
moral and ethical foundations which inform the ideologies behind particular types of
property rights such as those in carbon are being attended.

3.2 The challenge of internationalisation of disciplinary research and practice

The second set of challenges are those of internationalisation associated with the
global extent of the climate change problem and the difficulties on studying property
rights not only from within diverse disciplines but within disciplines that have
epistemic differences both in and between countries. This is particularly important
given that climate change does not operate between but across national boundaries.
We have to look no further than the authors’ base – Australia, being a federation of
six states and two territories, suffers the challenge of having eight similar yet discrete
sets of legislation relating to property. All Australian States now have legislation to
define Carbon Sequestration Rights (CSRs), recognising sequestered carbon as a
property right that can be bought and sold, and protected through registration on
 55

freehold land title if desired. The challenge of the Australian situation is compounded
by multiple interpretations of carbon property rights – that is, variously, forestry
rights, forestry carbon rights, profit à prendre, and carbon property rights (for a
broader discussion on this see Boydell et al., 2009a, Hepburn, 2009).

We acknowledge the efficacy of the EU ETS, which manages to transcend a diversity

of legal frameworks under the umbrella of the open border mandate of the European
Union. This is despite the point that the epistemic base of disciplines does not only
change across disciplines but between countries (Browaeys, 2004, 2-3), and in
particular for this paper, between Anglo-Saxon and Continental legal traditions. The
Anglo-Saxon tradition is grounded in the feudal ‘doctrine of estates’, grounded in the
ultimate ownership of the monarch – i.e. fee simple absolute in possession there by
grace of the Crown. Conversely the Continental legal tradition, through its
engagement with Napoleonic and Germanic legal systems, starts with the concept of
‘full ownership’ (Needham, 2006, 34), albeit that the term ‘ownership’ has a range of
contested interpretations given that what is actually ‘owned’ is one or more property
rights, obligations or restrictions. “The most basic clement in the anthropologist’s
approach to property (and other key concepts) is to question whether the
understanding that has emerged in Western intellectual traditions can provide an
adequate base for understanding the whole of humanity” (Hann, 2007, 289).
Moreover, as Hann questions, are the currently dominant understandings of property
relations (i.e. the ‘standard liberal model’) a “highly distorted representation of how
contemporary Euro-American property systems actually function”? (Hann, 2007, 289-
230) The answer to this question necessarily triggers a range of philosophic
reflections on the theory of knowledge (surrounding the qualities of our beliefs and
values, now and into the future) that are beyond the scope of the current paper.

3.3 The Challenge of Integration

The third set of challenges arises from the imperative of integrating governance
systems (for example, international, federal and state) and disciplinary knowledge (for
example, law, planning and science) in the creation of property rights in carbon. The
breadth of the potential impacts of global warming invites such integration. The logic
of integrated management in the climate change context is unquestioned given the
borderless nature of the commons. As is apparent from our discussion of boundary
work previously, responses to environmental management generally requires
integration across a number of dimensions, including across disciplines, information
sources, ecological components over time and space, as well as governance and
institutional structures. The clear fault lines that currently exist in the current
structures which we use to support and understanding property rights are beginning to
be identified by such researchers as Arnold (2002) and von Benda-Beckmann et al.
(2006a) as outlined above. These insights provide clear reasoning as to why such
integrated governance and understanding is required in terms of property rights in
natural resources (e.g. water and carbon).

As we mentioned above, some of the research thinking that we have drawn on (such
as Max-Neef, 2005, Nicolescu, 2006, von Benda-Beckmann et al., 2006a) provides
useful insights that we can apply to the issue of carbon property rights to achieve a
more integrative perspective. As Max-Neef (2005) has made clear, the obvious
starting point for promoting such integration rests with those disciplines, such as

 
 56

philosophy, planning, law and design, which by their very nature are fertile domains
for integration. For example, planning by its very nature is multidisciplinary involving
the natural sciences, social sciences and humanities, and also incorporates action-
oriented practices aimed at transforming the built and natural environment. As von
Benda-Beckmann et al. (2006a) have noted, we need to find ways of linking up and
understanding property rights in natural resources across all four of the disciplinary /
professional levels. Max-Neef (2005, 7) argues that these can be reduced down to
four simple questions: How should we do what we want to do (with carbon property
rights)? What is it we want to do (with carbon property rights)? What are we capable
of doing (with carbon property rights)? What exists (that is, what scientific evidence
exists that allows us to understand what a carbon property right is)?

The challenges to such integration are multiplex. Our capacity to develop an

integrated understanding and approach to carbon property rights is contingent on our
ability to comprehend its complexity. The compartmentalisation of scientific and
professional knowledge through disciplines is compounded by the sectoral division of
responsibilities in contemporary society around responsibility (see discussion
immediately above around multi–governmental directions within Australia). Such
challenges to integration are not only apparent across disciplines and sectoral
divisions, but also within disciplines and sectoral divisions.   Perhaps the most
complex challenge that faces the creation of effective carbon property rights in the
immediate future is how we integrate (or otherwise) significant new disciplinary and
sectoral ‘bodies of knowledge’ about carbon property rights into other pre-existing
disciplinary and sectoral domains. How, for example, do we integrate the significant
new body of ideals about what a carbon property right should embody into legal
principles, and how do we integrate these with other existing general environmental
laws and property law, and with the broader legal framework.

As a recent / emergent commodity, carbon property rights are a creature of the

common law. As we highlighted in a recent paper (Boydell et al., 2009a, 113), “…
such common law will attempt to characterise this emergent tenurial interest in terms
of the characteristics of other established tenures in the Australian property law
system. … there is an inherent susceptibility within the “bundle of rights” for some
legal rights to be favoured over other rights. As the common and statute law currently
stand, this susceptibility in the case of carbon is arguably a fatal limitation to the
prospect of establishing a true freestanding property right in carbon”. Given the
shortcomings of these issues in Part 10 of the Australian Government Carbon
Pollution Reduction Scheme Bill 2009, we believe the Minister for Climate Change,
Penny Wong, was fortunate that the Bill did not receive assent. Had it become
legislation, the lack of clearly defined property rights in carbon would have quickly
rendered it unworkable.  

4 Conclusion
Several important implications about the conception of carbon property rights, carbon
reduction and research arise from this paper.

First, the challenge caused by multiple diverse disciplinary perspectives on the subject
of carbon property rights. In exploring carbon property rights, we noted how several
disciplines have explicit goals and boundaries. Within these respective contexts,

 
 57

carbon property rights are seen as an extension of each particular discipline. As we

note, these disciplinary perspectives can provide key insights into what constitutes a
carbon property right and should not be negated. The answer (or way forward) lies in
contextualising these fragmented and disparate insights.

Second, there is increasing recognition that key questions about the natural and
human-made environment need to be explored using innovative concepts and
methods that cannot be addressed solely from within individual disciplines with their
respective epistemic and theoretical frames. As we discussed, this stems from the fact
that the capacity of human societies to deal with environmental questions such as
climate change increasingly require research and thinking that extends across the
boundaries of disciplines. The study of property rights in natural resources, such as
carbon, does not escape this, as we note there is an increasing body of research calling
for property rights in natural resources to be explored from more integrated
perspectives - pluridisciplinarity, interdisciplinary, and transdisciplinary. Such
boundary work requires disciplinary practitioners to subject their epistemological and
methodological rules to reflexivity, argumentation and negotiation. This can be
complex given that researchers within disciplines do not always agree on their own
disciplinary rules and standards. Thus, more integrative practice and research must
take a spirit of generosity and goodwill.

Finally, we highlighted some of the key challenges to the study of carbon property
rights from these diverse positions. Our focus here was on the challenges facing
research within, between and across the ‘normative’ disciplines such as law,
economics, and planning. As Hann (2007, 307) identified, “…the economist who
considers only rational maximising behaviour is blind to the relationships and values
which underpin property and hold society together”. Just as the standard liberal
model is an inappropriate way of solving the global financial crisis, existing legal
precedent or market based thinking is not necessarily going to assist in addressing the
impacts of climate change. Adaptation is part of the solution. Likewise,
transdisciplinary and boundary approaches are essential practices to find new and
innovative ways to articulate workable property rights in carbon.

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Managing Spontaneous Cities, Cheltenham, UK, Edward Elgar.
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Research: Characteristics, Quandaries and Quality. Futures, 38, 1046-1059.
WILSON, E. (2007) Comment: Response to Planning Theory and Practice 2006, 7(2),
Interface: Is the Issue of Climate Change too Big for Spatial Planning?
Planning Theory & Practice, 8, 125 - 127.
WILSON, E. (2009) Multiple Scales for Environmental Intervention: Spatial Planning
and the Environment under New Labour. Planning Practice and Research, 24,
119 - 138.
WOLTJER, J. (2005) Comment: The Multidimensional Nature of Public Participation
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 62

Building regulations and control in the face of climate change

Henk Visscher,1 Frits Meijer and Laure Itard1

1
OTB Research Insitute for the Built Environment,
Delft University of Technology,
The Netherlands

Email: [email protected]; [email protected]

Abstract:
Since a few years the attention for building regulatory systems and enforcement
procedures is growing. Various developments in society, politics and the construction
industry have influenced changes in the systems of building control in the last 20 years.
The influence of climate change and the related demands on buildings will have a very
strong impact of further transformations in this field. This was a reason to initiate a new
CIB taskgroup (TG79) focussing on building regulations and control in de the face of
climate change. In this paper we present some research findings about the relation
between regulations and actual performances of buildings. These experiences make
clear that the function of building control might change in the next years.

Keywords: Building Regulations, Building Control, Energy Performance, Energy Saving,

Climate Change

1 Introduction
The European building sector is responsible for about 40% of the total primary energy
consumption. To reduce this share, the European Commission (EC) has introduced the
Energy Performance of Buildings Directive, the EPBD (2002/91/EC). This framework
has lead to energy performance certificates for buildings. The EC has also highlighted
that future adaptations of the EPBD may be extended to include ‘low energy or Passive
Houses’ as a requirement, setting a target date of 2020. For newly built houses the
national building regulations prescribe increasing levels of energy performances. More
and more countries, but also regions or municipalities, formulate ambitions for net zero
energy or carbon neutral houses also on the shorter term.

Formulating ambitions and sharpening regulations is relatively easy to do. Technical

solutions are currently available to realize the passive house standard in building
projects. There is quite some evidence however that the mainstream of building
processes do not lead to the pre-defined quality. Traditionally the municipal
departments of building control in most countries had an important role in assuring that
building plans and construction processes would lead to buildings that meet the
minimum required quality levels. There is a tendency to put more emphasis on the
responsibilities of owners and private parties to ensure quality. This means that the
 63

private parties will have to improve their working process and will have to learn to
handle performance guarantees. Owners will require guarantees from the designers and
building companies for the quality of their property. Certification and accreditation of
parties, processes and products will become more important for building processes in
general.

For the realization of high energy performance standards, a reliable quality assurance
system will be very important. In most countries that have some experiences with
passive houses some form of performance guarantee and associated quality assurance
scheme exists. It is crucially important to study these examples.

This paper continues in section 2 with an elaboration on the trends in regulations and
building control. Section 3 presents some signs of failures in current building process in
the Netherlands. In section 4 the results of a study on the relation between the levels of
energy performance regulations and the actual energy use in the built houses are
presented. In section 5 we draw conclusions and finally in section 6 the TG79 group
with its purpose and intentions is presented.

2 Developments in systems of building regulations and building

control
Building regulations are the subject of an ongoing debate between, on the one hand,
those in favour of deregulation and reducing the administrative burden and, on the other
hand, new quality demands that require government intervention. Currently in the
Netherlands, both sides of this debate appear to be gaining in importance. Deregulation,
as well as high targets for energy conservation, save guarding structural safety and a
reliable government, are high on the politicians’ agenda. The desire for deregulation is
leading to the opinion that greater emphasis should be placed on the responsibility of
property owners, which could lead to less government intervention. However, the
existing forms of quality control for private actors in the Dutch building industry seem
to be of quite a low standard. Accidents occur and physical quality does not appear to be
sufficiently important. As the CO2 and energy targets increase, stronger regulations and
accurate building control become a priority. In the past ten years, it has become
increasingly clear that the quantity and quality of assessments carried out by many
municipal authorities leave something to be desired (VROM Inspectorate, 2007).

In this context we should remember that the client and the parties who engage for the
design and construction stages have primary responsibility for complying with
regulations. When a building permit is granted, this suggests that the plan has been
shown to comply with all the regulations. But this is not the case. In practice, a permit is
granted because, during the checking process, the plan was not found to deviate from
the regulations.

We will now return to the continuing call by politicians for greater deregulation and
easing of the administrative burden. In 1997 we contributed to the building-regulations
project as part of the MDW (Market Forces, Deregulation & Legislative Quality)
programme of the Ministry of Economic Affairs. The purpose of our research was to
formulate deregulation proposals on the basis of examples from other European
 64

countries (Visscher, 1997). Notably, in those countries, many private-sector parties are
involved in assessment and inspection. We have studied (Visscher, 2000) how the
responsibility for these tasks could be transferred to the private sector in the Netherlands
too, primarily through the certification instrument. The Ministry of Housing, Spatial
Planning and the Environment (VROM) also took up this idea. Since the end of the
1990s, it has been developing a process certificate for assessing building plans against
the requirements of the Building Decree.

The current cabinet is aiming to reduce the administrative burden by 25%. Again, the
field of building regulation is seen to have a great deal of potential in this regard. The
Ministry of Economic Affairs and the Ministry of VROM appointed the Construction
Sector Fundamental Review Committee (Commissie Fundamentele Verkenning Bouw)
chaired by Sybilla Dekker, the former Minister for VROM, to draw up proposals for the
far-reaching simplification of building regulations. The committee recommended the
abolition of preventive assessment of building plans by local authorities. The client
should be responsible for complying with the regulations and should also ensure that
sufficient checks are in place. It can engage a certified body to do this, but there may be
alternatives. The role of the municipal authorities will shift towards that of process
auditing, i.e. supervising the checks. The question is then: how this can be put into
practice?

In many countries there are problems with a lack of compliance with building
regulations, and this often serves as a stimulus for reviewing and improving the system
of building control. The considerable pressure to deregulate in the Netherlands has
parallels in other countries. There is a clear trend towards increasing the role of private
parties. In many countries, the role of local authorities in carrying out assessments and
implementation inspections has virtually disappeared.

Therefore it is interesting to study innovative ways in which quality is guaranteed by

private parties. The certification of passive houses is a field that requires building actors
to transform the usual building process into a performance based approach and to learn
by doing. In the next section we illustrate how the building process can be impacted
when the client requires a passive house.

Besides the conditions described in the previous section, the poor performances of the
building industry in the mainstream building projects in combination with a
withdrawing government from building regulations and actual building control is
perhaps the most important reason to develop reliable certification schemes.

3 Failures in the Dutch building industry

The cost of failures in the Dutch building industry amounts to more than 10% of
turnover (USP marketing consult, 2007). Total investment costs (including
maintenance) in homes were € 46 billion in 2005, which means annual wastage of € 4.6
billion in this part of the building industry. Vereniging Eigen Huis, a consumer
organization for homeowners, carries out final inspections on many new homes. In 2005
it was reported that construction companies are gradually improving their standards.
The average number of deficiencies in more than 1,400 homes examined at new build
 65

housing areas was 17.5 per home. However, some homes had as many as 71
deficiencies. There are also many problems with aspects of building physics, as revealed
in a study of 78 housing projects by the VROM Inspectorate (Kuindersma et al., 2007).
The researchers observed acute health risks, reduced living comfort and, above all, poor
energy performance. In order to comply with EPC regulations, a system whereby heat is
recovered from the ventilation system (balanced ventilation) is often installed. In the
past few years, this system has been installed in approximately 400,000 Dutch homes.
Problems with the system in the Vathorst area of Amersfoort have featured regularly in
the news (Duijm et al., 2007). An analysis of the problems has shown that they are not
necessarily due to the ventilation system itself, but that poor quality management
throughout the construction chain can lead to an accumulation of faults.

We suspect that the Dutch situation is not unique. At a meeting of the European
Consortium of Building Control in Riga in 2008, representatives from many countries
reported on problems in the individual countries. Although the problems are very
diverse, it is apparent that in many countries there is a discussion about the organization
of building control in the context of quality problems.

There are major challenges in terms of realizing and maintaining the physical
performance of homes. Requirements will become much more stringent than is
currently the case, particularly with regard to energy conservation, the indoor
environment and integral environmental quality. Quality management and, above all,
quality assurance are becoming more and more important. In the future, responsibility
for these aspects will be increasingly transferred to parties in the building sector.

4 The realisation of required energy performances in building

processes
2.1 Introduction
In the Netherlands the energy consumption of new buildings is subject to performance
based legislation. The energy performance is based on the Energy Performance
Coefficient (EPC). The lower the EPC, the more energy efficient the building should be.
Ever since its introduction in 1995, the EPC-value has become stricter. At that time, the
compulsory EPC-level was 1.4. Since then it has been lowered regularly down to a
value of 0.8. It is likely that the level will be lowered again in the near future. In the
framework of the Energy Performance of Buildings Directive, 30 European EN-norms
are being developed to establish the methods on which the energy performance is
calculated. In the Netherlands, the norm has been compulsory for almost 15 years now
and the evaluation of its effects on the actual energy used in dwellings was useful to
determine the efficiency of this type of regulation. In this section the effect of the Dutch
EPC regulation on the energy use for heating in dwellings built after 1995 is described.

2.2 Methods and data

This section is based on a study (Itard e.a., 2009) for a group of stakeholders
(Government, real estate developers, the construction sector and the umbrella
organisation for housing associations) that signed a covenant (The Spring Agreement)
for the realisation of new housing estates in the coming years with 50% lower energy
 66

consumption than the current level of regulations. Therefore it is useful to get more
insight in how the energy performance regulation (EPC) actually works out in practice.
The EPC-value accounts for space heating, space cooling, tap water heating, and
electricity needed for mechanical ventilation en lighting. Energy use for cooking and
electricity consumption for white and brown goods is excluded, because they are not
related to the building itself. It is evident in all cases that there is no direct match
between the measured consumption and the components of the EPC. Monitoring the
EPC is therefore not an easy task because it cannot be achieved by conventional
monitoring (monitoring of the energy used at the meter box, getting the data either from
the occupants either from energy companies).
There were only three surveys conducted during the past fifteen years to assess the
effectiveness of the energy performance regulation against the actual energy used for
heating. The first one by Jeeninga e.a. (2001), on a sample of 146 dwellings, the second
one by PRC (2004) and Uitzinger (2004), with a sample of 649 dwellings, and the last
one in 2008, by Itard e.a. (2009), on a sample of 217 dwellings. The scarcity of data and
the relatively small size of the samples may be related to the difficulties of monitoring
as was explained in previous section.
In the OTB sample, two sources of data were used: a survey among households in two
districts in the Netherlands, and Energy Performance calculation files from
municipalities and architect firms. The obtained Energy Performance files were those
from the dwellings where the survey was conducted, therefore allowing to match the
responds from the household survey with data on building characteristics. The survey
was carried out in autumn 2008 in two districts in the Netherlands built after the
introduction of the EPC. The final sample size was 217 households. The energy reported
by the respondents was from the last available energy bill.
However, none of these samples may be assumed to be representative for the Dutch
building stock build after 1995. There are many historical data about energy use in
dwelling, but from these databases, the WoON survey is the only one accounting for a
performance comparable to the EPC: the Energy Index (EI). Instead of being based on
design data like in the EPC, the EI is based on inspections and the formula used for the
calculation is comparable to the EPC formula. The WoON survey was carried out in
2005 by the Ministry of Housing in the Netherlands. It consisted on two questionnaires
applied to the occupants, and a dwelling inspection. The energy data included in the
database refers to the real gas used during one year in the dwelling. The sample of
buildings built after 1995contains 584 cases.

2.3 Results
In the OTB sample the dwellings were characterized according to EPC categories ‘no
EPC’, ‘1.4≥ EPC>1.2’, ‘1.2≥ EPC>1.0’, ‘1.0≥ EPC>0.8’ and ‘EPC≤ 0.8’. These
categories were chosen because the maximum allowed EPC value was set at 1.4 in
1996, and tightened to 1.2 in 1998, 1.0 in 2000 and 0.8 in 2006. No statistical
significant differences were found between the actual energy consumption of houses
with different EPC categories (for detailed statistics, see Guerra Santin e.a. 2009a.,
2009b. and 2009c.). There is only a statistical difference between dwellings in the
category ‘no EPC’ en dwellings with an EPC, meaning that the introduction of the EPC
regulation had an effect on the actual energy use, but not the further tightening of the
EPC-values. There were also no significant differences when the actual energy use per
square meter was used instead of the actual energy use of the whole dwelling. Figure 1
 67

shows the mean energy used per type of dwelling and per EPC category in the OTB
sample. With the exception of corner houses, for which the decrease is significant, no
differences in
energy use were
found for different
EPC categories in
flats, maisonettes,
terraced, double and
detached dwellings.

Figure 1: Energy used (mean LOG) per dwelling type and EPC level. For reasons of clarity, the
95% confidence interval is not plotted.
Similarly, analysis of the WoON database (for dwellings built after 1995) also shows
the absence of correlation between the actual energy use and the Energy Index.
Furthermore, an analysis of the gas consumption of dwellings built during different
construction periods seems to indicate as well that there was no significant reduction of
the energy used for heating in buildings built in the periods 1996-1997, 1998-1999 and
2000-2006 (see Figure 2).

Figure 2: Average gas use per m2 dwelling in 2004 [10]

In the OTB survey a correlation was found between the actual and the theoretical energy
consumption, although the real energy consumption is mostly lower than the theoretical
one.
Therefore we can state that although the EPC itself is not related to the actual energy
use, some of its constituents are. This indicates that the formula used to calculate the
 68

EPC, summing up space cooling, ventilation, lighting and auxiliary energy, and using
neutralization coefficients introduces some kind of noise.
In a previous study using the KWR survey, which is a the predecessor of the WoON
survey and contains less detailed data on the building characteristics and occupant
behaviour than the WoON, we already found that 42% of the variation in energy
consumption could be attributed to building characteristics, the type of dwelling being
by far the most important parameter, followed by the useful living area, the construction
year, the insulation degree, the presence of a thermostat, the number of heated rooms
and the hours of presence home. It was found that 4.2% of the variation on energy
consumption could be attributed to household characteristics and occupant behaviour
However, this study encompassed the whole Dutch building stock and not only the
recent one. Because the recent dwelling stock may be assumed to be more homogenous,
it can be expected that building characteristics will explain less variation and occupant
behaviour more variation. The study was therefore repeated with the WoON survey
with the dwellings built after 1995. In a regression analysis, taking into account only the
significant parameters, 23% of the variation in energy used could be explained by the
building characteristics, the most important parameters being the heat transfer surfaces
and the number of bedrooms.
In the OTB survey detailed data on the dwelling characteristics were gathered through
municipalities and architects, and a statistical regression model showed that the thermal
properties of the dwellings could predict 19 % of the variation in energy used, heat
transfer surfaces and number of bedrooms being again the most important parameters.
The OTB survey was also designed to allow for a better screening of possibly relevant
households characteristics and occupant behaviour and showed indeed that these were
responsible for 11.5% of the variance in energy used for heating.

5 Conclusions
After almost 15 years of EPC regulation in the Netherlands, only three statistical studies
were conducted to assess the effect of the regulation on the actual energy use. The
samples were of limited size. In two of these samples, no statistical correlation was
found between EPC-level and actual energy use per dwelling or per square meter. In the
analysis of the WoON survey, representative for the Netherlands, no correlation was
found between the EI and the actual energy use per dwelling and per square meter.
We found that building characteristics (including heating and ventilation equipment)
were responsible for 19 to 23% of the variation in energy used in the recent building
stock. Household characteristics and occupant behaviour seem to be responsible for 3 to
15% of the total variance. Neither our study nor the studies found in the literature allow
to state that building characteristics, household characteristics and occupant behaviour
altogether are responsible for more than 38% of the variation on energy consumption of
dwellings built after 1995. Therefore at least 62% of the variation in energy use is
unexplained yet.
There are indications from literature that the explanation for this unexplained part could
be related to buildings being realized differently than written in official documents and
to HVAC services running under very different conditions than assumed on paper. A
report by Nieman (2007) showed that in a sample of 154 dwellings, 25% did not meet
the EPC requirements: the EPC was incorrectly calculated; nevertheless the building
permit was issued. In 50% of the dwellings, the realization was not in accordance with
 69

the data used to calculate the EPC. Gommans (2007) monitored for 17 years the energy
performances of energy efficient buildings. 40% of solar boilers appeared to function
poorly. Only 25% of the heat pumps reached the expected efficiency. This was
essentially due to realization faults, lack of control and lack of continuous monitoring.
Another study by Elkhuizen e.a. (2006) in office buildings showed that up to 28%
energy could be saved by better monitoring.
Taking into account the fact that tightening the EPC did not lead to less energy use for
heating and that 62% of the variation in energy use is still unexplained, it seems
legitimate to be careful about a further tightening of the EPC and to search if there are
more efficient means to really decrease the energy consumption of new built. This could
be done by ensuring a correct realization and monitoring of the calculated
performances, putting attention on the knowledge needed by contractors and on an
effective building control process.
In the last 20 years there has been a clear trend in reducing the role of governments and
more freedom for the private sector. This paper has emphasized the need for accurate
building control. This can either be conducted by public authorities, but will more likely
be based on compulsory forms of complete and accurate certificated self-control.

6 CIB Taskgroup 79
Since a few years the attention for building regulatory systems and enforcement
procedures is growing. Various developments in society, politics and the construction
industry have influenced changes in the systems of building control in the last 20 years.
The influence of climate change and the related demands on buildings will have a very
strong impact of further transformations in this field. Therefore CIB has recently
established Task group 97, Building Regulations and Control in the Face Climate
Cange. It will be useful to compare developments of the systems of building control in
countries worldwide. How do the various countries deal with the demand of
deregulation and privatization of enforcement tasks? What are the effectiveness and
efficiency of the systems? Could green promotion incentives be incorporated to improve
the systems? How do the public regulations and enforcement systems contribute to the
basic quality of buildings? Are the current systems suitable to ensure that buildings will
have a very low energy demand and are comfortable, healthy and safe at the same time?
What are the ideas to improve or change the systems? And what will be the impact on
these systems from climate adaptation measures in the longer run?

The proposed task group will make an original contribution to the CIB Sustainable
Construction priority theme. The majority of research on sustainable construction
addresses the development of innovative techniques. However, there is now an
awareness that it is equally important that mechanisms are developed which can
effectively implement the new techniques on a large scale. These will include building
regulations which incorporate appropriate incentives for the promotion of the green
agenda and which therefore stimulate the use of new techniques. Equally, systems of
building control will also be required which are capable of monitoring the effective and
accurate design and construction of the buildings. These and similar issues will be
addressed by the proposed task group.
 70

The proposed task group will work closely with CIB working commissions W113 (Law
& Dispute Resolution) and W108 (Climate Change and the Built Environment) as well
as with CIB task group TG69 (Green Buildings and the Law).

Working programme
In the first phase an international research group will be established, specializing in the
development of systems of building regulations and building control in the face of
climate change. This will be achieved by publicizing the establishment of the task group
through W113 membership and other Working Commissions, BEL-NET, CEBC and
IRCA and other national and international regulation and building process groupings.
Expressions of interest will then be invited from task group members and an appropriate
mix of academics and practitioners from across the world will be selected to form the
working core of the group.
Within 12 months: Initial review of the law and literature across key countries will be
completed. Contributors for a published work will be selected, which will detail and
analyze the systems in a range of countries worldwide and form a basis for comparative
analysis. The exercise leading to this will inevitably be an interdisciplinary one, drawing
upon science, building processes and disparate regulatory disciplines. It is the intention,
not just to examine the body of topic specific literature, but also to review the literature
relating to underpinning theories and principles. The result will be a valuable and
readily accessible resource that can be made available to support future research activity
in building regulations and building control research.
Within 18 months: Contributions for the published work, detailing and analyzing the
situation across various countries will be completed. Editors work on comparative
analysis to accompany these. It is important that detailed analysis of the individual
contributions is undertaken and this will be carried out by the proposers and published
along with the selected outputs.
Within 20 months: Comparative work will be published The ultimate goal of the task
group will be to produce a CIB publication containing a selection of research outputs
authored by prominent building regulatory scholars across the world. This will outline
the state of developments of systems of building regulations and enforcement
procedures in the face of climate change. It is anticipated that important lessons can be
drawn from this work by legislators, actors in the building processes and governments
and that individual nations will be able to learn from the experience of others who are at
different stages in the process of developments.

7 References
Elkhuizen P., Scholten JE., Rooiakkers E., 2006, Quality Control of HVAC services:
evaluation of existing instruments and a vision for the future, in Dutch, TNO
bouw/Halmos report for Senter Novem.
Duijm, F, Hady, M, Ginkel, J van, Bolscher, G.H. ten, 2007, Gezondheid en ventilatie
in woningen in vathorst; onderzoek naar de relatie tussen gezondheidsklachten,
binnenmilieu en woningkenmerken, Amersfoort, GGD Eemland.
Gommans L.J., 2007, Energy performances of energiy efficient buildings, in Dutch,
TVVL magazine, September 2008, pp.18-24
 71

Guerra Santin O., Itard L. & Visscher H. 2009a., Effect of energy performance
regulations on the energy use for space and water heating in residential building in
the Netherlands, submitted to Building Research & Information, November 2009.
Guerra Santin O., Itard L. & Visscher H, 2009b. ‘The Effect of Occupancy and Building
Characteristics on Energy Use for Space and Water Heating in Dutch Residential
Stock’ Energy and Buildings 41 (1223–1232)
Guerra Santin O., Itard L., 2009c. Occupant behaviour in residential buildings in the
Netherlands: Determinants and effects on energy consumption for heating,
submitted to Building Research & Information in November 2009.
Itard L., Meijer A., Guerra Santin O., 2009, Consumentenonderzoek Lenteakkord, in
Dutch, OTB/TU Delft report, Delft.
Heijden, J.J., Visscher H.J., Meijer, F.M., 2007, Problems in enforcing Dutch Building
Regulations, Structural Survey, Special Issue (mid 2007).
Jeeninga H., Uyterlinde M. and Uitzinger J., (2001). Energy Use of Energy Efficient
Residences, in Dutch, Report ECN & IVAM.
Kuindersma, P, Ruiter, CJW, 2007, Onderzoek naar de woonkwaliteit van het
binnenmilieu van nieuwe woningen, Utrecht, Adviesbureau Nieman.
Meijer, F.M., Visscher, H.J., Sheridan, L., 2002, Building Regulations in Europe, part I:
A Comparison of systems of building control in eight European countries, Housing
and Urban Policy Studies 23, Delft (Delft University Press).
Meijer, F.M., Visscher, H.J., 2006, Deregulation and privatisation of European
building-control systems Environment and Planning B: Planning and Design,
Volume 33 – 4, pp. 491–501.
Meijer F and Visscher H (2008), Building regulations from an European perspective, in
Proceedings of COBRA 2008 - The construction and building research conference
of the Royal Institution of Chartered Surveyors, RICS, London.
Nieman, 2007, Final report Housing quality indoor environment in new built dwellings,
in Dutch, report Wu060315aaA4.PK, Vrom inspectie Regio Oost, Arnhem.
Pedro J B, Meijer F and Visscher H (2009), Comparison of tasks and responsibilities in
the building control systems of European Union countries, in Proceedings of
COBRA 2008 - The construction and building research conference of the Royal
Institution of Chartered Surveyors, RICS, London, p. 1339-1355.
PRC Bouwcentrum, 2004, EPC and energy consumption of new built dwellings, Novem
report, Kompas, Utrecht 2004.
Visscher, H.J., Meijer, F.M., 2007, Certification of building control in the Netherlands,
Building Research Journal, volume 55 – 1/2.
Uitzinger J., 2004, Analysis of EPC and energy use in dwellings, in Dutch, IVAM/
SenterNovem report.
WoON Energie, 2009, Woononderzoek Nederland, module energie, VROM.
USP Marketing Consult, 2007, Faalkosten in de bouw.
 72

Managing urbanisation and environmental protection in

Australian cities – approaches for integrating biodiversity
and urban growth in Sydney
Peter Williams1
1
Faculty of the Built Environment,
The University of New South Wales,
Sydney, NSW, 2052,
Australia

Email: [email protected]

Abstract:
This paper examines the approaches taken to incorporate biodiversity conservation in
the management of urban growth in Sydney and more broadly in New South Wales,
Australia’s most populous state. Problems associated with managing Sydney’s growth –
particularly from the intersection of dealing with perceived property rights and the
protection of natural resources such as biodiversity – are identified. The issues are
illustrated through significant State Government development decisions relating to the
retention of biodiversity in the new growth areas of Sydney. The singular reliance on
traditional ‘command and control’ regulatory approaches as both a cause and ineffectual
solution to the problems faced in biodiversity conservation is highlighted. Newer
‘market based’ mechanisms which are being introduced (e.g. biobanking) or should be
adopted (e.g. transferable development rights), as well as management at the strategic
level (e.g. biodiversity certification), are considered. This paper argues that to better
integrate biodiversity conservation in Australian cities a mixed approach be adopted in
which a number of tools are utilised – and that this needs to occur in the context of a
sound overarching strategic planning framework. This constitutes a hybrid approach
involving a ‘fixed’ strategic spatial plan informing statutory-based regulation primarily
through zoning and other development controls, augmented by a range of market based
tools implemented through statute and common law measures such as conservation
covenants.

Keywords:
Biodiversity, planning tools, property rights, Sydney’s Growth Centres, urban growth
management.

1 Introduction
As a country with a federal system of government, jurisdictional responsibility in
Australia for planning, environmental protection and land management issues generally
resides with its constituent states and territories (Farrier and Stein, 2006, p.12).
 73

Australian states and territories have relied primarily on a regulatory-based statutory

planning framework, derived from the traditional British system, to implement planning
and land use policy. Australian planning systems are statutory-based in that they are
prescribed by various state and territory legislation, including a dominant planning act
(in New South Wales the Environmental Planning and Assessment Act 1979). Such
statutes in turn impose a series of controls or regulation through a system of land use
zoning, development standards, building regulations, subdivision controls, heritage
provisions etc. The dominant source of government planning regulatory power is thus
statutory law in the form of overriding planning legislation and subsequent delegated or
subordinate legislation such as planning instruments, ordinances and regulations. In
addition case law – especially in the form of judicial interpretation of relevant
legislation and judicial review of planning decisions – also plays a key role, given
Australia’s legal tradition as a common law country.

Although the statutory and regulatory emphases remain in Australia – particularly in the
form of land use zoning – more recently planning approaches influenced by United
States systems of financial and planning incentives have emerged to complement this
traditional ‘command and control’ regulation hegemony. Part of a self-styled ‘smart
regulation’ package, these seek to give Australian planning systems greater flexibility
through the use of market-based mechanisms and financial incentives. These tools
include planning bonuses, green offsets, and the acquisition of development ‘rights’
pertaining to realty. Often these also involve the utilization of traditional common law
mechanisms such as covenants and easements. One sphere of application of this hybrid
mix of planning approaches and tools is the protection of biodiversity and other natural
resource values in areas subject to urbanization.

Problems associated with managing the urban growth of Sydney – particularly from the
intersection of dealing with perceived property rights and the protection of natural
resources such as biodiversity – are identified in this paper. The singular reliance on
traditional ‘command and control’ regulatory approaches as both a cause and ineffectual
solution to the problems faced in biodiversity conservation is highlighted and the
broader issues are illustrated through several significant case studies.

Expanding this theme, the paper examines the approaches taken to incorporate
biodiversity conservation in the management of urban growth in Sydney and more
broadly in New South Wales (NSW), Australia’s most populous state. These approaches
include better informed strategic planning for the identification of areas of high
biodiversity value, the implementation of protection mechanisms through statutory and
regulatory means, green belts and urban growth boundaries, land acquisition,
transferable development rights, green offsets in the specific form of biobanking, and at
a strategic level biodiversity certification.

A critique of the role of these approaches as applied to the integration of biodiversity

and urban growth management within the framework of the NSW planning system and
the context of entrenched perceived property rights is presented in this paper. Market-
based approaches which seek to work with property rights and the property market –
transferable development rights, biobanking and biodiversity certification – in addition
to ‘fixed’ strategic plans informing traditional regulatory mechanisms such as zoning
 74

and other development controls, augmented by common law tools such as covenants
and easements, are seen as pivotal and are advocated in this paper.

2 Context – City of Cities and Sydney’s Growth Centres Formatting

of Main Headings
The context of this analysis of the need for the utilization of an appropriate suite of tools
to better integrate biodiversity conservation with continuing urbanization is the current
metropolitan strategy for Sydney, City of Cities – A Plan for Sydney’s Future, released
in December 2005 (DoP, 2005a). City of Cities, is “probably the most comprehensive
planning strategy that Sydney has had since its first strategy” in 1951 (Searle, 2006,
p.553). However, it was arguably developer-led, being devised in response to heavy
lobbying by the property industry, particularly the Property Council of Australia, for a
new strategy (PCA, 2004). It certainly bears the hallmarks of a blueprint to satiate
developer desire for the further – and possibly the complete – urbanization of the
Sydney basin, with the developer vision “writ large across the City of Cities strategy and
its supporting documents” (Searle, 2006, p.533). All major Australian cities have
released metropolitan strategic plans in recent years, and so the challenges examined in
this paper are not unique to Sydney, and its findings have implications beyond Sydney.

The City of Cities strategy is intended as the plan for Sydney over the 25 years between
2006 and 2031. During this time the city’s population is forecast to increase by 1.1
million people, from 4.2 million to 5.3 million. To accommodate this predicted
population growth and an anticipated fall in average household size, it is estimated that
640,000 new homes will be required. This target translates to 445,000 new dwellings
projected for the existing areas of Sydney, consistent with an ongoing policy of urban
consolidation, and 195,000 in greenfield areas, 135,000 of which were to be located in
the North West (NW) and South West (SW) Growth Centres (that is, two new urban
release areas), and 60,000 in other greenfield areas (DoP, 2005a). An additional 25,000
dwellings were originally projected to be built in the Growth Centres between 2032 and
2041, giving a total dwelling capacity in the Growth Centres of 160,000 dwellings; this
was subsequently adjusted to 181,000 dwellings following the abandonment of
proposed ‘green zones’ by the State Government in 2006 (further discussed below).

A pertinent action of the Metropolitan Strategy in relation to housing is the application

of sustainability criteria for new urban development (Action C1.2). Here, proposed land
release areas are to be assessed against sustainability criteria and infrastructure funding.
As a precursor, a general qualitative assessment of all land identified for release within
the Growth Centres was provided by the then NSW Sustainability Commissioner,
Professor Peter Newman in November 2004 (Newman, 2004). This assessment was
based on eight sustainability criteria, with a ranking assigned to each criteria ranging
from ‘Poor’, ‘OK’, ‘Good to Best’, depending on how well the Sustainability
Commissioner believed that the criteria “have been addressed in terms of global best
practice for land development and also in terms of accepted practice in Sydney”
(Newman, 2004, p.1).

Criteria 2: Environmental Protection, aims “to protect and enhance biodiversity, air,
water and agricultural land.” Within this criterion the biodiversity benchmark is to
 75

“save core biodiversity values and enhance natural ecosystem of the bioregion”; for
water quality it is to ‘maintain and improve waterway health”; and for agricultural land
to “ensure important agricultural land is conserved.” For new land release areas this
criterion rates as “‘good’ to ‘best’ practice as one of the major features of the area is the
new ways that the environment will be protected however air and water quality limits
are approaching so any development has to be very clean” (Newman, 2004, p.4).

Despite the positive ratings of the sustainability criteria of natural resources and
environmental protection, two points are of concern. First, in his report the
Sustainability Commissioner “raises the question of whether the Land Release areas are
needed at all. Is it possible to somehow stop Sydney growing or at least prevent any
further fringe growth?” (Newman, 2004, p.4). Second, it appears that additional urban
development outside the identified Growth Centres may be approved if it meets the
eight sustainability criteria, (Searle, 2006, p.556), which would undermine the reason
for the Growth Centres in terms of the objectives of the sustainability criteria such as
minimizing Sydney’s ecological footprint and to protect and enhance biodiversity, water
and agricultural land. Evidence of developer pressure for further land releases outside
the designated Growth Centres release areas includes recent preliminary investigations
by the Department of Planning into new releases, such as Macarthur South (Keneally,
2009), and Badgerys Creek (DoP, 2009). This is a significant development and places
heavy pressure to extend the apparently inexorable growth of Sydney.

3 Policy failure, the demise of Sydney’s green zones and smart

regulation
From the perspective of protection of areas of biodiversity value in and around
Sydney’s growth centres, the current Metropolitan Strategy and the tools drafted into its
implementation arguably represent a dramatic example of policy failure in the face of
perceived property rights. Failure of measured strategic spatial planning, and in its
stead the formulation of ad hoc, reactionary ‘policy on the run’, was evident in the
response by the NSW Government to the politics of property rights exerted by land
owners and developers in the Growth Centres.

On 3 November 2005, a media release issued by the office of the New South Wales
Minister for Planning, the Hon Frank Sartor MP announced the scrapping of two
proposed ‘green zones’ in the NW and SW urban growth centres (Sartor, 2005). This
‘green overlay’, designed to preserve existing non-urban land for aesthetic, biodiversity
conservation, recreation and agricultural purposes, covered 8,400 hectares in the land
release areas, and a further 14,000 hectares outside the growth centres boundary. The
decision to abandon these green zones or areas – formally described as Landscape and
Rural Lifestyle Zone (LRLZ) under the Sydney metropolitan strategy – was taken,
stated the media release, “following widespread public consultation”. Reasons given
for the decision were basically two-fold. First, the Department of Planning had received
more than 3,000 submissions on the Growth Centres plans over a four-month exhibition
period. It was clear, stated the Minister, that “the proposed LRLZ caused widespread
concern and confusion, with nine in ten written submissions objecting to the new zone,
which affected more than 7,000 properties” (Sartor, 2005). Many landowners
complained about a perceived loss of property values and development rights (DoP,
 76

2005c). Second, it was argued that the environmental benefits of the proposed green
zones were limited, because 45% of the land identified for the LRLZ zone had already
been cleared (Sartor, 2005).

Putting aside the issue of the poor quality of Departmental mapping and lack of
‘ground-truthing’ resulting in the misidentification of appropriate quality green space,
the clear message was that public objection to the green zones was the primary reason
for their demise, as both cleared and uncleared green areas were abandoned. This
public objection rested on the expectation (whether reasonable or otherwise) that
landowners’ land – whose current zoning was not residential – in and around the NW
and SW Growth Centres would be urbanised, with the windfall gain accruing to the
property owners that this land use conversion process entails. As described in the news
media at the time, the ‘dumping’ of the green zone on Sydney’s fringe occurred after “a
backlash from landowners angry their properties would not be considered for housing
subdivisions” (Goodsir, 2005a, p.3), with fears that “land values in some areas will
plummet as a result…” (Goodsir, 2005b, p.9).

One clear message from this episode is the role played by property rights and
concomitant development expectations or rights in opposing – and ultimately
determining – public policy designed to protect the environmental and natural resource
values of the south-west and north-west fringe of Sydney. This role was admitted by
the Minister in an earlier media release (9 September 2005) when he announced a
review of the LRLZ and stated that “the green zones were never intended to change
people’s existing land use rights” (DoP, 2005b). It should be pointed out however, that
the green zone landowners were expecting more than their existing use rights. Rather,
they wanted a right to develop or use their land in way that they were not presently
entitled, that is, for residential purposes. This has two significant implications. First,
this right that was perceived to pertain to non-urban land does not exist even in land
already zoned residential, since development consent is first required before residential
subdivision and development can proceed. Second, landowner insistence on, and State
Government accedence to, such rights, can only lead to speculation in areas in and
around the growth areas not zoned residential, which has indeed since occurred
(Keneally, 2009). Recognition of these implications was acknowledged in the Sydney
Morning Herald the next day when it reported:

Developers and groups representing thousands of aggrieved landholders

yesterday applauded the State Government’s decision to walk away from a green
zoning proposal that had denied property owners the right to cash in on future
housing estates.
(Goodsir, 2005c, p.11)

A further aspect of the State Government’s decision in regard to the abandoned green
zones was the announcement that it would attempt to retain some environmental
aspirations by focusing on protecting the best sections of vegetation and waterways in
the two Growth Centres. This new approach, developed in consultation with the (then)
Department of Environment and Conservation, created four new zones into which land
was classified: flood-prone, urban-capable, urban edge and conservation (Sartor, 2005).
Significantly, this approach focuses on biodiversity certification and relies on a new
 77

environmental offsets or biobanking scheme, under which developer payments are used
to conserve areas of bushland, further discussed below.

Planning implementation of the growth centres component of the Sydney metropolitan

strategy was deferred to the making of a specific statutory plan in the form of a state
environmental planning policy (SEPP), which finalised the release area boundaries and
the constituent land zones and controls. Work on a draft of this SEPP progressed
throughout 2005, and major changes were made to its envisaged land use zones
following the State Government’s decision to abandon the proposed green zones. A
‘final’ version of the draft SEPP – minus the now moribund green zones – was released
in January 2006 for public exhibition and comment. Subsequently, on 28 July 2006 the
Minister for Planning gazetted State Environmental Planning Policy (Sydney Region
Growth Centres) 2006. Yet the SEPP as gazetted was modified from that placed on
public exhibition, following 750 submissions from members of the public, industry and
State Government agencies (DoP, 2006a).

Opinions on the nature of the modifications to the SEPP greatly diverged. On the one
hand an update on the Sydney metropolitan strategy issued by the Department of
Planning was emblazoned with the heading ‘More Green Spaces for Western Sydney’
(DoP, 2006b), whilst on the other the Sydney Morning Herald more pessimistically –
and accurately – reported that ‘Housing eats our next park’ (Davies, 2006). These two
contrasting views are discussed in turn below.

The increase in green infrastructure in Western Sydney announced by the Minister

involved the rezoning under the SEPP of a long-standing undeveloped 560 ha parcel of
land owned by Airservices Australia, a Commonwealth Government agency. Located
at Shane’s Park, in Sydney’s north-west, the land is the site of a former international
radio transmission station and about 80% was already listed on the Commonwealth’s
Register of the National Estate. However the site was to be merely rezoned by the State
Government from one open space designation to another. Conversely, the SEPP also
sought to reduce by over one-half, the amount of land proposed for the Rouse Hill
Regional Park. The park, which surrounds Rouse Hill House, one of Sydney’s earliest
properties, had been planned since 1989 and a further commitment to create the 115-
hectare park was given in 1997. In a decision that “outraged heritage experts, local
councils and even the Government’s own advisers on its metropolitan strategy”, the
State Government decided not to acquire Stage 2 of the park, with the Planning Minister
arguing that the $120 million to be paid for the 81-hectare site “was too much to pay for
views” (Davies, 2006). Instead, the land was designated under the SEPP to be released
for housing. Public opposition to this proposal was so intense however that the Minister
quickly reversed his decision, announcing the entire area of the park would be protected
by restoring its earlier open space zoning (DoP, 2006d).

Since the publication of City of Cities further potential for undermining of this plan has
been evident in the form of developer pressure for land to be released for urban
development outside the designated growth centres. In particular, one major
development company with extensive land holdings in the Macarthur South/Appin area
south of Sydney has actively lobbied the NSW State Government for this land to be
added to Sydney’s release areas (Frew and Snow, 2008). This is part of an area
 78

investigated for urbanisation under the 1988 Sydney metropolitan strategy Sydney Into
Its Third Century (DEP, 1988) but subsequently deferred due to water and air pollution
problems (DoP, 1993; Holliday, 1998; Vipond, 2001). Clearly, such a release would
also undermine a fundamental component of City of Cities of limiting Sydney’s urban
expansion to 2031 to the designated growth centres and hasten the urbanisation of the
Sydney basin. Following initial consideration, the Government recently announced the
deferral of further investigation of Macarthur South as its development is presently
unviable due to prohibitive infrastructure costs (Keneally, 2009). It should be pointed
out that similar challenges are facing other Australian cities. For example, the recent
and controversial expansion of Melbourne’s urban growth boundary into its ‘green
wedge’ areas (Buxton and Goodman, 2002; Buxton and Scheurer, 2007), has strong
parallels with the Sydney situation.

This brief vignette reveals a number of key factors that must be taken into consideration
in contemporary growth management on the rural-urban fringe of Australian cities and
towns. First is the deficiency, on their own, of traditional command and control
mechanisms such as land use zoning and planning restrictions to guarantee the
protection of non-urban land. Second is the apparent inevitability of continued urban
sprawl unless appropriate growth management policy responses can be crafted and
implemented to counter this apparent biodiversity-damaging form of urbanisation.
Third is the role – rightly or wrongly – that claims to property rights play in land use
planning and development decisions. Fourth is the reluctance of government to rely,
otherwise than de minimus, on the public purse to protect non-urban land (for example,
through land acquisition for the provision of green infrastructure). The fifth factor –
argued here to be an inevitable conclusion given the previous four considerations – is
the role that newer alternative mechanisms such as smart regulation and market-based
instruments that operate within the context of property rights can play, particularly in
the context of seeking to ensure that natural resource and environmental values are
protected in the face of the pressure and expectations of continued urban expansion. It
is in the context of these factors that some complementary mechanisms for planning
policy implementation – specifically the integration of biodiversity conservation into
managing the growth of Australian cities – are now considered with Sydney as a case
study.

4 Transferable development rights

The concept of property rights is integral to schemes such as transferable development
rights (TDR). TDR is described as a property rights-based tool since it recognizes, and
seeks to work with, a development right which is perceived as one of a number of rights
accruing from ownership or other interest in property (Wiggins, 1988). Fundamental
differences however, can be identified in the practical application and consequences of
the concept of property rights. Specifically property rights-based tools have, depending
on the approach taken, been ascribed as constituting an example of a market-based or
economic instrument, or alternatively a manifestation of free market environmentalism
(Gunningham and Grabosky, 1998).

Yet in essence, TDR is one type of planning tool that seeks to compensate landowners
whose development rights have been restricted by regulation. Compensation is
 79

achieved by allocating to those owners an amount of development that may be

transferred from the restricted site to another site (Bindon, 1992). Fundamentally,
development rights are severed from a parcel designated for protection (‘sending area’),
and the severed rights are transferred to a parcel in an area where additional
development is permitted (‘receiving area’) (Johnston and Madison, 1997, p.365). The
scheme thus allows more development on the receiving parcel while reducing or
preventing development on the donor parcel. Under such a program, the development
rights of the sending parcel may be either sold by that owner to the owner of the
recipient parcel, or transferred directly from the donor to the receiving site if they are
under common ownership. The number of development rights that can be transferred
depends on how many development-rights ‘credits’ a planning authority allocates and
how much it allows in areas designated for growth (Daniels, 1999, p.224).

Within the modern system of formalised land tenure the bundle of rights that constitute
land ownership are often consolidated in the hands of a single ‘owner’. By allowing
voluntary acquisition and conveyance of specific rights for specific uses, trading in
partial interests offer this more flexible and refined alternative to a strictly regulatory
approach or acquiring full ownership rights (Wiebe and Meinzen-Dick, 1998).
Development rights have been viewed as one of a number of rights embodied in the
ownership interest in property. These development rights have been classified as a real
property interest, which entitles the owner of a fee simple interest to deal with the land
as the owner wishes, subject only to government regulation, principally through zoning
(Arnold, 1992). However, the right to transfer development rights is not ordinarily part
of the bundle of rights that comes with land ownership: because in Australia at least
there is no right to develop land except within the terms of planning instruments.
Government must therefore enact specific legislation to legalise the sending of a
building right from one parcel to another (Daniels and Bowers, 1997). Once
legislatively sanctioned, an owner may separate and transfer one of the rights incidental
to ownership whilst retaining the other rights (Arnold, 1992). In the US the acquisition
and conveyance of partial interests to land has proven to be a popular, flexible and
effective tool for land use and conservation policy.

TDR has several attractions to commend it – which revolve around its ‘respect’ for
property rights. TDR is a (hybrid) market based mechanism under which developers
pay for preservation in return for additional development potential. Where a TDR
scheme is in place, a developer buys development rights, with zoning provisions
identifying the number of additional units allowed in designated receiving areas. TDR
is therefore effective when the TDR option is more profitable than the non-TDR option
for landowners and developers. The motivation for utilizing this scheme is the ability to
sell and transfer development rights – thereby increasing residential densities in targeted
sites – and yet retain land and appropriate uses in receiving areas. Schemes such as the
purchase or transfer of these interests or rights have allowed public agencies and private
non-profit conservation groups to influence the use of public and private land without
incurring the political costs of land regulation or the full financial costs of outright land
acquisition (Wiebe and Meinzen-Dick, 1998). It is a voluntary approach to influencing
land use, by offering landowners and farmers financial incentives for environmental
conservation, restoration, and preservation.
 80

In Australia there is no such inherent right to develop land; rather a property owner may
have the right to seek development consent, after the granting of which, development
for the specific purpose approved can legally commence before the consent lapses after
a prescribed period. Nevertheless, in practice the Australian experience is that a
landowner may have certain development expectations based on the applicable statutory
planning controls. Implicit in the controls is a perceived probability of gaining approval
for a certain type and quantity of development (Bindon, 1992). As a consequence, the
fundamental principles behind the US model has been recognised and adopted by
several local councils in Australia that have established TDR systems (Williams, 2004).
These include heritage conservation in Sydney, Adelaide, Melbourne and Brisbane
(Ryan, 2004), protection of the Mount Lofty Ranges near Adelaide, provision of open
space and conservation reserves in Gosford (NSW), urban growth management in
Wellington (NSW) and protection of the Illawarra Escarpment near Wollongong, south
of Sydney (Williams, 2004).

Yet the apparent reluctance for more widespread use of TDR as a planning tool remains.
This is despite TDR being identified as a tool worthy of consideration, for example, in
the NSW Plan First planning system reforms a decade ago (DUAP, 2001). Three
reasons can be advanced to explain this situation. First, the utilization of market based
tools is still relatively recent in Australia. There has been a tradition of reliance on
‘command and control’ regulation in Australia, which is quite different to the history of
market based tools in the US and bargaining for planning gain/negotiated planning
agreements in Britain. Second, there is a lack of understanding of the TDR mechanism
by planning decision-makers (both politicians and planners). Third, there is ongoing
legal uncertainty and impediments surrounding TDR. Evidence of the present legal
impediments to the more widespread adoption of a TDR scheme in NSW include
expression of doubt by the NSW Land Environment Court about the legality of TDR
schemes (see for example Leighton Properties Pty Limited v North Sydney Council
[1998] NSWLEC 39), concerns raised by a Commission of Inquiry regarding the
transparency of Wollongong City Council’s TDR scheme for the Illawarra Escarpment
(Commission of Inquiry, 1999), and ongoing reluctance by the NSW Parliamentary
Counsels Office to support draft statutory plans produced by local councils that seek to
include TDR provisions.

5 Biodiversity certification and biobanking

Biodiversity certification and biobanking are two relatively new planning tools in NSW.
Biodiversity certification was introduced with the passage of the Threatened Species
Legislation Amendment Act 2004 (NSW). It is designed to integrate threatened species
management into the strategic planning stage through the auspices of the formulation of
environmental planning instruments (EPIs), rather than being mired within the ‘trench
warfare’ of assessment under the development application process. Under this scheme,
environmental biodiversity studies are required to be prepared up front, and planning
options for development and conservation methods identified and evaluated. A draft
EPI is then prepared and forwarded to the Minister for Climate Change and the
Environment who then decides whether to grant biodiversity certification. The outcome
of the process is that a developer does not need to prepare a species impact statement,
and biodiversity does not comprise part of the environmental assessment of the
 81

proposed development. Significantly, the first EPI to receive biodiversity certification in

NSW was State Environmental Planning Policy (Sydney Region Growth Centres) 2006
which contains the main statutory planning controls for Sydney’s Growth Centres.

Biobanking is an example of an offsets scheme. Under an offset arrangement, industries

or resource users are given the choice of either offsetting the damage they cause or
paying an authority to do it on their behalf. The provision of an offset is a mandatory
requirement or condition of the granting of approval to undertake development with
potentially adverse environmental impacts. The arrangements operate partly through
regulatory mechanisms such as permits or approvals, and partly through a market-based
system, which allows one property owner who undertakes some form of environmental
restoration to sell offset credits to another owner or industry seeking approval to
undertake development. Thus an offset arrangement is clearly a hybrid of regulatory and
market-based instruments.

The NSW Biodiversity Banking and Offset Scheme was introduced under the Threatened
Species Conservation Amendment (Biodiversity Banking) Act 2006 (NSW). The
scheme seeks to provide an additional, market-based, mechanism to assist in
conservation management. It aims to achieve more predictable development and
conservation outcomes by guiding development to appropriate places, and to promote
private land conservation through income generating opportunities for landowners who
provide biobank sites. Landowners create credits by establishing biobank sites and earn
income from managing land for conservation. The scheme aims to be comprehensive –
the biobanking provisions include requirements for biobanking statements, creation of
biodiversity credits (calculated using published assessment methodology), detailed
regulations (including cost recovery), establishment of a BioBanking Trust Fund,
BioBanking public registers and enforcement provisions (DECC, 2007).

The NSW BioBanking and Offsets Scheme seeks to address the loss of biodiversity by
enabling landowners to establish biobank sites to secure conservation outcomes and
offset impacts on biodiversity caused by development. Conceptually, this is achieved
through the use of an ‘improve or maintain’ test for biodiversity values, which means
avoiding significant biodiversity conservation areas and offsetting impacts in other areas
(DECC, 2007, p.4). The offsets are measured in terms of credits, using the published
BioBanking Assessment Methodology (DECC, 2009), and developers participating in
the scheme are required to meet this improve or maintain test based on the impact of
their proposed project.

The BioBanking Scheme has four key components (DECC, 2009b):

1. Establishing biobank sites on land through biobanking agreements between the

Minister for Climate Change and the Environment and participating landowners.
A biobanking agreement is similar to a covenant and is attached to the land title.
It runs with the land, and generally will have effect in perpetuity so as to offset
the impacts of development on biodiversity values.

2. Creating biodiversity credits for management actions that are carried out, or
proposed to be carried out, to improve or maintain biodiversity values on
 82

biobank sites. The biobanking assessment methodology is the tool used to

determine the number of biodiversity credits that may be created for these
management actions.

3. The trading of credits, once they are created and registered.

4. Enabling the credits to be used to offset the impact of development on

biodiversity values. The assessment methodology is the tool that is used to
determine the number and class of credits that must be retired to offset the
impact of a development and ensure that the development improves or maintains
biodiversity values.

BioBanking in NSW is still in its infancy – indeed at the time of writing no biobanking
agreements had been listed publicly (DECCW, 2010a) although several have been
shortlisted as either biobank sites, development sites or joint biobank/development sites
– and biodiversity certification has presently not extended beyond the Sydney Growth
Centres (DECCW, 2010b). Nonetheless, some observations may be made in relation to
both these biodiversity conservation tools. Both approaches require an ‘improve or
maintain’ outcome for biodiversity values, which is difficult – if not impossible – to
achieve given the high conservation value of the remaining biodiversity and ecological
communities in the Sydney Region. Disagreement exists in relation to the identification
of appropriate offset ratios – i.e. the ratio of conservation land to offset developed land
– with this generally well in excess of a simple 1:1 ratio. Problems have also arisen
with using biobanking and biodiversity certification to justify the loss of areas of high
biodiversity – something which DECC seeks to avoid and the Land and Environment
Court has had to adjudicate in the case of specific residential developments in Sydney
(see for example Sanctuary Investments Pty Ltd & Ors v Baulkham Hills Shire Council
[2006] NSWLEC 733). Concerns have also been expressed by some local councils in
the Sydney Region about the location of biodiversity offsets. Such councils have
argued that the offset sites should be located in the same local government area that the
development is occurring, whereas some State Government agencies believe that the
funds generated under the BioBanking Scheme could be better used to conserve larger
areas of land outside the Sydney Region, where land acquisition costs are cheaper.
Further, problems have arisen in situations where developers have sought to offset the
loss native vegetation on development sites with biobank sites containing ecological
communities of inferior conservation status, contrary to the principles of the BioBank
Scheme (DECC, 2009c).
Finally, the attraction of offering biodiversity offsets – generally as individual land
dedication agreements outside the formal Biobank Scheme – has been used as a
bargaining chip by developers to persuade State Government to give favourable
consideration to unscheduled urban releases, particularly in the Lower Hunter region of
NSW (Creagh and Munro, 2007). One such land dedication agreement which attracted
significant media attention involved the brokering of the agreement, and subsequent
granting of planning approvals, by a former Minister for Planning for proposed
residential developments at Catherine Hill Bay and Gwandalan in the Lower Hunter
Valley, situated to the north of Sydney. The Ministerial approvals were subsequently
quashed by the Land and Environment Court on the grounds of apprehended bias and
reliance on irrelevant considerations (Gwandalan Summerland Point Action Group Inc v
 83

Minister for Planning [2009] NSWLEC 140). Pertinently also, the invalidated
approvals relied on land dedication agreements that were outside the framework of the
Government’s own BioBanking and Offsets Scheme and were inconsistent with the
Department of Planning’s strategic spatial plan for the region, the Draft Lower Hunter
Regional Strategy (Williams, 2009).

6 Conclusion
Faced with the rising influence of the property rights movement (along with the
contemporary problem of ‘down-zoning’ land as witnessed in the proposed green zones
in the Sydney Growth Centres), the challenge to land use managers and planners has
been to devise planning mechanisms which respect the integrity of private property on
the one hand, and yet still achieve planning policy objectives on the other. It is in this
context that more creative mechanisms such as TDR and biodiversity certification and
biobanking need to be considered as urban growth management tools. In the case of
TDR the issue of the lack of understanding of this mechanism by decision-makers
(including planners) and the present legal uncertainty surrounding its application need
to be resolved – the latter by legislative action. In the case of biodiversity certification
and biobanking the main issue relates to the untended consequences of these tools. This
includes their use to gain approval for inappropriate development in terms of
undermining both the promotion of orderly land releases and the protection of areas of
high biodiversity value within the Sydney Region.

Part of the reason for these problems lie in the fact that market based tools are still very
much in their infancy in the NSW planning system. To better integrate biodiversity
conservation with managing the growth of Sydney, a hybrid framework which utilizes
sound metropolitan planning, strategic or planning phase biodiversity certification,
statutory-based regulation such as zoning, and market-based mechanisms including
TDR and biobanking reinforced by conservation covenants or agreements, should be
adopted.

7 References
Arnold, C. (1992) Transferable Development Rights – A Planning Tool for the
Preservation of Heritage Buildings. Environmental and Planning Law Journal,
9(6), pp 458-474.
Bindon, J. (1992) Transferable development rights: A review. Australian Planner 30(3),
pp 136-141.
Buxton, M. and Goodman, R. (2002) Maintaining Melbourne’s Green Wedges.
Planning policy and the future of Melbourne’s green belt. School of Social Science
and Planning, RMIT University, December 2002.
Buxton, M. and Scheurer, J. (2007) Density and Outer Urban Development in
Melbourne. Urban Policy and Research 25(1), pp 91-111.
Commission of Inquiry. (1999) The Long Term Planning and Management of the
Illawarra Escarpment, Wollongong Local Government Area. Office of the
Commissioners of Inquiry for Environment and Planning, Sydney.
Creagh, S. and Munro, C. (2007) Sartor overrides conservation advice. Sydney Morning
Herald, 19 March 2007, p.8.
 84

Daniels, T. (1999) When City and Country Collide: Managing Growth in the
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 87

Sustainable development and legal ownership in Danish

urban planning law
Helle Ina Elmer, Ph.D.1
1
Agency for Spatial and Environmental Planing,
Ministry of the Environment, Denmark

Email: [email protected]

Abstract:
Sustainability is as a concept incorporat ed in Danish p lanning law . The theo ries
concerning susta inability as an environm ental conc ept pr esupposes tha t the
incorporation of the con cept in Danish planning law will cau se a change in th e concept
of ownership in Danish planning law. The correctness of this bold statement depends on
how the two involved concepts ar e perceived. In this paper th e basis of the two concept
in the Danish jurisprudence are analyzed and the legal consequences are drawn.

Keywords:
Danish Planning Law, Ownership, Sustainable Development.

1 Introduction
Both the concept of sustainable development and the concept of ownership is in Danish
jurisprudence contested concepts and when sustainable development is said to have an
impact on the way the property owner is exercising his or hers rights of ownership
(Tuomela 1995; Basse 1995; Pagh 1998), then it challenges the conceptual legal system.
The question of what influences what and how – if at all – hasn’t yet been analysed.

For this paper, I have chosen to focus on the Danish Planning Act and only the part of
spatial planning concerned with urban planning. The Danish Planning Act1 states the
national planning authority of the Minister of Environment, regional spatial
development planning, municipal planning, municipal local planning, zoning and rural
land management, supervision and administrative provisions, and appeals and legal
proceedings. The choice of perspective is motivated by the fact that the Planning Act is
low rated, when it comes to looking at sustainable development and high rated, when it
comes to the legal impact on ownership.2

1
Act no. 388 of 6 June 1991 cf. consolidated Act no. 937 of 24 September 2009. Throughout the paper the
abbreviation Planning Act will refer to this consolidated Act unless otherwise stated. The Danish – and other
Scandinavian countries´ – legal systems are in classic comparative law-approach characterized as a mixed legal
system: Denmark has a constitution and an extensive amount of legislation but some areas of daily legal life are left
unregulated such as the basic conception(s) of ownership. The Scandinavian countries did not follow the
Codification-movement in Europe, and that is why Danish law is not bound by certain principles to the extent shown
by the German, French, Dutch, Austrian and Swiss Civil Codes. Please note that by Danish law compulsory
acquisition is subject to full compensation.
2
Please note that this paper only states my personal opinion.
 88

2 Ownership in Denmark
2.1 Ownership in Danish Jurisprudence
In Danish jurisprudential account of ownership 3 is defined as an exclusive negative
bounded possession that is a posse ssion in every respect, whic h is not limited by law or
private act of will. Som e scholars describe the possibility of dividing the powers of the
owner subject as a flexible feature of ownership, by which they refer to that a temporary
reduction in the owner's power over the object etc. returns to the owner after completion
of absences i.e. letting a flat or p ledging an asset. The emphasis on ownership elasticity
may see m s uperfluous if it is used only in conjunction with a tem porary absence of
certain powers. However, as a principle of keeping the rights ownership together – for
whatever reason - elasticity is attributed an independent status in the following historical
explanation and conceptual clar ification. At the sam e ti me the patient reader will be
introduced to the basic ideas behind the property in planning terms.

Until late 18th century Danish law like many other legal systems is based on natural law
(Nørregaard 1784). There were also drawn a distinction between the king’s overall
ownership and the ownership of his or he rs loyal subjects. Ownership was not only
ascribed to physical persons but also to trust and foundations, whereby large sum s of
money were placed und er ‘th e dead hand’. In early 19th ce ntury the ex clusiveness of
ownership was questio ned probably for m any reasons but also becaus e it quite a few
trust and foundations had lost their purpose, which they w ere aimed to support. So, the
king and later the governm ent would have the right to dissolve su ch futile trust and
foundations (Ørsted 1815). During the 18th centu ry a shift in the legal structure of
ownership occurs, so n atural law in the cl assical sense is rep laced by a p hilosophically
justified conceptual stru cture. Even the ki ng lost the exclusive ownership and the state
got sovereignty instead. In addition, m ost descriptions of ownership use Rom an law
terminology and conceptual design (Aages en 1881; Björne 1995; Björne 1998; Tamm
& Vogt 2009).

Ownership was viewed as a unified concept bu t at what poin t in ti me does this unified
right transfer from say a se ller to a buyer? T his questio n led to several interesting
constructions of im plicit and tacit nature (Tam m 1976; Björ ne 2002), but one scholar,
Carl Torp, went the opposite direction, sugges ting that ownership consisted of relations,
and som e relations m ay transfer at one poin t, others at another point in tim e (Torp
1892). It all depends on the legal nature of transfer and to what has been agreed upon by
the persons involved. With the fragmentation of concept ownership there was no longer
any affiliation of rights, so how was it possi ble to uphold the concept of ownership in a
legal sense? Two prom inent figures in Dani sh jurisprudence, Frederik Vinding Kruse
and Alf Ross, disputed about this for almost thirty years (Björne 2007).

Frederik Vinding Kruse, an em piricist, based his theory on a very broad definition of
ownership/property. He m aintained that four co re rights have to be present in order to
accept the presence of ownership: 1) the inwardly command and use of an object, 2) the
outwardly rights of subrogation, 3) the right of posting the object as collateral, and 4)

3
Hohfeld has shown that a right of ownership may be subdivided into different legal modalities. However, there are
diverse notions of rights and ownership, so a common approach of rights is required. The term ‘right’ is then the
generic term used in this paper.
 89

the right of bequeath. Lim ited rights may also be categorized as ownership, when eithe r
one of the following combinations are used: (1,3,4), (1,2,4), (1,2,3) but not (1,4). It is
not quite clear, what the substa nce of 1) is, but 2)-4) were also used in th e 19th century
description of ownership (Vinding Kruse 1929, 143ff). Being an em piricist Vinding
Kruse did not intend to describe ownership as s substantial right by th e four core rights.
Rather, he wanted to provide a qualitative ba sed criterion for the presence of ownership
(in case of transfer), and thus, his concept of ownership m ay be described as being an
inherently qualitative structure.

Alf Ross, positivist, understands in his early writings ownership as functionalistic, which
makes hi m of largely the sam e kind as Carl Torp, the early spokesm an for a relative
ownership. Ross finds that the presence of ownership is solely based on a quantified
structure: If the owner has tr ansferred all but one right, then the ow ner is no longer the
owner no matter what sort of right he would have left to himself.

Later on in his career – in the early 1950’s – where the enthusiasm for logical positivism
had already cooled off, because of its h eavy d emands on scien tific language and the
demarcation of science/pseudoscience, Ross ch ose to extend the quantified structure of
ownership and concluded that ownership is without semantic reference, and it m ay be
dissolved in to a lternative elem ents of law and cum ulative legal consequences. Ross
argues at the sam e ti me for elasticity as part the concept of ownership, not as a
description of a possible tem porarily bila teral a greement but as a defen ce again st the
disintegration of the concept. 4 Ross never said much about elasticity but it renders an
explanation that takes into account his presum ption of ownership – at a ll. Alf Ross’s
concept of ownership may then be described as being an inherently quantified structure.

To complete the picture it is also possible to encounter a nom inalistic approach to legal
ownership in Danish jurisprudence. These proponents i.e. K nud Illum don’t accept any
inherent structure but they can’t totally disregard the co ncept of ownership either.
Instead, they use ad ho c explanations when necessary to link a right to the concept of
ownership. The ad hoc explanations m ay be the specific agreem ent in questio n,
company/corporation law, theories about juri stic persons or pure and simple the statute
in question.

What commenced as a quest for dis mantling the unified concept of ownership to so lve
the p roblem of tran sfer of ownership, ends up leaving us w ith two possible ways of
talking about ownership – again. 5 The determ ination of ownership will often be
resolved by using the conditions for the transfer of ownership.

4
Alf Ross concept of ownership was challenge a few years later, when the Icelandic government wanted part of the
collection of Icelandic sagas back to Iceland from a Danish research trust in Copenhagen. Ross didn’t find that the
trust met the requirements of an owner, but the Supreme Court did cf Ugeskrift for Retsvæsen 1967.22 H.
5
Having analyzed the theories of ownership by Frederik Vinding Kruse and Alf Ross Peter Pagh concludes, that in
any way ownership is still presupposed (1998, 140).
 90

Inherent structure Nominalistic structure

Quantitative criteria Alf Ross Knud Illum
Qualitative criteria Frederik Vinding
Kruse
Figure 1. Distinction of inherent and nominalistic structure.
(Source: Elmer, 2008)

The transf er of ownership m ay, when viewed as a qualita tive/quantitative transf er of

rights, b e s ufficient to determ ine the leg al o wner and hence the right to exc lusive
control and use apart from limitations imposed by law, legal doctrines etc. However, the
distinction between a nom inalistic and an inherent stru cture of ownership is not
sufficient to clarify possible limitations on the rights of the owner. The relation between
uncompensated regulation and compulsory acquisition 6 will be of inter est no m atter
how the issue of ownership is approached, b ecause it presupposes a specific problem or
conflict. It should be noted, though, that the us e of theories about the inherent structure
of ownership m ay preclude som e areas of argum ents otherwise available for the
proponent of nominalistic ownership.

2.1.1 Ownership in Danish spatial planning – a historical overview

Factors like migration from rural to urban areas, stagnation in the construction industry,
poor econom ic situation in the wake of the first W orld War accentuated the need for
better spatial planning for towns and citi es and their surroundings and not just a
regulation of building constr uction in order to prevent health haz ards like uns table
constructions, fire and epidem ics. Experts in various fields of work had since 1916
(Madsen 2009) tried to persuade th e politic ians to ac t on this urgen t n eed f or spa tial
urban planning, and in 1924 a bill 7 was introdu ced le aving it to the m unicipalities to
decide whether a local plan was needed or not.

During the reading of the bill a change was made to it at a crucial point: the grounds f or
compensation. The passed and enacted bill had become alm ost worthless as an
instrument of planning. The Town Planning Act of 1925 8 made it possible for every
land- and house owner to claim c ompensation, if they we re affected by a local plan
proposal, a adopted final local plan, an inte rim injunction and dispensations from a nd
changes of local p lans. There was no deadline in the Town Planning Act for subm itting
the claim. Finally, the owner may reject the compensation offered and instead demand a
compulsory purchase of the property.9

The Town Planning A ct did not recogni ze the possibility of non-com pensational
regulation. Frederik Vinding Kruse was a strong proponent for compulsory urban
planning, and he found the To wn Planning Act to be a discontinuation of Danish
jurisprudence (1929, 235 and 306). Thus, the Town Planning Act received a lot of

6
By Danish law compulsory acquisition is subject to full compensation.
7
Bill of 20 November 1924 concerning town planning read in Landstinget (the Upper House) of the bicameral
system of that time.
8
Town Planning Act no. 122 of 18 April 1925.
9
Section 9 and 10 of Town Planning Act.
 91

criticism, because the m unicipalities couldn’t estim ate the co st of adoptin g a lo cal plan
for an area.10

Through the 1930’s Frederik Vinding Krus e developed a m ore specific view on
planning and ownership in connection with non-com pensational regulation and
compulsory acquisition. The key fea ture here is, whether the local plan presupposes a
transfer of ownership rights or just lim itations imposed by law or a local plan. Al most
needless to say that transfer of ownershi p rights would result in com pensation, while
limitations imposed by a local plan woul dn’t. W hen the Town Planning Act wa s
amended in 1938 11 it was Frederik Vinding Kruse’s de scribed relationship of ownership
and com pensation that constituted the syst em used in the Act (Blom quist 1991 cited
Forchhammer 1940; Meyer 1952). At the sam e tim e it becam e com pulsory to adopt
local plans for boroughs and towns with more than 1000 inhabitants.

However, far from all s tatutes and their am endments within the area o f environm ent-
and planning has had the benefit of a discus sion concerning the concept of ownership
and the distinction between non-compensationa l regulation and compulsory acquisition.
In som e cases due to by a rather unclear approach to the presupposed idea of legal
ownership; in other cases due to p ragmatic app roaches to com pensation and political
negotiations, when debating th e specific bills. It should also be taken in to account that
the upgrading and expansion of the administration during the construction of the welfare
state has r esulting in the tran sfer of tasks f rom traditiona l lega l r egulation and the
judiciary and so changing from reactive indi vidual defens es again st the state to the
administrations proactive protection of the citizens (Blomquist 1991). The specific ways
to view the concept of owners hip may also vary depending on the subject to which it is
applied within the area of environmental law (Pagh 2006).

2.1.1.1. The concept of ownership in the Planning Act

The Planning Law of 1992 incorporated severa l statutes and in te rms of ownership and
compensation the Act re-enacted the principle of non-compensational regulation (Anker
2006). Spatial p lanning accord ing to the Planning Act is lim itations im posed by a
regional development plan, a m unicipal plan or a loca l plan. However, the lim itations
may be so severe and close to a transf er of rights that the owner m ay claim
compensation on the grounds that the specifi c planning is compulsory acquisition. Such
a claim would be warr anted in th e Danish Constitu tion,12 but if the m unicipality ca n
refer to adequate and legal grounds for the specific plan, the claim wi ll probably not
stand up in court (Anker 2006; Andersen & Christiansen 1989; Friis Jensen 1978).13

The Planning Act also warrants compulsory acquisition for the execution of a local plan,
when the acquisition is appropria te, necessary and reason able.14 Until Au gust 2009 it
was also po ssible to w arrant com pulsory acquisition based on a m unicipal plan for

10
General explanatory notes to bill of 9 February 1938 concerning town planning.
11
The amended Town Planning Act no. 181 of 29 April 1938.
12
Section 73.
13
This point of view has been tried by the courts (Ugeskrift for Retsvæsen 1975.743 H, Ugeskrift for Retsvæsen
1979.938 Ø, Ugeskrift for Retsvæsen 1987.849 H and Ugeskrift for Retsvæsen 2009.188 H) but so far only one
unpublished decision (14 November 1984) from the Western Division of the Danish High Court held that a local
development plan imposed too many restrictions on the owner.
14
Planning Act Section 47.
 92

urban developm ent i.e. to acquire rural land for future urban developm ent. The
compensation would be calculated on the basi s of rural land instead of urban zone. 15
Proponents of this warrant for acquisition po inted out that the m unicipality could
acquire ru ral land at a low cost s ome time before the urban developm ent would
commence.16 Opponents of the warrant for acquis ition referred to the exclusive right o f
the owner and compulsory acquisition was for the execution of public interest i.e. roads,
schools etc., but not for the interest of the m unicipality, which would be the receiver of
the surplus, when reselling the acquired land to urban developers.17

The eligibility to m ake com pulsory acqui sition based on a m unicipal plan, however,
were rem oved by an am endment to the P lanning Act in 2009 18 on the grounds that it
was a violation of the right of the owner to execu te the future plan for urba n
development and hence receive the surplus. At the same time municipalities were urged
to m ake greater use of urban regen eration and densif ication of existin g settlem ents,
rather than to plan for projects involvi ng rural land – planning principles, which falls
well in line with considerations of sustainability in urban development.19

2.1.2 Concluding remarks

Compulsory acquisition was a part of the municipalities’ toolbox in the 1970’s and the
beginning of the 1980’s (Revsbech 1995). It was a time with focus on the collective and
general interest in spatial planning and not the individual interests and rights of the land-
and house owners. By 2002 focus has shifted; now the ownership of the individual
owner of property requires th e upmost attention and protecti on. Spatial planning is still
for the benefit of the communit y, but it can’t be done at th e expense of the individual
property owner. Ideologically, we have a conception of ownership that equals a
qualitative inherent structure – but even more so, because the argument seems to be that
ownership is a substantial right. The inherent structure in Figure 1 is then exceeded as to
the presupposed structure of the concept. This m ay be done by letting the rhetorical
speech flou rish, so for now it s till seem s pr obable to place the c oncept of ownersh ip
within figure 1. It is beyond doubt, though, that the ownership of the property owner has
received a higher priority since the change of government in 2001.

3 Sustainable Development in Denmark

3.1. Jurisprudential and ethical considerations
The thought of having ethics forming the basis for sustainable development in a
jurisprudential context is by itself a controversial subject in Danish jurisprudence. It is
due to the fact that Danish jurisprudence has a longstanding influence by logical
positivism, which as a scientific paradigm leaves no room for ethical judgements.
However, some scholars have argued that ethics should have a more predominant
position, when trying to understand, how the concept of sustainable development may

15
Compulsory Acquisition for Urban Development Act no. 123 of 1 April 1980.
16
The Danish Parliament’s first reading of bill no. 94 of 21 December 1979 concerning Compulsory Acquisition for
Urban Development.
17
Op.cit.
18
Amendment of the Planning Act no. 512 of 12 June 2009.
19
General explanatory notes to bill no. 135 of 19 February 2009.
 93

help us securing the future for us and generations to come. The concept of sustainable
development is considered to hold four core ethical issues:

1. Intergenerationality, where equality for each generation is sought and respect for
each generation’s own need (Bugge 1995; Bugge 2008; Pagh 2006).
2. Intragenerationality, where the distribution of wealth should be equal between
the rich and the poor countries and between the rich and poor citizens in each
nation (Bugge 1995; Bugge 2008; Pagh 2006).
3. The relation between human beings and nature and the consumption of non-
renewable resources must be precautious and we have to think in alternative
measures (Bugge 1995; Bugge 2008; Pagh 2006).
4. The question of uncertainty about values and priorities, when the future level for
protection is predetermined (Bugge 1995; Pagh 2006).

Hans Christian Bugge20 (1993) refers to the first and second principle as a double claim
for justice, which strengthens the ethical value of and set the standards for the two
principles in competition against the two other principles. It also seems to work as a
way to emphasize and ensure the effectiveness of the principles, when the ethical
principles are used as a guideline for future transformation into legal regulation. In
(1995, 35f) Hans Christian Bugge points to second generation rights as a way to ensure
the right to education, health, social services, housing etc. and he also discusses the
possibility of using third generation rights in order to ensure that nature and perhaps
also future generations are taken into account.

In her earlier work Ellen Margrethe Basse (1995; 2001) elaborates on Hans Christian
Bugge’s conceptual description and specific argues for a substantive side to the concept
of sustainable development. She draws a parallel to the concept of justice, which
purports a right for the citizens to an environment of a certain quality and a right to be
heard. However, in her later work Ellen Margrethe Basse (2006) seems to concur with
the mainstream scholarly opinion that sees the exercise of discretion in national
administrative legal systems emphasizing environmental considerations and a
weakening of the considerations governing the legal division of the administrative fields
of responsibility (Pagh 2006; Christensen 1997; Andersen 2002; Garde 2004).

Veit Koester finds that the concept of sustainable development is difficult to apply in a
jurisprudential context (1999). Veit Koester regards the concept as a broader term
compared to other more substantial principles, by which it is implemented. Similar
views are expressed by Philippe Sands (2003) and Michael Bowmann (2000).

Henrik Zahle (1995) contemplates the implications of incorporating a legal protection of

nature in the Danish Constitution. Henrik Zahle was far from being an anti-
environmentalist, but he did found that some difficulties had to be overcome first: how
do we delimit the concept of nature, how do we delimit it to the concept of environment
or do the two concepts overlap each other, who or what is the right-holder and last but
not least shouldn’t it be a responsibility instead of a right? Unlike the Norwegian
Constitution the Danish Constitution has not been amended, but Ole Kristian Fauchald
20
Hans Christian Bugge is a Norwegian professor of law but he has had a tremendous impact on the theoretical
development in Danish environmental law.
 94

shows in (2007) that the legal impact of introducing a protection of the environment in a
national constitutional document has had little bearing on the judicially outcome.

Finally, it should be noted that although the theory of John Rawls may play an
important part, when it comes to understand the priorities of the principles in the
concept of sustainable development, Danish environmental legal scholars haven’t
picked up the idea of reflective equilibrium as a way to describe the more substantial
side of sustainable development. It may be due to fact that substantial analysis of
concepts isn’t part of the jurisprudential paradigm in Denmark.

3.1.1. Concluding remarks

The concept of sustainable development is not a legal concept, from which we may
derive rights and obligations. Rather, it is a general or background concept, which
works its way into the legal system by challenging the way we interpret the statutes
(Tuomela 1995). However, the materialization of the concept through more operational
concepts has more focus on the statutes securing the public access to information.

3.2. Sustainable development in Danish Planning Law

The WCED’s definition of sustainable development was incorporated in the Planning
Act as part of an environmental reform; a reform that has been criticized for being
unnecessary, not political motivated and more to the benefit of the administrative
system (Garde 1993) and Ellen Margrethe Basses comments on this (1993).
Nevertheless, as a result of the reform the concept of sustainable development became a
constituent part of the purpose of the Planning Act and other environmental laws.
Accordingly, the Act states21 that

the overall planning synthesizes the interests of society with respect to land use and
contributes to protecting the country’s nature and environment, so that sustainable
development of society with respect for people’s living conditions and for the
conservation of wildlife and vegetation is secured.22

Further, the Planning Act23 aims especially towards 1) appropriate development in the
whole country and in the individual administrative regions and municipalities, based on
overall planning and economic considerations; 2) creating and conserving valuable
buildings, settlements, urban environments and landscapes; 3) that the open coasts shall
continue to comprise an important natural and landscape resource; 4) preventing
pollution of air, water and soil and noise nuisance; and 5) involving the public in the
planning process as much as possible.

As a result of the UN Conference on Environment and Development (UNED) of 1992

the Ministry of Environment agreed with LGDK24 and CCDK25 to launch a joint

21
Planning Act, Section 1, subsection 1.
22
David Breuer has translated The Planning Act in Denmark, Consolidated Act No. 813 of 21 June 2007
http://www.blst.dk/NR/rdonlyres/4BDB0226-256C-4999-91EC-1FF90AC148BF/50763/planlovenpengelsk2007.pdf
23
Planning Act, Section 1, subsection 2.
24
Local Government Denmark (LGDK) is the interest group and member authority of Danish municipalities.
 95

Agenda 21-campain aimed at local and regional authorities, citizens, companies,

institutions etc. The actual work of Agenda 21 was and still is based on commitment,
partnerships and voluntariness, but Folketinget (the Danish Parliament) passed an
amendment to the Planning Act in order to supervise the implementation of the Agenda
21-strategies. Regional councils and municipal councils are obliged to publish a report
on their strategy for sustainable development with information on how this work will be
carried out in a holistic, interdisciplinary and farsighted manner and how the public,
enterprises, organizations and associations will be involved in this work.26 The reports
are also submitted to the Minister for the Environment. Every four years, the Minister
for the Environment submits a report27 on Agenda 21 work to a committee established
by the Folketing. The report is produced in cooperation with the associations of regional
councils and municipal councils.28

The concept of sustainable development in the Danish Planning Act is based on the
WCED definition, which retains the anthropocentric approach, but what about the
intergenerational perspective? One may say that spatial planning - being a future-related
activity - it presupposes the generations to come, and by doing so spatial planning
provides the settings for the lives of future generations.29 It is, however, difficult to
accept this point of view, because if we are to respect the fulfilment of future
generations own needs, it may be limited by historic settings. The intragenerational
perspective has very little to do with spatial planning in the Planning Act-sense in so far
that the problems associated with the intragenerational question are seen as allocation of
resources based on a position on legal ownership, leasing etc. In Danish planning law it
is not possible to determine the legal ownership neither in regional development plans,
municipal plans nor in local plans. If, however, it is possible to describe the regulation
of legal ownership as taking social sustainable development into consideration, then it
has been among the top priorities of the political agenda for the past decade.

3.2.1. Governmental Action Plans and a national strategy

The method of choice for initiating sustainable development in different areas of interest
has in Denmark up till 2002 been the so-called action plans. The terms of an action plan
may be very abstract ideas, but it may also be followed up by very specific proposals.
As a source of law action plans are political documents subjected to a parliamentary
reading in order to resolve political differences.30 Thus, action plans aren’t binding on
administrative decisions (acts), they are politically binding on future legislative
decisions made by ministers of the government, when the action plan states specific
proposals. Helle Tegner Anker (1993) has put forward the idea that action plans are in
some ways similar to preparatory work like explanatory statements and so they may be
regarded as binding on administrative decisions. There are, however, no authorities in
this area, so in regard to action plans as a source of law the traditional approach to is

25
County Council Denmark (CCDK) was an interest group and member authority of Danish county councils. The
county council-structure has been changed in 2005 from 14 counties to five regions.
26
Planning Act, Section 33a.
27
The latest Ministerial account of Local Agenda 21-strategies is published in November 2009.
28
Planning Act, Section 33b.
29
Peter Pagh (2006) holds that the concept of sustainable development operates directly and independent within the
temporal dimension, but the scope of the opinion is not clear in regard to Planning Act.
30
This is due to the political situation in Denmark. In Folketinget (the Parliament) the 179 members are among 13
political parties and none of the parties have absolute majority.
 96

upheld, see also Henrichsen (1997, citing additional litteratur). This approach does rule
out the possibility that bills passed by Folketinget but not yet received the Royal Assent
in some cases may be regarded as a binding source of law (Blume 1994) in a court of
law.

3.2.1.1. Specific Plans of Action

The understanding of the sustainable development in the Danish Planning Act used the
Action Plan for Environment and Development (Handlingsplan for milljø og udvikling
1988) as a starting point. This action plan did not apply a different understand of
sustainable development than the one laid down in WCED. Cities are still the resource
intensive and polluting organism and the focus of urban planning is restricting and
preventing excessive use of fossil energy, water and non-recyclable materials
(Handlingsplan for milljø og udvikling 1988, 124).

Following the EU-Commission’s plan of action for sustainable urban development in

the European Union31 the Danish Urban and Housing Ministry32 launched a Action Plan
for the City of Tomorrow.33 Following this plan of action the concept of sustainable
development was in an urban planning context delimited but in a more proactive
manner. Urban planning was to be much more than damage control. Five focus areas
were highlighted: 1) a favourable trade environment, 2) increased democracy and
participation, 3) residential social work and mixed forms of ownership, 4) the city’s
spatial layout, and 5) the framework and organization of urban policies. These five
focus areas were analyzed and elaborated by a expert committee – Trade and Urban
Policy Commission (Erhvervs- og Bypolitisk Udvalg 2001).34 In the final reprt
submitted by the Commission the development of the city is split up into the diverse
city and the sustainable city. The diverse or multiple city holds different initiative to
facilitate mixed forms of ownership and the sustainable city holds ideas concerning
recycling, urban regenration and urban renewal.

The distinction between the diverse and the sustainable city reflects legal possiblities for
imposing changes of far-reaching implications. This became clear, when in 2001 a
government was formed by the Right Wing Party (Venstre) and The Conservaties
(Konservativt Folkeparti) with the Dansh People’s Party as the suppporting party to
ensure majority in Folketinget. A national twenty years strategy for sustainable
development was presented in 2002 “Common Future – Balanced Development”
(Fælles fremtid – udvikling i balance, 2002). The strategy had adopted quite a few of
the previous objectives from the Committee’s report but the role of commerce had been
given a noticable priority – even mixed owership was now prioritized as self-ownership
in terms of houseowners and resident owned flats. This neo-liberalistic35 key issue was
especially intented for the independent social housing organizations and not unlike the

31
(COM/98/605)
32
The Ministry was in 2001 merged with the Ministry of Social Affairs
33
The Action Plan was also given as a Ministerial account of urban policies to Folketinget, 23 February 1999.
34
Commission Report no.1397/2201.
35
The former Prime Minister Anders Fogh Rasmussen was influenced by Robert Nozick’s ‘Anarchy, State and
Utopia’ and in 1993 he published the book ’Minimal State’ – a neoliberal political manifesto at a time, when the
Social Democrats Party, Central Democrats, The Liberal Left Party and the Christian People’s Party had formed a
governmental coalition. Anders Fogh Rasmussen was Prime Minister from 2001-2009is currently Secretary General
of NATO.
 97

British model for selling local government housing to sitting tenants in the 1980’s a
bills was passed36 to ensure that Danish social housing stock was put up for sale on
favourable terms to sitting tenants. The Social Housing Organizations claimed the Act
to be illegal compulsory acqisition, because they had not been offered any
compensation as the purchase price, when selling a flat or house, was not paid to the
organization. The claim was brought before the Danish Supreme Court,37 where five
judges out of nine ruled in favour of the Act being noncompulsory acquisition. Four
judges gave a dissenting judgment in which they disagreed with both the result and the
justification of the majority.38

3.2.1.2. Action Plan motivated Amendents to the Planning Act

The present national strategy for sustainable development has also resulted in two
amendments of the Planning Act:
In 200339 was the focus on the possibilities for urban regeneration of older industrial-
and harbour districts into mixed urban business- and housing areas. In relation to the
impact on private ownership it should be noted that the municipality may decide to hand
responsibility for maintenance of the common area to an association of homeowners.
The terms and delimitation of the responsibility will be outlined in a local plan for the
specific area.

The second amendment was passed in 2007.40 Property owners were now given the
opportunity to enter into voluntary development agreements with the municipality on
contributing to the physical infrastructure, such as squares, streets and paths through
planning for urban development or urban regeneration.

3.2.2. Concluding remarks

The concept of sustainable development is a very broad concept i.e. the social housing-
case verifies that. The amendment of the Planning Act, which took away the possibility
of compulsory acquisition for future urban planning, wasn’t motivated by an action plan
and it wasn’t motivated by the idea of sustainable development. The latter was more of
a side-effect of the principle idea: to respect the ownership rights of the property
owners.

4 A Brief Conclusion
Implementation of the concept of sustainable development in the Planning Act of 1992
hasn’t directly delimited or even broadened the rights of property owner in any
significant way. Nor has the specific local planning had any impact on the rights of the
property owners due to sustainable development regulation. The change of government
in 2001 did, however, have an impact on the way in which ownership rights and
sustainable development were defined. The emphasis on social sustainable development
has widened the scope for reforms in other areas of society and a deregulation of spatial
planning.
36
Amendment to Social Housing Act no. 485 of 2004 of 9 June 2004.
37
The 7 November 2007, published in Ugeskrift for Retsvæsen 2008.378 H.
38
A review of the Supreme Court’s judgment, see (Jensen 2008; Elmer 2008).
39
Amendment to the Planning Act no. 440 of 10 June 2003.
40
Amendment to the Planning Act no. 537 of 6 June 2007.
 98

Acknowledgements
I wish to thank the Agency of Spatia l and Environm ental P lanning for m aking it
possible f or m e to write this pape r, and f ormer lib rarian L iselotte Møller, Agency of
Spatial and Environmental Planning, for her enthusiasm and competent help.

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 101

The Severn Tidal Barrage Project: a legal paradox? A case

study looking at the possible conflict between climate change
policy and environmental legislation in the UK.
1
Tilak Ginige, 2Ann Thornton, 1Fraser Ball, 1Natalie Sparks.

1
School of Conservation Sciences, Bournemouth University, Talbot Campus, Fern Barrow,
Poole, Dorset, BH12 5BB, United Kingdom
2
Lindsay Carrington Ecological Services Ltd, The Old Squash Court, Rempstone Hall,
Rempstone, Corfe Castle, Wareham, Dorset, BH20 5JQ, United Kingdom.

Abstract
The proposed constructio n of a tidal barrage to generate el ectricity in the S evern Estuary
between England and Wales could provide an economically attractive and en vironmentally
acceptable way of suppl ying up to 7% of Engla nd and Wales’ s electricity consumption with
low-cost, low-carbon electricity b y 2 020. T hus h elping the UK governm ent to m eet its
obligation under its current Climate Change Policy and specifically those contained within the
Renewable Energy Strategy (2009) of a chieving 15% of energy supply from renewables b y
2015.

This development will however have a huge impact upon 63,000 overwintering birds; destroy
protected areas of wetland; and alter the estuarine ecosystem beyond repair.

If projects like this were permitted, the UK would have to take com pensatory measures to
ensure the o verall coherence of Natura 2000 was protected (Art. 6(3) & 6 (4) of the EC
Habitats Directive 92/43/EEC). Will th ese compensatory measures be effective considering
that we do not fully appreciate the role and function of ecosy stem services provided by areas
such as those around the R iver Severn? Perhaps more importantly are we prepared to gam ble
that their loss will be less damaging to us than the impact from future climate change?

This then obliges us to question the weight given to conservation of species and habitats in an
era of economic transformation and climate change obligation. We need to ask ourselves if
we truly are at a point i n our evolution where we will be m aking decisions of whether or not
to sacrifice one good for another greater good (Alder, J. and Wilkinson, D., (1999).
 102

Given the overwhelm ing legal protec tion afforded to this area one of the issues that needs to
be explored is how such a proposal wa s even considered? Have we approached the moment
when Article 6(4) of t he Habitats Di rective ‘ Imperative Reasons of Overriding Public
Importance’ (IROP) will include combating climate change? If such a project is allowed t o
go ahead in this area, does the prevention of cl imate change represent the ‘trump card’? Does
this present an open door t o developers wishing to capitalise upon opportunities presented by
the governm ent’s bi nding targets? Provided t hat it can be shown that t he project o r
development contributes towards these t argets, will all other environmental considerations be
ignored?

Thus placing us in a paradoxical situation where the environment will be irrevocably changed
in order to prevent the environment being irrevocably changed.

Keywords:
Climate Cha nge Polic y, Renewable E nergy Stra tegy, Habitats Directive (Di r.92/43/EEC),
Paradox, Balancing interests.

Introduction

It has been e stimated that the offshore renewa ble energ y ind ustry cou ld gene rate the same
amount of el ectricity a year by 2050 a s one b illion barrels of oil (Clarke, 2010). If the UK
were to harn ess just 29 per cent of its wind, wave and tidal resources it would be able to
match the electricity generated by North Sea oil and gas production. Such a move would be a
huge boost i n cutting emissions, saving a cu mulative total of 1.1 billion tonnes of carbo n
dioxide over the next 40 y ears (The Offshore Valuation Group (OVG) 2010). The OV G
estimated that it would cost £443bn to harness 29 per cent of the offshore resources, but at the
same time that the scheme would gener ate £62bn in annual exports. This figure could rise to
£164bn if the government invested around £993bn – or 76 per cent of available resources.

In the UK, using tidal power or tidal range in the form of barrages or lagoons could make the
largest contribution for future renewable energy. (OVG 2010) A tidal barrage works in a
similar way to hydroelectric power schemes, in that it is a way of converting the kinetic
energy of water into electric power (Frontier Economics, 2008). This technology would
extract the energy associated with the difference between high and low tides, but out of all the
renewable energy technologies it is by far the most expensive (Clarke, 2010) (OVG) 2010).
 103

Severn Estuary
The Severn Estuary located at the south-west coast of the UK between Wale s and England at
the mouth of the Severn, Wye and Avon rivers has the second highest tidal range in the world
after the Bay of Fundy, Canada with a mean tidal range of 4.68m at Milford Haven and 8.52m
at Avonm outh (Sustainabl e Develop ment Comm ission October 2 007). The tid al range has
resulted in around 20 0km2 of inter-tidal zone in the Seve rn Estuary that supports a wide
variety of fa una. A hi gh tidal range, a s exhib ited in the Severn Estuary, is caused by the
combination of estuary shape and the velocity at which the tide wave propagates causing tidal
resonance. As a result, the high spring tides at Avonmouth can exceed 14m (Xia, J.Q., 2010),
making it an ideal site for constructing a tidal power project.

Tidal Barrage Scheme

The idea of a barrage acro ss the Severn estuary is not new and was first mooted during the
latter half of the 19 th century for t he purposes of harbour creation, flood defence and as a rail
transport link . Its use for energy gene ration was b rought t o the forefront of governm ent
thinking during t he fuel crisis of the 197 0s (Peth ick et al. 2 009). T he Severn Barrage
Committee (SBC) was set up as a result. Additi onal fuel issues during the 1980s, includi ng
the Chernoby l nuclear disaster and disturbances fo llowing pit closures, led the SBC to
endorse a b arrage scheme. As a result in 1989 a report was produced for the then
Conservative governm ent. It concluded that the Severn barrage could pro vide significant
economic, so cial and environmental benefits (HMSO (1989) En ergy Paper 57). However,
following the privatisation of the electricity ind ustry, the Severn barrage project was
effectively ‘shelved’.

In 1999 Energy Minister Ian Battle controversially refused to approve a reappraisal of the
proposed barrage despite pressure from the Severn Tidal Power Group (STPG) - (a
consortium of McAlpine, Balfour Beatty, Alsthom, Rolls Royce, Taylor Woodrow and
Carillion). However, a year later a recommendation by the Royal Commission on
Environmental Pollution provided the impetus for a re-assessment of tidal energy production
as a way of reducing CO2 emissions (22nd Report: RECP, 2000).

The Kyoto protocol (United Nations, 1997) and sustainable development implications led the
new Labour government to instigate a discussion on the feasibility of a Severn tidal barrage.
In 2002 the STPG produced ‘The Severn Barrage – Definition Study for a New Appraisal of
the Project’ (Taylor, 2002). This study concluded that a reappraisal of the Severn barrage was
justified on several grounds: reductions in the capital building costs of the scheme; Kyoto
targets for greenhouse gas emission reductions; flooding risk in the Severn basin due to
 104

climate change which would be mitigated, in part, by the barrage.

However, by 2004, the barrage proposal was again dismissed by Industry Minister Lord
Sainsbury due to the likely ‘significant effects’ on the ecosystem of the area. This was
despite calls from other peers suggesting that the barrage could provide additional transport
links to the region in the form of a rail crossing. Lord Sainsbury also added. "We would be
required under our international obligations to recreate inter-tidal habitats in order to
compensate for that [ecosystem] loss." (ENDS Report No. 348, 2004) The STPG consortium
proposed that predictions of habitat loss from climate change should form the baseline of any
environmental assessment - although these may be extremely difficult to make in practice.

In 2007, the Sustainable Development Commission (SDC) produced ‘Turning the Tide’, a
study into the potential of tidal energy production in the UK (SDC, 2007). It incorporated
recommendations for a sustainable Severn Estuary Barrage. The Government’s five
sustainability principles (Cullingworth, B. and Nadin, V. (2006)) would form the basis upon
which a decision could be made as to the feasibility of such a large-scale development. From
a sustainable development perspective, this document contained a number of pertinent points
regarding the environmental issues and legislation covering the Severn basin area. The
Commission highlighted the ‘significant adverse effect on the integrity of the protected sites’
although it acknowledged that these effects would be different dependant upon the location
and scale of the chosen development.

The report also notes views expressed concerning the suitability of both the Habitats and
Birds Directive in coping with the implications of climate change ((SDC), 2007 pp. 130).
Furthermore, the SDC heard views suggesting that ‘one-off derogation’ would be appropriate
for matters of climate change mitigation ((SDC), 2007 pp. 131). The Commission certainly
remained convinced that such derogation would send entirely the wrong signal to other
Member States. In addition, it could create difficulties in the scale of development that would
be deemed appropriate for such derogation. The Commission also acknowledged that
increased housing and other development around the Barrage could reduce the effectiveness
of any climate change benefits.

The SDC concluded that “any proposal for a Severn barrage must fully comply with the
Directives and adhere rigorously to the process they set out”. It stated emphatically that they
“would be firmly against any moves to revise or derogate from the Directives to facilitate
proposals for a Severn barrage”. Despite these reservations and contrary to the findings of the
1980s feasibility study, the now defunct SDC (ENDS Report 426, July 2010, pp. 5-6)
 105

advocated a 10 mile barrage between Cardiff Bay and Weston-super-Mare (ENDS report 393,
2007).

Following the publication of ‘Turning the Tide’, the Department for Energy and Climate
Change (DECC) called for proposals for tidal energy schemes for the Severn Estuary in 2008.
As a result of the consultation that formed part of Phase 1 of the Feasibility Study, a long-list
of 10 projects was formed (DECC, 2009), these included barrages, tidal lagoon and tidal
fence schemes. In January 2009, a short-list of five was developed based upon the findings of
the feasibility study together with best available technology. The five short-listed schemes
(fig 1) currently under consideration are:

• Shoots Barrage – near the Severn road crossings, estimated to cost £3.2bn to
construct and generate 2.7TWh/year, which would account for just under 1 percent of
UK electricity
• Beachley Barrage – slightly smaller and further upstream than Shoots Barrage, and
upstream of the Wye, estimated to cost £2.3bn and generate 1.6TWh/year
• Welsh Grounds Lagoon – an impoundment on the Welsh shore of the Estuary
between Newport and the Severn road crossings, estimated to cost £4bn and generate
2.3TWh/year
• Bridgwater Bay Lagoon – an impoundment on the English shore of the Estuary
between Hinkley Point and Weston Super Mare, estimated to cost £3.8bn and
generate 2.6TWh/year
• Cardiff-Weston Barrage (commonly known as ‘The Severn Barrage’) – located
between Brean Down and Lavernock Point, estimated to cost £20.9bn and generate
16.8Twh/year , which would account for 5 percent of UK electricity.
 106

Fig 1 Map of the Bristol Channel and Severn Estuary showing the location of th e
Cardiff–Weston (or Severn) and Shoots barrages and the Flem ing lagoon (Xia, J.Q.,
2010).

An inquiry conducted in April 2010, by the All Party Parliamentary Group on Angling
concluded that the largest scheme, the ‘Severn Barrage (Cardiff – Weston)’ would damage
the estuary and recommended a shorter barrage upstream (Salter and Walker, 2010). Not
surprisingly the Department for Energy and Climate Change denied suggestions that this
scheme had been abandoned and stated that it will continue to appraise the project along with
the other four (DECC, 2009).

The Severn Barrage is considered to be the best, although the cost would be the highest of all
the schemes, it is thought that the barrage would generate more power than the other
proposals and in turn would help contribute to the renewable energy targets.

As the largest and potentially most damaging of all the schemes, the ‘Severn Barrage’ has
courted most controversy. In February 2010, the RSPB highlighted the potential for increased
flooding risk from the barrage. It is widely acknowledged that the Severn Barrage will result
in significant impact upon the habitat and wildlife of the basin. This, according to the ENDS
report (409, Feb 2009) could extend inland and impact upon salt marsh habitat and the
ecosystems of the Somerset Levels.
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The Severn Tidal Barrage

The construction of the barrage would contain 216 turbines, each predicted to generate
8,640MW in total. The array of sluices would let the tide in then close to force the water back
out through the turbines after the tide has gone out. The purpose for building a head on the
water is to create pressure which increases the efficiency of the turbines. Shipping would be
accommodated through a series of locks which would handle the larger container vessels. The
barrage would take around eight years, requiring around 35,000 employees at peak building
time. The lifespan of the barrage is predicted to be 120 years (About three times that of a
nuclear reactor), but this could be increased to 200 years with a comprehensive maintenance
program (Anderson, S. H., 2007).

In the Severn estuary high sediment load is maintained in the water column is maintained by
the current passing though the deep channels, which are narrow with shallow areas, bordered
by ground which floods in high tides. The mud suspended within the estuary mostly comes
from erosion from the rivers and streams that feed into the estuary, such as the River Wye.
(Parsons Brinckerhoff Ltd (2008)). The area also contains large amounts of inter-tidal
mudflats, sand flats, salt marsh, rocky inter-tidal areas and sand dunes. These sub tidal
habitats are well known for their importance to all the wildlife in the area. However little is
known about the wildlife on the estuary floor, due to the dynamic movement of the tides
within the estuary. This in turn may alter distributions and concentrations of contaminants in
estuary water and sediments. (Pethick, et al., 2009). The changes in suspended sediments may
also affect primary productivity and may contribute to eutrophication (Mettam, C. 1978). The
government itself acknowledges that the vibrations and noise from the barrage would damage
and confuse migratory and estuarine fish species such as the protected Allis and Twaite shad
(DECC, 2009).

Climate Change & Renewable Energy Implications

Under the Kyoto Protocol, a number of countries agreed to reduce their greenhouse gas
(GHG) emissions. In order to fulfil its Kyoto obligations, in June 2009, the European
Commission published the Climate Change and Energy Package of legislation (also known as
the "20-20-20 package" (COM (2010) 265 Final (May 2010)) to implement the new EU
energy policy adopted in March 2007. The proposals contain measures to reduce GHG
emissions in the EU by 20% by 2020, and ensure that 20% of the EU's overall energy needs
are met by renewable energy by 2020.
 108

As part of the 20-20-20 package, the Commission published Directive 2009/28/EC OJ

L140/16 which would:
ƒ A common EU framework for the promotion of renewable energy.
ƒ 20% of the EU's final energy consumption to come from renewable sources by 2020.
ƒ 10% of each member state's transport energy consumption to come from renewable
sources by 2020.
ƒ That the UK achieves a 15% share of its energy from renewable sources by 2020, as
its contribution to the EU's overall 2020 target.

This directive took into account the fact that UK's renewable energy share is very low, at
1.3%, in the baseline year of 2005, and only about 2.25% in 2008 (DECC 2009. The UK
Renewable Energy Strategy). In addition to its international targets, the UK Government has
agreed to commit itself to national targets which were made legally binding under the Climate
Change Act 2008. Thus making the government legally bound to ensure that the UK reduces
its overall GHG emissions by 80% (below 1990 levels) by 2050 (s1(1) Climate Change Act
2008).

To sum up the EU renewable energy targets have committed the UK Government to

producing 20% of its total energy from renewable resources by 2020, which corresponds to
about 35% of the UK’s electricity demand (DTI, 2003; Kirby and Shaw, 2005). At present
only about 5% of the UK’s electricity comes from renewable energy resources, so the UK
Government is currently exploring the scope for increasing its generation of renewable energy
from tidal sources, with tides having the advantage over wind and waves in that they are
predictable (Falconer et al., 2009)

Economics and Ecosystem Services

The UK Government’s 20% targets are higher than EU targets of achieving 15% of total
energy consumption from renewable sources by 2020. These targets equate to 93,000GWh
and 187,000GWh respectively of electricity generation from renewable sources (Frontier
Economics 2008).

A variety of renewable energy sources could be utilised to contribute towards these targets,
including the use of on-shore and off-shore wind, tidal, nuclear and hydro projects. The
Government needs to consider the cost effectiveness of each method of generation as well as
the capacity levels available from each source.
 109

A feasibility study produced by DECC 2008 puts forward the case for the Severn Tidal Power
scheme, within which 5 options were short-listed.
A financial analysis of these 5 schemes highlights the cost effectiveness of each proposal
after looking at the costs of construction, costs of habitat compensation and maintenance
costs. These costs have then been set against the savings produced through avoiding CO2
emissions and the costs saved by not generating electricity using Combined Cycle Gas
Turbines.

Cardiff Weston Shoots Beachley Barrage Fleming Bridgewater

Barrage Barrage Lagoon Bay Lagoon
Cost £bn 43.4 6.3 4.8 10.4 7.6
Benefit £bn 16.3 2.7 1.6 0.7 3.0
NPV (best -27.1 -3.5 -3.2 -9.7 -4.5
estimate) £bn
Value of CO2 £1.5bn £235m £132m £196m £224m
emissions
avoided
(undiscounted)
(Source: DECC Severn Tidal Power Feasibility Study( 2008)

On the basis of these figures, it is clear to see that none of the options provide a positive Net
Present Value (NPV). It is important to note that a positive NPV means that the investment is
worthwhile, while the highest NPV among different options means higher net value of the
specific investment decision (Mott MacDonald Limited, April 2007).

Therefore the savings produced in terms of CO2 emissions do not compensate for the large
construction, compensatory and maintenance costs incurred. Shoots Barrage would provide
the greatest saving of CO2 emissions in relation to cost therefore appears to be the most
attractive option. However the Shoots Barrage would only produce a 0.8% of Annual
electricity generation (based on 2020 figures) compared to the 4.8% generation projected for
the Cardiff Weston Barrage.

The Cardiff Weston Barrage is estimated to be able to produce 17,000GWh of electricity per
annum representing a major contribution to the Government targets. However the costs of
generating electricity from this source are deemed to be expensive. Projections have
 110

estimated the cost of producing electricity from a large barrage to be in the region of £60-
154/MWh compared against £41-62/MWh from offshore wind (Frontier Economics 2008).
Indeed the cost of electricity generation from a large barrage is more expensive than other
options with the exception of solar energy (260/MWh) (Frontier Economic 2008) and even
nuclear energy provides a cheaper option at £38/MWh (DECC 2008).

Although the NPV calculations have factored in the costs of compensation for destruction of
habitat at £65,000/hectare, there are many other economic considerations to account for.
Additional environmental costs may exist relating to the loss of species and damage to
habitat. The economic cost to local industry (fishing and port activity) needs to be accounted
for. Lost employment, although balanced by the creation of jobs from such energy schemes,
must also be factored in.

Any NPV should also reflect an additional, emerging, consideration namely the value of the
‘services’ provided by the Severn Estuary coastal and marine ecosystems. These provide
ecological functions that directly or indirectly translate to a variety of tangible benefits to
human society. For example they support the production of food, climate regulation, flood
protection, pollution sinks and recreational and aesthetic benefits (DEFRA, 2007 An
Introductory Guide to Valuing Ecosystem Services; Remoundou, 2009) .

Ecosystem services can be defined in a variety of ways, including “the benefits human
populations derive, directly or indirectly, from ecosystem functions” (Costanza, R., et al,
1997); “the benefits people obtain from ecosystems” (MEA 2003); “the direct and indirect
contributions of ecosystems to human well-being” (TEEB, 2008), and the “services provided
by the natural environment that benefit people” (Defra, 2007). The common link between the
various definitions of ecosystem services is the emphasis placed upon the beneficial role
played by ecosystems in enhancing or maintaining aspects of human well being and thereby
human society.

By appreciating the value of these ‘services’, an assessment can be made as to the economic
implications of changes to ecosystem balance. Such changes can arise from dynamic
environmental conditions, modification in management practices, and development activity.
A valuation of these ecosystem services could provide a convenient method to monitor the
impacts of ecosystem change which can also be used identify triggers for intervention in
ecosystem management (Watson, R., 2010).

There is considerable debate over how ecosystem services should be defined and classified
 111

which reflects differing interpretations of how social benefits are linked with ecosystem
functionality (Beaumont and others 2008; Constanza 2008). Several approaches to the
measurement and classification of ecosystem services have been proposed (Eftec,2006; Frid,
2008). Each of these classification systems uses similar, but distinctive categories, which
results in a lack of consistency and comparability between assessments. It has been suggested
by Fisher and others (2009) that a single ecosystem service classification system will not be
applicable in all circumstances and therefore a classification system should be tailored to meet
the specific needs of a given assessment. In contrast, there have been recent calls to develop a
single internationally standardized list of ecosystem services that can serve different purposes
(Haynes -Young, R., and Potchin, M., 2008), but as yet, no such universal approach exists.
The most well-known and widely applied classification of ecosystems services was developed
by the Millennium Ecosystem Assessment (MEA) (2003) which although useful for
educational purposes, is not suited for economic valuation. The MEA firmly established the
concept of ecosystem services as an approach for linking ecosystem function to human
welfare within the marine environment (UNEP, 2006). It categorises ecosystem services as
provisioning, regulating, cultural, or supporting (MEA, 2003). The MEA ecosystem service
classification has been complimented as being an intuitive and highly useful as an educational
and policy tool (TEEB, 2008). However, it has been widely criticised as not ‘fit for purpose’
(Boyd, J., Banzhaf, S. (2007) as it exhibits logical inconsistencies within and between
categories, it mixes processes (means) and benefits (ends), it is therefore particularly prone to
double counting (Haines-Young & Potschin, 2007). It is therefore unable to produce
economically robust valuation of ecosystem services (Fisher and others 2009). However, the
classification system developed through ‘The Economics of Ecosystems & Biodiversity’
(TEEB 2009) is based on a distinction between ecological processes and the benefits
experienced by humans. This model, it is suggested, is far more consistent with the
framework developed by Fisher and others (2009), which similarly focuses on valuing the
benefits to human wellbeing, and avoids the risk of double counting by separating such
benefits from underlying ecosystem processes. The classification has three components:
• Core ecosystem processes: these describe the basic ecosystem processes supporting
ecosystem functions.
• Beneficial ecosystem processes: these are the specific ecosystem processes that
directly underpin benefits to people.
• Beneficial ecosystem services: these are the products of ecosystem processes that
directly impact human wellbeing.
One such example is that of the saltmarsh habitat that, if lost from around the UK, could
result in an additional £17 – 32bn per annum on flood defence (Beaumont et al. 2008).
 112

Therefore based upon the SDC’s estimate that the Severn barrage would result in an
‘unquantified but substantial loss of existing 539ha saltmarsh resource’ it could be argued that
this would represent a £205 – £383million increase in flood defence costs.

It is also worth noting that Public Service Agreement 28 (Watson 2010) on the Natural
Environment contains within its vision a commitment ‘….where the value of the services
provided by the natural environment are supposed to be reflected in decision-making’
(Watson, 2010). Public Service Agreements (PSAs) are essentiality detailed aims and
objectives or key priority outcomes that the Government wants to achieve in the current
spending period (2008 – 2011). As such there is a danger that they will be disregarded in
favour of climate change mitigation (Local Government Improvement and Development,
2009). Furthermore evaluation of ‘ecosystem services’ in purely monetary terms provides, at
best, a wide range of values. At worst the services are impossible to value, for instance
cultural or religious benefits, thereby reducing the service to ‘value-less’ and thus ignored
(Ruhl, J.B., Kraft S. E., and. Lant, C. L., 2007).

Proponents of the Severn barrage cite La Rance as a model and highlight the slight impact
this latter development made upon the environment. However, the economic implications of
the likely more severe environmental impact caused by the Severn barrage is less
investigated. By using a more appropriate scheme in Holland for comparison, Morris (2008)
highlights the very real possibility of additional flood defence costs incurred as a result of the
increased sedimentation of the Severn basin. This is supported by models showing erosion
caused by increased wave/wind energy on the standing body of water held by the barrage.
His study indicates significantly greater economic costs associated with the rise in flood risk
caused by the very barrage that is supposed to reduce flooding. This risk is, of course, further
exacerbated by the expected sea level rise as a result of climate change.

The Sustainable Development Commission, however, concluded that ‘environmental

concerns and the unknown costs of habitat creation should not hold back the development of a
barrage across the river [Severn]. This is despite the limited carbon savings it would achieve
for its £15bn cost. Indeed, as Friends of the Earth (FoE 2007) point out, £15bn spent upon
other renewable energy technology, such as offshore wind farms, could generate 6TWh of
electricity more than the barrage and save almost three times as much CO2 (ENDS report No.
393, 2007).

The economic argument for the introduction of one or more of these schemes is not proven.
The wide-ranging estimates used to calculate these forecasts create large margins of error.
 113

However, even the best-case scenarios produce forecasts showing large negative NPVs. This
does not make the Severn Tidal Barrage schemes appear cost effective or desirable. Even if
the Government’s desire to achieve renewable energy targets override the initial economic
arguments, when these forecasts are combined with information showing cheaper alternative
methods for renewable energy generation, there seems to be little compelling evidence for
progressing the Severn schemes.

Environmental implications
As the largest and potentially most damaging of all the schemes, the ‘Severn Barrage’ has
courted most controversy. In February 2010, the RSPB highlighted the potential for increased
flooding risk from the barrage. It is also widely acknowledged that the Severn Barrage will
result in significant impact upon the habitat and wildlife of the basin. This, according to the
ENDS report (409, Feb 2009), could extend inland and impact upon saltmarsh habitat and the
ecosystems of the Somerset Levels.

If any of the above mentioned schemes were to go ahead for imperative reasons of overriding
public interest (Art.6(4) Habitats Directive 92/43/EEC OJ L206), then compensatory habitats
would need to be provided (Art.6(4) Habitats Directive). This could result in managed
realignment schemes on an ‘unprecedented scale’ (SDC, 2007). In 2007, the Severn Estuary
and the area surrounding it was put forward by DEFRA as a candidate Special Area of
Conservation (Habitats Directive) (DEFRA 2009). The area is a Site of Community
Importance (SCI) under the Habitats Directive for intertidal and subtidal habitats and
migratory fish species and a Special Protection Area (SPA) designation under the Birds
Directive. These designations place a requirement upon the UK government to take
compensatory measures to ensure the overall coherence of Natura 2000 is protected (Art 6(3)
& 6(4) Habitats Directive 92/43/EEC).

According to the RSPB (2010) the Severn Barrage will result in a loss of intertidal feeding
habitat with devastating consequences for the breeding and overwintering bird populations.
They support the view held by Morris (2008) that La Rance in France is unsuitable for
comparison due to its rocky substrate and agree that environmental data be taken from the
Dutch storm surge barrier sited at Oosterschelde. The sediment budget has been changed
with less water flow washing sediment out to sea. This has resulted in increased siltation up
stream with potential consequences for myriad bird and migratory fish species (van Zanten
and Adriaanse, 2008).
 114

Applicable Legislation.
Environmental protection has not always been the goal per se of the European Union and an
explicit legislative mandate with respect to environmental policy only appeared after the
Single European Act in 1986 (Ginige, T (2002) Mining Waste Part I & II The Aznalcóllar
Tailings Pond failure, European Environmental Law review – 76-88 & 102 – 113). It has been
suggested by some academic that the Treaty of Lisbon, which was agreed in 2009 reinforces
the significance of the environment in the European agenda and the continued influence of
EU policy-making on environmental law. The new Article 3 (3) of the Treaty of European
Union emphasises the protection of the environment as a key part of sustainable development
set in the context of balanced economic growth and price stability intended on ensuring full
employment and social progress. (McEldowney, S & J (2009). This is a very naive
interpretation and it is suggested that an alternative reading of Art 3 (3) of the Treaty of
European Union is that it is indicative of the current trend in the EU of reducing the high
level environmental protection by emphasising the importance by given to economical and
societal issues.

There is no specific legislation that expressly regulates the activities of renewable energy
projects like those proposed in the Severn Estuary either at European Union or at UK level.
There are, however, international, European and UK laws governing environmental and
nature conservation. Applicable legislation, including the OSPAR, Ramsar, EC Habitats and
Birds Directives, EC Water Framework Directive, EC Environmental Liability Directive,
Aarhus Convention and the relevant Public Participation Directive 2003/35/EC and the
Access to Information Directive 2003/4/EC, Marine and Coastal Access Act 2009, is
discussed below.

OSPAR Convention
UK is a signatory to the 1992 Convention for the Protection of the Marine Environment of the
North-East Atlantic (OSPAR Convention), which was signed in Paris in 1992. It has been
ratified by the contracting parties – Belgium, Denmark, the Commission of the European
Communities the European Community United Kingdom of Great Britain and Northern
Ireland, (...). and came into force on 25 March 1998. It is suggested that based on Art.1 of the
Convention, the Severn Estuary and the seas adjacent to it, falls within its remit. (DECC,
2008 Severn Tidal Power – Scoping Topic Paper, Marine and Estuarine Water Quality Dec
2008 by Parsons Brinckerhoff Ltd in association with Black &Veatch Ltd) As such UK has a
duty to: take all possible steps to prevent and eliminate pollution and (.....) protect the marine
 115

area from adverse effects of human activity (Art.2); all possible steps to prevent and eliminate
pollution from land-based sources (....)(Art.3).

Marine & Coastal Access Act 2009 (MCAA)

It is a fascinating bit of draftmanship combining key considerations of protection of the
marine environment, human health, prevention of interference with legitimate uses of the sea,
(s69 MCAA 2009 ) and a strong emphasis on renewable energy(s12) and marine economic
zones (s116 MCAA 2009). It will require a delicate balance being made between
environmental protection and the need to develop a network of renewables to decarbonise the
electricity sector in the fight against climate change, if it is to benefit the natural environment
and the renewables industry.

Ramsar Convention
The Ramsar Convention came into force in 1975. The treaty imposes a general duty on
contracting parties to promote the conservation of wetlands and waterfowl. “Wetland” is
defined in a very wide sense and includes areas of marsh, (....) with water that is static or
flowing, fresh, brackish or salt, including areas of marine water the depth of which does not
exceed six meters. UK ratified the Convention in 1976. In doing so agreed to: designate and
monitor wetlands in its territory including those on the list of most important wetlands -this
includes the Severn Estuary and its surrounding areas (CCW & Natural England (2009)
Severn Estuary SAC, SPA and Ramsar Site: Regulation 33 Advice from CCW and Natural
England, June 2009); draw up a national wetland policy as the key means for delivering “wise
use”; create a database and the promotion of the exchange of information between citizens
and administrative authorities and between the parties to the convention.

It is argued that the convention by interpreting wetland in such a wide manner and
establishing protection duties in very general terms runs the risk of being unenforceable (Bell,
S & McGillivray, D (1997). In the UK all terrestrial areas included within listed Ramsar sites
in England are currently Sites of Special Scientific Interest (SSSI’s) and are legally protected
under the Wildlife and Countryside Act 1981, as amended by the Countryside and Rights of
Way (CROW) Act 2000 and the Natural Environment and Rural Communities (NERC) Act
2006 (DEFRA 2006, Ramsar sites in England - a Policy Statement). One would rightly
assume that with good nature conservation and protection laws in place and sufficient funding
(395 million pounds have been spent since 2000), the natural environment would be protected
to a very favourable level. It seems that the reality could not be further from the truth.
According to the recent National Audit Office Report (National Audit Office, 2008) about a
 116

third of the sites did not have conservation objectives and the quality of the record keeping
was variable. The inherent defects of the Ramsar designation coupled with Natural England’s
track record to date does not bode well for the protect fauna and flora in the Severn Estuary.

Natura 2000
The centrepiece of the European Union’s ambitious Biodiversity Strategy is the Natura 2000
network of European protected sites. The legislation that means to deliver this ecological
network is the Habitat Directive92/43/EEC OJL206/7 on the conservation of natural habitats
and of wild fauna and flora). Once a SAC is placed on the EC Commission list, the Member
State must:
- establish priorities for the maintenance or restoration –Art.4(4).
- management plans which correspond to the ecological requirements of the site –Art.6(1).
- avoid the deterioration of the natural habitats and disturbance of the species –Art.6(2).
- conduct an appropriate assessment of the implication for the site of any project not
directly connected with or necessary to the sites management, but which is likely to have
significant effect on it –Art.6(3).
- undertake surveillance of the habitats –Art.9&11.

The environmental assessment in Art.6(3) is a cause for concern as it is site specific and its
focus is on conservation, rather than the significant effect of the project. (Ginige TA (2002).
Furthermore under the EC Habitats Directive of 1992 it is suggested that there will be a
negative assessment of the project under Art. 6(3), owing to the fact that the scheme will
probably cause the disappearance of between about one-third (at neap tide) and two-thirds (at
spring tide) of the existing intertidal areas, even before consideration of species specific
impacts (FoE,2007).

Another cause for concern is the possibility that per Art.6(4) of the Habitats Directive that a
member state may permit a project with damaging implications for a site to be carried out for
imperative reasons of overriding public interest so long as compensatory measures are taken
to ensure that the overall coherence of Natura 2000 is protected(e.g. habitat restoration)
(Scott, J (1989) pg.112).

The European Court of Justice has confirmed in Castro Verde case (Commission v. Portugal
(Case C-239/04, 26.10.06)), Art. 6(4), as a derogation from Art.6(3) and the general
protection conferred by the Directive, must be interpreted strictly. Article 6(4) reads:” If, in
spite of a negative assessment of the implications for the site and in the absence of alternative
solutions, a plan or project must nevertheless be carried out for imperative reasons of
 117

overriding public interest, including those of a social or economic nature, the Member State
shall take all compensatory measures necessary to ensure that the overall coherence of Natura
2000 is protected. It shall inform the Commission of the compensatory measures adopted.

Article 6(4) of the Habitats Directive makes it clear that the obligation to consider alternative
solutions is upon the Member State. Further more Regulation 62(1) of the Conservation of
Habitats and Species Regulations 2010, SI 2010/490, reads:
“If they are satisfied that, there being no alternative solutions, the plan or project must
be carried out for imperative reasons of overriding public interest (which subject to
paragraph 2 (concerned with priority habitats and species) may be of a social or
economic nature), the competent authority may agree…to the plan or project
notwithstanding a negative assessment of the implications of the site”.

As highlighted by the Castro Verde case, “Solutions”, and the “reasons”/“public interest”
should form the main part of the IROPI test and in the opinion of Advocate General Kokott
(Commission v. Portugal (Case C-239/04, 26.10.06 at 53)
“The absence of alternatives cannot be ascertained when only a few alternatives have
been examined, but only after all the alternatives have been ruled out. The
requirements applicable to the exclusion of alternatives increase the more suitable
those alternatives are for achieving the aims of the project without giving rise –
beyond reasonable doubt – to manifest and disproportionate adverse effects. The
choice requires a balance to be struck between the adverse effect on the integrity of
the SPA and the relevant reasons of overriding public interest. The necessity of
striking a balance results in particular from the concept of “override”, but also from
the word “imperative”. Reasons of public interest can imperatively override the
protection of a site only when greater importance attaches to them. This too has its
equivalent in the test of proportionality, since under that principle the disadvantages
caused must not be disproportionate to the aims pursued.”

Alternative solutions specific to the Severn Tidal Barrage are all manner of technology
capable of producing reliable, low carbon electricity over the long term for the UK. This
would include examination of tidal resources throughout the UK, including both tidal range
and tidal stream resources (Royal Academy of Engineering , 2008). It will also require the
examination of the suitability of other renewable low carbon energy resources. There is an
obligation upon Member States under the Directive to examine alternative sites for the project
(Krämer L., 2009). The competent authorities have to examine the possibility of resorting to
 118

alternative solutions which better respect the integrity of the site in question … They could
involve alternative locations, different scales or designs of development, or alternative
processes. The “zero-option” should be considered too”. (European Commission in the form
of Managing Natura 2000 Sites, published in 2000 at Section 5.3.1). Further more they must
consider if alternative solutions exist or not, and that this consideration “will also include
other alternative solutions that may be suggested by other stakeholders and should not limit
consideration of alternative solutions to those suggested by a project's proponents and that
alternative solutions could be located even in different regions or countries ….” (EC
Commission Assessments of plans and projects significantly affecting Natura 2000 sites
November 2001).

Assuming the UK Government can satisfy the “no alternative solutions” and IROPI tests, the
final hurdle under Art.6(4) is that it would have to “take all
compensatory measures necessary to ensure the overall coherence of Natura 2000 is
protected”. Thus when a competent authority is considering whether habitat or species losses
can be made up by compensation, it must look at two different aspects per Art. 3(1) of the EC
Habitats Directive, i.e. “on the one hand the targeted species and habitats in terms of quantity
and quality, and on the other hand the role of the site in ensuring the adequate geographical
distribution in relation to the range” and be mindful that these criteria are met. (European
Commission. 2007 .Guidance document on Article 6(4) of the 'Habitats Directive' 92/43/EEC
January 2007)

Furthermore all possible mitigation must be addressed before thinking about compensation.
One must not make error of dressing up compensation as mitigation in an attempt to show
that the integrity of the site is not affected, as attempted by Associated British Ports who
sought unsuccessfully with regard to the Dibden Bay Container Terminal. Here the
appropriate assessment was fundamentally flawed in this respect. (Dibden Bay Container
Terminal Inspector’s Report, at para.36.166)

Finally a Member State cannot propose a project under Art.6 (4) which cannot provide a
package of compensation which falls short of being equivalent to that which is lost (European
Commission 2007 at 1.51). It is questionable as to how this might be achieved for the Severn
Estuary when considering amongst other things, the fact that duration of DECC’s 2008
review was too short in comparison with what is considered an appropriated timescale for
such evaluation (Sally A. Keith, et al 2009).
 119

Art.16 of the Habitat Directive states that if no satisfactory alternative exists and the
derogation is not detrimental to the maintenance of the populations of the species concerned
at a favourable conservation status in their natural range, Member States may derogate from
the provisions of Articles 12, 13, 14 and 15 (a) and (b) the article that specify the
methodology required for the species protection. Thus, instead of having a Directive with a
high level of protection for the environment, what we have ended with is one that represents a
dramatic reassertion of member states sovereignty over their natural resources (Scott, J.,
1989). Furthermore there were numerous flaws in the UK transposed, EC Habitat Directive
1992 legislation i.e. Conservation (Natural Habitats, etc) Regulations 1994, (SI 1994/2716).
These flaws included the failure to apply the law fully offshore, the presence of excessively
wide defences permitting harmful acts if they were the incidental results of lawful operations,
inadequate measures for surveillance and monitoring and the absence of procedures to assess
the impact of development plans on designated sites as stated by the European Court of
Justice (ECJ) in the recent case of Commission v UK 2005 ((C-6/04) [2005] ECR I-9017,
[2005] All ER (D) 231 (Oct)).This in turn has led to the revised and consolidated
Conservation of Habitats and Species Regulations 2010, SI 2010/490, which took effect as of
1 April 2010, which should now provide a single source for the law in England and Wales
,conserving the plants, animals and habitats awarded protection at European level
notwithstanding Art 6(4) of the Habitats Directive 92/43/EEC.

EC Environmental Liability Directive

The Environmental Liability Directive 2004/35/CE (ELD) is an EU wide legislation with the
objective of “establishing a common framework for the prevention and remedying of
environmental damage at a reasonable cost to society…” The Environmental Liability
Directive of April 2004 came into force in the UK on 1 March 2009 via the Environmental
Damage (Prevention and Remediation) Regulations 2009. It will apply to “environmental
damage” as defined in Art.2 of the ELD which applies to protected species and natural
habitats under the Birds and Habitats Directives. Therefore, if the government reduces
intertidal range after a properly carried out exercise under Arts 6(3) and (4) of the Habitats
Directive92/43/EEC, that reduction would not amount to “environmental damage” within the
ELD. However, it should be noted that this protection extends only to “previously identified
adverse effects.” If for argument sake all prior investigations do not reveal any adverse effect,
which then emerges during the building of the barrage, then the government may in principle
be liable if the damage was caused either by an Annex III activity (it is suggested that water
impoundments might well be included) or, if caused by a non – Annex III activity, where the
operator was at fault or negligent- Art.3(1)ELD.
 120

Water Framework Directive

The legislation regarding water quality standards are well developed and can be found at
national, European International levels, all covering different aspects( Bell,S 2009). The
Water Framework Directive 2000/60/EC (WFD) is comprehensive and provides a framework
that classification of water bodies: the setting of objectives and the monitoring of achievement
as well as identifying what means are required to maintain energy improvement in water
quality requiring that all inland and coastal waters achieve “good status” by 2015
(McEldowney, S., & J., 2009) and it includes “transitional water bodies” or estuaries. The
physical and hydrological characteristics of the Severn Estuary support a wide variety of the
species; giving consideration of depth variations, the structure and condition of intertidal
zones, flow, currents and wave exposure all of which including the water quality status will
be affected by a tidal barrage. The Environment Agency( EnA) has made it clear that the
Cardiff-Weston barrage would make it impossible for the UK to be in compliance with the
WFD by 2015. (Environment Agency, 2010)

The possibility exists that a Severn tidal power scheme may change the components that
define the status of the transitional and coastal water bodies in the river basin, and may alter
some freshwaters too. Perhaps the question we need to ask, is whether the river system, its
sediments and components may be altered drastically further up river by a barrage system? To
answer that question we may need to study the effects that the Petitcodiac causeway in
south-eastern New Brunswick, Canada had on the Peticodiac river instead of La Rance in
France( Sentinells Petitcodiac Riverkeeper. 2010).

Aarhus Convention
The dialogue between the government and the public i.e. what in the UK is known as public
participation which “has been pointed out as being limited by consultant institutions and
their commissioning bodies pre-framing issues, publics and consultations themselves. This
has led to consultations labelled moribund, tokenistic and even deceptive”(Gerlach, J. 2008).
This lack of dialogue between the government and individual citizens with regard to the
Severn Tidal Barrage is another of the many indication of the glaring problems that exist with
regard to the application of the Aarhus Convention in the UK (UKELA 2008). This is not
surprising given that, historically, excessive secrecy has been the hallmark of UK’s approach
to sharing of environmental knowledge with its citizens (McEldowney, S., & McEldowney,
J., 2009). The rights afforded by the Aarhus Convention i.e. access to information; public
participation in decision-making; and access to justice were further strengthen by the
 121

following EC directives -EIA Directive 85/337/EEC as amended by 97/11/EC and Public

Participation Directive 2003/35/EC; IPPC Directive 96/61/EC and as amended by the Access
to Information Directive 2003/4/EC.

These rights should be regarded as minimum requirements that operate as a minimum

standard rather than an optimum level to be attained; a floor, not a ceiling. Articles 3(5) and
(6) state that the Aarhus Convention provisions:
shall not affect the right of a Party to maintain or introduce measures
providing for broader access to information, more extensive public
participation and wider access to justice than required by [the Convention] ...
and shall not require any derogation from existing rights.

The government considers that since the introduction of new Environmental Information
Regulations 2004 (SI 2004/3391) (the Environmental Information Regs. 2004), that the UK is
Aarhus compliant. It is suggested that we apply the letter and spirit of the law.

The proposed Severn Tidal Barrage ought to provide the government with the prime
opportunity to engage the public meaningfully and to instigate this debate according to a
reconfigured geography of more deliberative, inclusive consultation. Without precedent and
with the socio-ecological stakes so high, the government cannot afford not to consult the
public on the issue”(Gerlach, J. 2008).

Conclusion
The centrepiece of the European Union’s ambitious Biodiversity Strategy is the Natura 2000
network of protected sites, under the EC Habitats Directive 92/43/EEC. The environmental
assessment in Art. 6(3) is a cause for concern as it is site-specific and its focus is on
conservation rather than the significant effect of the project. Another cause for concern is the
possibility per Art. 6(4) that a Member State may permit a project with damaging implications
to be carried out for reasons of overriding public interest so long as compensatory measures
are taken to ensure that the overall coherence of Natura 2000 is protected (e.g. habitat
restoration).

The fundamental issue, therefore, remains unresolved. Are we now at the stage where
‘imperative reasons of overriding public interest’ covers all climate change mitigation
development?
 122

Although this paper has focussed upon a significant proposed development in the form of the
Severn Tidal Barrage, it applies equally to any development designed to combat the, as yet
unknown, effects of climate change. Is this not akin to marching into an area of pristine
Brazilian rainforest, chopping down trees and putting wind turbines in their place? The
protection afforded to the Severn River basin is on a similarly national, European and
international level. Is the legacy of this development to be the irrevocable loss of this
ecosystem?

Essentially, if this project can go ahead with the acknowledged significant environmental
impacts, then it could represent the future benchmark for other developments. The door will
be opened for development anywhere in England and Wales that mitigates climate change, to
be allowed to proceed no matter what statutory protection is in place.

In addition, the balancing of conflicting interests inherent within this scheme need to be
supported by a scientific study of the environmental impact, an economic study of the NPV
and a social study into the pros and cons of this barrage. All three elements need to be
sufficiently robust to truly enable the balancing of conflicting interest to take place. Restraint
from the current ‘eyes wide shut’ headlong rush into climate change mitigation is needed to
fully appreciate the consequences of the development. As Aronson (et al. 2006) suggest
‘Ecologists and economists working together with NGOs, community leaders and
governments, may help forge a way forward with a new paradigm: ecology as if
people mattered; economics as if nature mattered.’

The implementation of the new EC laws incorporating the Aarhus Convention Principles will
require the development of new relational capacities both between social agents, in the form
of learning how to collaborate and understand others roles and capacities differently, and
between social-ecological systems (Pahl-Wostl, et al. 2008). New institutional arrangements
will also be required to facilitate the more sustainable relationships, based on new framings of
the issues at stake and agents involved. This will necessitate the development of new
identities, as well as institutions and individual capacities that are more socially and
environmentally robust with the common goal of sustainable nature conservation. Without
this debate, there can be no balancing of conflicting interests and, thus, no sustainable
development.

Alder and Wilkinson (1999) take the view that:

 123

‘Decision makers sometimes have to sacrifice one good for another greater good. The
broader our area of environmental concern the more difficult becomes the balancing
act’ (Alder, J. and Wilkinson, D. 1999).

However, the current situation would suggest that climate change mitigation represents the
‘trump card’. Thus the paradox remains: the damaging impact to the environment caused by
development designed to mitigate the damaging impact to the environment. Only by
addressing this paradox can development for climate change mitigation be undertaken with
‘eyes wide open’ and consequences accepted and balanced.

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Assessing the roles of regulation, litigation, management and

environmental advocacy in protecting groundwater resources
Robert W. Schultz1, Donald C. Daniels1, and Thomas F. Vandenburg2
1
AMEC Geomatrix, Inc., 2101 Webster Street, 12th Floor,
Oakland, California, 94612, USA
2
Dongell Lawrence Finney LLP, 707 Wilshire Boulevard, 45th Floor, Los Angeles,
California, 90017, USA.

Email: [email protected]; [email protected];

[email protected]

Abstract:
As a society, we em ploy a variety of m ethods to protect groundwater resources. We
regulate industrial activities to ensure pr oper m ethods are used to avoid releases of
hazardous m aterials to the enviro nment. If a release of contam inants occurs o r has
already occurred, we closely regulate rem ediation of the contam inants, and we may
institute litigation either to recover costs spent or to ensure adequate cleanup.

We manage our ground water resources for th eir protection and long term sustainability
by m onitoring groundwater conditions, m itigating con tamination of water sup ply
aquifers, in stituting co nservation program s and utilizing storage so lutions. Fin ally,
environmental advocacy, including: rais ing public awareness about groundwater
contamination; educating business leaders and elected officials on su stainability issues;
and securing public funds to protect groundwat er resources is an i mportant method of
groundwater protection. Protecting groundwater resources is challenging. Significant
financial resources, both public and private, are required, as well as a firm commitment
to this goa l by all segments of society. This pa per will ana lyze the interplay be tween
these dif ferent elem ents used to protec t groun dwater reso urces, and will discus s the
efficacy and proper roles of environmental advocacy, litigation, regulation, management
and education in this effort.

Keywords:
CERCLA, Contamination, groundwater protection, litigation, water supply.

1 Introduction
Safe, reliable drinking water supplies are cr itical to public health and econom ic growth
(UNDP 200 6). In the United States, expansi on of surface water supplies is lim ited in
many areas by the en vironmental im pacts of surface w ater develo pment projects,
limited existing water storage c apacity, and the high cost, both financial and
environmental, of expanding surface wate r storage. Consequently dem and for
groundwater is increasing. Gr oundwater resources, how ever, can be particularly
vulnerable to degradation.
 131

For groundwater to be a reliable source of dr inking water, we as a society m ust take

actions to equitably m anage the risks and costs of conta mination. Our overarching
needs include protection of drinking water aquifers from future contam ination;
implementation of treatm ent and managem ent strategies that allow continued operation
in areas with im pacted groundwater; and id entification of new groundwater resources,
including restoration of impacted aquifers or areas.

In this paper, we present five m ethods used to protect groundw ater resources, with
examples taken predominantly from Californi a, where the a uthors are practitioners in
the groundwater protection and cleanup field. Groundwater in California and the United
States (US) is typically m anaged by m unicipalities or local governm ent agencies and
frequently extracted and delivered to cons umers by sister agencies within th e local
governments or through a public-private partnership between the local agency and a for-
profit water com pany. US federal law m akes no distinction betw een historical and
recent contamination in cost allocation or cleanup requirements.

To protect the groundw ater resources, local agencies in Califo rnia play a m ajor role in
advocating the public benefits of water pro jects. Advocacy has enabled m any agencies
to secure public funding for groundwater resource m anagement and for cleanup of
contamination. Litig ation is ano ther common method, and is frequent ly used to draw
attention to problems and to obtain funding from those who can pay. Regulation is used
to deter future contam ination and to oversee the contam inant cleanup process. W ater
agencies and purveyors may also educate the pu blic they serve to increase awareness of
the im portance and vulnerability of groundw ater resources. And finally, groundwater
management is used as a means of sustainably using the resource. After presenting each
method, we consider the comm on shortcom ings and successes of each protection
element.

2 Advocacy: State Funded Cleanups and State Assurance Funds

Successful local water agency, or other st akeholder, advocacy for public funding can
obtain funding that is directly pu t toward solving water quality problems. Recent public
funding of water resource projects in Ca lifornia has typically been through bond
propositions approved by voters in statewide general elections. State assurance funds,
also called “cleanup funds,” are another means for providing direct funding of
groundwater protection projects. Financing of assurance funds can include private
sector funding, for example m atching funds m ay come from private party stakeholders
as opposed to the involved public agencies that frequently co ntribute to direct publicly
funded projects.

2.1 California Examples of Groundwater Protection Bond Propositions

California maintains a vast network of intra- and inter-state canals and dams to transport
and store su rface water supplies fro m the Sacr amento-San Joaquin Delta, the Colorado
River and other water bodies, yet the State also relies heavily on groundwater. Between
approximately twenty and forty percent of the State’s water suppl y com es from wells
(LAO, 2010). Recent b ond m easures have in cluded funding for groun dwater pro jects
and, m ore specifically, groundwater prot ection. Propositions 50 and 84 are key
examples.
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2.1.1 California Proposition 50

California v oters appro ved the W ater Secu rity, Clean Drinking W ater, Coasta l a nd
Beach Protection Act (Proposition 50) in 2002. The stated intent of this proposition was
to provide a safe, clean, affordable, and suff icient water supply to m eet the needs of
California residents, farms, and businesses. Through the development of annual priority
lists, Propos ition 50 has funded local and reg ional projects in each of the three past
funding years. In 2009, Proposition 50 provided $75 million for groundwater protection
projects.

2.1.2 California Proposition 84

In passing The Safe Drinking W ater, Water Quality and Supply, Flood Control, River
and Coastal Protection Act of 2006, the St ate’s voters approved $1 billion for a
combination of water delivery infrastructure and groundwater protect ion. Of this total
amount, $60 m illion was set aside for groundwater co ntamination prevention and
reduction projects. Example projects on the first round project priority list included
several wellhead treatm ent pro jects and a gr oundwater rem ediation project in the Los
Angeles Basin.

2.1.3 The Safe, Clean, and Reliable Drinking Water Supply Act of 2010 (SBX7)
This landmark ballot proposition was passed by the California legislature in early 2010;
and was scheduled to go to the voters in November 2010 ; however, on June 30, 2010,
the ballot proposition was pushed back to 2012. Voter approval of this bond is
uncertain a t this tim e; however, two-thirds of the legislatu re, rep resenting b oth
democrats and republicans, voted for the bond to get it on the ballot. This massive water
bill would put ove r $1 1 billion to ward a ddressing m ultiple wate r sup ply is sues. It
includes approximately $1 billion for groundwater quality protection and cleanup.

2.2 Examples of State Assurance Funds

Assurance f unds are another example of direct funding of groundwater protection
projects. Most assurance funds are financed by assessi ng fees on the industry that
resulted in the contam ination. In thes e program s, parties responsible for the
contamination (Potentially Responsible Part ies, or PRPs) manage or conduct the wor k
and are reimbursed for certain costs.

2.2.1 Petroleum Underground Storage Tank (UST) Cleanup Funds

The most prevalent type of assurance fund for groundwater cleanup in the United States
are comm only called “UST Funds,” and provi de PRPs cost recovery for petroleum
underground storage tank (UST) cleanups. In 1996, there were 34 state UST funds
approved by the United States Environmental Protection Agency (USEPA). The number
had increased to 37 in 2005, and at the time of writing, the USEPA website identified 43
such funds (USEPA, 2010).

Total funding available through assurance funds can be significant. The California UST
Fund provided $190 million for cleanups in FY2008-2009, and between $200 and $300
million in each of the seven preced ing years (S joberg Evas henk, 2010). Nationwide,
state assurance funds have spent over $5 billion on UST cleanups over the past 10 years
(USEPA, 2010).
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2.2.2 Dry Cleaner Cleanup Funds

Tetrachloroethene (PCE) has been used in dry cleaning operations worldwide, and the
majority of PCE used in the Unite d States for the past 30 years has been by the dry
cleaning industry (CVRWQCB 1992). PCE is the second m ost frequently detected
volatile organic com pound (VOC) in groundw ater (USGS, 2006). To respond, thirtee n
states have m andated programs and provided f unding for dry cleaner site rem ediation.
The Florida dry cleaner fund was open for application from 1996 until 1998, and over
1,400 sites were entered into the program . To date 129 of those sites have been cleaned
up and received rehabilitation completion orders (SCRD, 2010).

2.3 State Funded Cleanups: Common Successes

State-funded cleanups dem onstrate a num ber of advantag es over litigation and/or
regulatory enforcem ent. Unlike other groundw ater protection strategies, public funds
can be put quickly and directly toward cleanups. In many instances, taxpayer investment
in groundwater cleanup can be recovered after- the-fact. This approach reduces the time
period to cleanup or containment of groundwater contamination, and by determining the
cost of a groundwater cleanup up front, can reduce the costs and risks of cost-recovery
litigation. Moreover, state cleanup funds provide for a type of public-private partnership
on cleanups, with the associ ated opportunities for innova tion and cost-com petition.
PRPs are incentivized by stat e cleanup funds to cooperate with regulatory oversight
agencies and water agencies to protect groundwater.

2.4 State Funded Cleanups: Common Shortcomings

Despite the efficiency and other advantag es to groundwater protection, voters in the
current political clim ate may not be recep tive to new taxes. Further, not all “polluting
industries” can be realistically funded thr ough fee-based system s; drycleaners are a
prime example. PCE groundwater contamination from drycleaners is very expensive to
cleanup, but the revenue associated with a t ypical independent drycleaning operation is
very modest. Conversely, petroleum funds have been successful in part because the fees
set aside to fund cleanups generally amount to less than one percent of the retail cost.

2.5 Opportunities to Maximize Results

Within the current publicly funded cleanups in the United States, there are opportunities
for stakeholders to increase th e res ources put toward groundwater protection and to
maximize the overall protection afforded by a groundwater project. Regulatory agencies
can be encouraged to oversee cleanup of priority sites. Fe e-based state assurance funds
could be expanded to cover other high-revenue “polluting industries.” Nitrate is
arguably the m ost pervasive and threaten ing groundwater contam inant in California
today, and hundreds of thousands of m etric tons of nitrogen are sold in fertilizers each
year. In California, the com bination of public funding for cleanup with other water
infrastructure projects has pr oved to be a politically feas ible m eans of funding water
resource protection projects.

3 Groundwater Protection Litigation

The United States Co ngress p assed the Comprehensive Environm ental Response,
Compensation, and Liability Act (CERCLA), in part, to allow parties which pay for
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remediation of hazardous m aterials to rec over those clean up costs from “responsibl e
parties”. U nder CERCLA, a party which in curs cleanup costs can recover those costs
from four categories of parties: Owners of “facilities” from which hazardous materials
are rele ased; oper ators of f acilities f rom whi ch hazardo us m aterials are re leased;
transporters of hazardous m aterials to fac ilities from whi ch they are released; and
“arrangers” of the disposal of hazardous materials from a facility1.

Entities which have rights to use groundw ater have often sued under CERCLA to
recover “response costs” associated with cleanup of conta minated groundwater, or have
sued for a Court Order requiring a PRP to cleanup groundwater contamination.

The phenomenon of m ethyl-t-butyl ether (MTBE) groundwater contamination led to an

evolution of legal theories concerning such claim s. Instead of suing i ndividual gas
station operators who allege dly allowed gasoline contai ning MTBE to leak from
underground storage tanks, suits were brought against the oil co mpanies whose product
– gasoline – contained the contam inant. This litigation culminated in 2008 with one of
the largest environm ental settlem ents in Un ited States history worth more than $422
million (AP, 2008).

The legal theory for the MTBE suits was “s trict product liability” which is comm only
used for defectively manufactured or desi gned products which ei ther cause personal
injury and/or property damage. In part due to the success of the MTBE litigation, these
theories are now being used in cases invol ving agricultural produc ts (soil fum igants)
and PCE used in the dry cleaning industry.

3.1 City of Lodi Action

The City of Lodi Action is a cautionary tale regarding a local city which passed its own
statute which was patterned after CERCLA but went even further in allowing the City to
recover its costs for remediation.

PCE groundwater contamination was discovered in the City of Lodi in t he early 1990s.
In 1997 the City of Lodi executed an agreem ent with the State of California regarding
investigation and abatem ent of that groundwat er contam ination. Three m onths later,
City of Lod i enacted “MERLO” a m unicipal ordinance w hich gran ted the C ity wide
powers concerning the recovery of its cleanup costs for P CE groundwater
contamination.

Two insurance companies filed suit to prevent City of Lodi from enforcing the terms of
MERLO against com panies they in sured. Lengthy and expensive litig ation f ollowed.
The Federal Court issued a series of ruli ng which decim ated City of Lodi’s position,
finding that MERLO wa s preempted by Federa l Law and th erefore unenforceable and
the City of Lodi itself was a “PRP” due to PC E releases from its sew er sys tem. The
City not only found itself facing significant lega l bills but also owed a Wall Street Firm
$16 million for litigation costs2.

1
See generally 42 U.S.C. 9601 et seq.
2
See generally Fireman’s Fund Insurance Company, et al. v. City of Lodi, 296 F.Supp.2d 1197
(E.D.Ca. 2003)
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The case rem ains the “poster child” of cautionary tales concerning groundwater
contamination litigation

3.2 MTBE Litigation

In the United States, MTBE was added to gasoline, in varying amounts, fro m
approximately 1979 through 2007. W hen gaso line containing MTBE was stored i n
underground storage tanks at gas stations , leaks occurred which led to groundwater
contamination. MTBE is considered a drinking water contam inant and the US
Environmental P rotection Agency (EPA) st ates that M TBE is a potential hu man
carcinogen.

Significant MTBE groundwater con tamination litig ation was brought throughout the
United States during the years of 1995 to 2008. The cases were brought against the oil
companies which sold the gasoline, not the “m om and pop” gasoline station operators.
These case s were conso lidated in th e Multi-Dis trict Litigation Federal Court in New
York which was established to handle mass tort litigation.

In 2008 a partial settlement was reached in wh ich a number of defendants agreed to pay
at leas t $42 2 m illion d ollars to 15 3 public wate r provid ers to settle their liability for
MTBE groundwater contam ination. Subseque ntly, a party notably absent from this
settlement, ExxonMobil, was hit with a ju ry v erdict of $105 m illion in an MTBE
groundwater contam ination case brought by th e City of New York. Soon thereafter,
ExxonMobil settled 50 MTBE lawsuits for $17.5 million (Rita Cicero, 2009).

3.3 TCP Litigation

Starting in approxim ately 2004 there have been 13 cases filed in California concerning
groundwater contam ination of a chem ical called trichloropropane (TCP). TCP
allegedly was an im purity in soil fum igants manufactured by Dow Chem ical and Shell
Chemical Company. The cases filed have alleged that TCP contamination from these
products has i mpacted groundwater resources affecting 13 different water purveyors in
California.

The first of these cases went to trial in January 2010, solely against Shell Chemical
Company. In May 2010 the trial resulted in a defense verdict 3. The Court is now
addressing motions concerning the scheduling of trials for the remaining matters.

3.4 Litigation against the Dry Cleaning Industry

Another approach has been taken by Califor nia W ater Serv ice ( “Cal W ater”), a wa ter
purveyor with 14 different subdivisions throughout California. Cal W ater asserts that it
owns over 200 production wells which have been contam inated by P CE, which Cal
Water asserts has resulted from dry cleaning operations near their wells. Cal W ater has
sued 58 defendants for this contam ination4. Cal W ater has s ued the manufacturers and
distributors of solvents used in dry cleaning operation s a nd m anufacturers and

3
City of Redlands, et al. v. Shell Oil Co. et al., JCCP 4435, San Bernardino Superior Court
Case No. SCVSS120627
4
California Water Service Co. et al. v. Dow Chemical Corp. et al., San Mateo Superior Court
Case No. CIV 473093
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distributors of dry cleaning equipment, alleging that these parties are responsible for this
contamination and should be held liable for resulting damages and/or cleanup costs.

3.5 Efficacy of Groundwater Litigation

It is difficult to quantif y the efficacy of groundwater litig ation. It is undoubtedly an
expensive enterprise. Critics of the tort syst em in the United States have estimated that
50-57% of the total m onies awarded in tort litigation are absorbed by transaction costs,
legal fees and court costs (Cody, 1997). Might groundwater litigation result in a similar
percentage of recovery?

Every success story can be offset by a story of setbacks. The City of Lodi is a
cautionary tale. The nearby City of Modesto also pursued novel legal theories regarding
PCE groundwater contam ination and obtained a m uch better result that its neighbor.
Press reports assert the City’s recovery to be over $41 million (Ashton, 2009). The City
of Modesto likely considers it s groundwater litigation to be a success, although that
litigation las ted over 10 years. MTBE litigatio n is certa inly considere d a success by
those p arties tha t f iled suit. The jury is s till out ( literally) on TCP and PCE / dry
cleaning litigation.

The preventative effect of groundwater litigation is open to debate as well. Many of the
cases concern actions and/or decis ions m ade decades ago. Jury verd icts in th e 2 1st
century can little effect upon decision makers of the 20th century.

Groundwater contamination cases appear to be growing in scope. Entire industries are

now being sued as water purveyors appear to be seeking “economies of scale” for su ch
lawsuits ra ther than litigation on a site by site basis. These suits are pushing the
envelope of established legal theories and are causing a fusion of two areas of law:
environmental law and products liability la w. How that fusion will mutate and /or
evolve remains to be seen.

4 Regulation: Resource Protection and Cleanup Oversight

PRP-funded cleanup under an adm inistrative order is probably the m ost common
framework for groundwater cleanup in the United States. Regulation of potentially
polluting industries helps to lim it or preven t new releases. Regulated site data is
publicly availab le in m any cases. The availab ility of site d ata c an se rve to incr ease
public scrutiny thereby encouraging compliance, and it can be helpful to water agencies
and other groundwater uses in assessing threats and improving planning. In many cases,
regulatory oversight also serves to confirm the completeness of a cleanup.

Unfortunately, regulatory oversight of clea nups rarely decreases, and frequently

increases, the time required to perform site investigation and implement remediation. In
most cases, an incentive is necessary for a PRP to quickly address a groundwater quality
problem. Assistance from those involved in the use of a gr oundwater basin is
frequently necessary to put understand the context of a groundwater problem . At too
many sites, effort is expended sam pling or cleaning up groundwater contam ination that
does not threaten regional resources. Conversely, samples are frequently not collected in
 137

locations where a regional problem could be detected becau se of the focus on site-s cale
cleanup.

The results of our review suggest that the groundwater protection benefits of regulation
can be enhanced when stakeho lders assum e an activ e ro le. Identi fication of areas of
increased vulnerability and evaluation of the re lative m agnitudes of the groundwater
contamination sites in a basin by a water agency, for exam ple, can help a cleanup
oversight ag ency to prio ritize its workloa d. By publicizing or otherwise encouraging
public awareness of groundwater problem s, water agencies and other stakeholders can
create a public relations incentive (or disin centive) that encourages groundwater
protection.

5 Management of Groundwater Resources

The long term viability of groundwater as a resource requires sustainab le management
of both the quantity and quality of the reso urce. The United States Geological Surv ey
defines sustainable groundwater m anagement as “the developm ent and use of
groundwater in a m anner that can be m aintained for an inde finite time without causing
unacceptable environm ental, econo mic, or soci al consequ ences” (Alley et al., 19 99).
Management involves monitoring and trackin g of the resource, wellhead protection,
contaminant m itigation, im plementation of conservation m easures, and utilizatio n of
groundwater storage.

5.1 Groundwater monitoring

A funda mental elem ent of groundwater m anagement is monitoring of groundwater
resources including both quantit y as indicated by groundwater elevation and quality as
determined by analysis of groundwater sam ples. In California, m onitoring is performed
under various program s. In 2000 California created the Groundwater Monitoring and
Assessment Program (GAMA), which was expanded in 2001 by the Groundwater
Quality Mo nitoring Act. Monito ring involves analysis of a broad su ite of organic and
inorganic chem icals in groundwater basins ac ross the state. The resultant data are
maintained in a GAMA database, which is available online.

More recently, as a component of a five bill water and g roundwater legislation package
enacted in 2009, Chapter 1 of SBX7 is dedi cated to groundwater and includes statewide
monitoring and reporting requirements to be implem ented by local agen cies. Originally
slated to be on the November 2010 ballot, the SBX7 package has recently been pushed
back to 2012 due to the current fiscal climate in California.

5.2 Wellhead protection

The cost of m itigating groundwater contamination is sign ificant frequently resulting in
abandonment of an otherwise useable aquif er. A fundam ental com ponent of
groundwater m anagement is the protection of aquifers through wellhead protection to
avoid degradation of the resource. Wellhead protection inv olves: th e identif ication of
sensitive recharge areas within a gro undwater basin where surface releases could leach
to underly ing groundwater resou rces or flo w to surface waters th at interact with
groundwater; the iden tification of threats su ch as industrial facilities and agricultu ral
 138

areas; and the m itigation of those threats th rough adm inistrative an d engineering
controls such as stormwater management and restrictions on pesticide use.

5.3 Contaminant mitigation

Due to ind ustrial and agricu ltural activ ities, m any aquifers have been im pacted by
various chem icals at concentration s exceed ing drink ing w ater standar ds. As a re sult,
existing wells have often been shutdown a nd unexploited aquifers have been left
undeveloped. To address this issue and br ing these resources in to production, water
purveyors have incorporated a variety of approaches to meeting water quality standards.

5.3.1 Wellhead treatment

One approach is to effectively treat impacted water on demand by engineering an inline
treatment system at th e wellhe ad. W ater exiting the well is approp riately tr eated
depending on the nature of the groundwater contam ination. In the case of volatile
organic compounds, the water may pass through an air stri pper or through activated
carbon to remove the contam inants. For other compounds, tr eatment may involve flow
through an ion exchange colum n to replace harmful chemicals with innocuous ones. In
many instances, wellhead treatm ent is a co st effective method to m itigate groundwater
impacts when compared to in situ remedial alternatives focused on rem ediating impacts
within the a quifer. In Calif ornia, any we llhead trea tment prior to dir ect potab le u se
requires a permit from the California Department of Public Health (CDPH).

5.3.2 Groundwater blending

Similarly, in impacted areas wher e wells ar e screened in multip le aquifers or m ultiple
wells are present within a wate r supply system, water pu rveyors will blend water from
multiple zo nes within a well, f rom multip le wells, o r f rom a com bination of
groundwater and other water sou rces such th at the resultant water is acceptable f or
distribution.

Water purveyors extracting contam inated groundwater may also combine wellhead
treatment with blending as is the case in the North Hollywood Operable Unit of the San
Fernando Superfund Area, where extracted gr oundwater is treate d by air stripping and
granular activated carbon prior to blendi ng with water imported from outside of the
groundwater basin (MWD, 2007).

5.4 Water Conservation

A funda mental com ponent of groundwater management is the overarching issue of
water conservation regardless of the source. Any reduction in dem and will decrease the
need to exploit additional groundwat er resources. Although per capita w ater
consumption in California has decreased over time primarily due to improved efficiency
in agricultural water us e, the overall dem and for water continues to increas e due to
increases in the state’s overall population (UCAIC, 2009). Given that large scale public
works projects have fallen out of favor due to cost and environmental im pacts,
additional conservation measures are necessary to meet this growing demand.

During drought years, local ag encies often require a redu ction of urban water use;
however, generally, per capita water use in the urban environm ent has increased over
 139

time. The most significant reductions in water demand can be made in agriculture due in
part to the fact that agriculture accounts for such a large percentage of overall water use.
Such reductions could include further adopt ion of m icro-irrigation techniques and a
reduction or phase out of water intensive agri culture in Calif ornia. In addition to oth er
elements, water conservation is a significant component of SBX7 th e recently enacted
package of water bills currently scheduled for the 2012 ballot.

5.5 Groundwater storage

There is a growing appreciation for the va lue of water and the need to develop a
sustainable model f or use of this resource. In addition to concerns regarding quality of
groundwater, there are concerns regarding the growing demand for water, es pecially in
arid areas such as the western United States . To this end, groundwater basins are being
viewed more and m ore as an altern ative means of storing water. This is especially true
in the western United States where essentially all rainfall occurs in th e relatively cool
wet season, while water demand peaks during the hot dry season.

5.5.1 Spreading grounds

Recharge of aquifers has been a key com ponent of water m anagement in southern
California since the 1940s. Los Angeles Count y Department of Public Works operates
the Hansen Spreading Grounds in Sun Valley, which consist of a 105 acre recharge area
below Hansen Dam that is designed to allow surface water to infiltrate at up to 49 cubic
feet per second to the unde rlying aquifer (MW D, 2007). Th e spreading grounds have a
recharge capacity of approxim ately 35,000 acre feet of water. The five such spreading
grounds within the Upper Los Angeles River Area, a total of re charge capacity of
approximately 105,000 acre feet per year. In some instances, recharged water come s
from other sources outside of the basin.

5.5.2 Recycling/reuse
In addition to recharge o f surface waters v ia spreading grounds, water is also reclaimed
through infiltration or direct injection of tr eated wastewater. The degree of treatment
required is generally dependent on the source of the water, the proposed reuse of the
water, and the method of recharge.

Due to concerns regarding potential degr adation of groundwater resources, state s

regulate the recharge of gr oundwater aquifers with recl aimed water. These state
regulations and guidelines vary considerably as a function o f intent; while som e states
such as Arizona, California, Colorado, Flor ida, North Carolina, and W ashington focus
on the reuse of water, other states are prim arily focused on recharge as a m eans of
disposal of wastewater following acceptable treatment. (Stone Environmental, 2005).

In California, recycling and reuse of wate r by recharge of groundw ater aquifers is

jointly regulated by the CDPH and the Stat e Water Resources Control Board through a
1996 m emorandum of understanding (CDPH and SWRCB, 1996). The CDP H
developed draft regulations in 2008 regarding recharge of recycled water, which
establish criteria for recharge. T he regul ations require that m inimum treatm ent
standards be applied, no degradation of gr oundwater occur, rechar ge be conducted in a
manner that allows sufficient residence tim e in the aquifer prior to reextraction, and
 140

ongoing m onitoring be conducted between the recharge location and the point of
extraction (Walker, 2009).

5.5.3 Saltwater intrusion

In addition to increasing water storage, r echarge can be used to protect groundwater
basins from intrusion of non-potable water into an otherwise pot able resource through
focused hydraulic control at the point of in trusion. In many areas along the western side
of Los Angeles and Orange Counties, lo w p ermeability fault system s protect ov er
pumped aquifers from salt water intrusio n; however, where the faults h ave b een
compromised due to erosion, salt water can enter the groundwater basin threatening the
viability of the aquif er. To m itigate this threat, water is inje cted in the v icinity of these
compromised areas to mound water and revers e the groundwater gradient effectively
pushing the salt back seaward.

6 Groundwater Protection through Education

There are two funda mental purposes to educ ating stakeholders on issues related to
groundwater protection. Firstly, education provi des stakeholders including the business
community, agricu ltural interes ts, politica l leaders and the public with critical
information that will help them understan d the im portance of protecting groundwater
resources. Especia lly in Calif ornia, there is general in terest in is sues related to
sustainability and clim ate change; however, the association of groundwater protection
with these broader issues is limited. Stakeholders are more likely to be willing to invest
in methods to protect groundwater if they ar e aware of the im portance of this resource
in a broader environm ental context. For inst ance, as a sustainab ility m easure, water
conservation has the benefit of reduci ng groundwater extraction and increasing
residence times for contaminants moving through im pacted aquifers, which reduces the
spread of contam inants and m ay allow fo r increased biodegradation of contam inant
plumes. Re garding clim ate change, m any stakeholders do not associate water
conservation with clim ate change; h owever, due to the significant energy consum ption
required to obtain, treat, and di stribute water, water conservation can have a significant
impact on the reduction of greenhouse gas emissions.

Secondly, from a pragmatic persp ective education is a critical tool to ensure awareness
of the responsibilities that various stak eholders have rega rding protection of
groundwater resources. For instance, outreach to the agricultural community is critical
to implementing water conservation. Specific act ivities as well as lifestyle choices have
an im pact on groundwater resources. The m ore aware the public is on this issue the
more likely these impacts can be limited.

7 References
Alley, W . M., Reilly, T. E. & Franke, O. L., 1999. Sustainability of Groundwater
Resources. US Geol. Survey Circular 1186, Denver, Colorado, U.S.A..
http://water.usgs.gov/pubs/circ/circ1186
Ashton, Adam, 2009. Modesto Awarded $18 Million in Groundwater Lawsuit. Modesto
Bee, May 20.
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Associated Press, 2008. Most Oil Companies in MTBE Lawsuits Settle, May 9.
California Departm ent of Public Health and State W ater Resources Control Board,
1996. Memorandum of Understanding between th e Department of Health Services
and the State Water Resources Control Board on Use of Reclaimed Water, February.
Ca