Environment Law Bulletin - Institute of Environmental Management ...

complete removal of a hedgerow couldamount to ‘proper management’ for thepurposes of regulation 6(1)(j). That regulationcontemplated the removal of ‘anyhedgerow’, if required for the propermanagement of ‘the hedgerow’. As it didnot distinguish between removing some orall of the hedgerow, the regulation didencompass the possibility that completeremoval could amount to proper managementof a hedgerow. This interpretation didnot provide a mechanism for the circumventionof the Regulations. In this case, ithad been concluded, on the basis of theevidence presented to the justices, thattotal removal of the hedgerow wasrequired for its proper management. Theappeal was dismissed.(Conwy County Borough Council v Lloyd, [2003] All ER(D) 11, 3 February 2003)Environmental impact assessmentPlanning permission for the erection of 407residential units on a contaminated site wasgranted by the Secretary of State on appealwho decided that environmental impactassessment (“EIA”) was not required and“The claimant brought a claim in nuisance fordamage caused to his land by the flood and sought adeclaration that the defendants had no right todischarge water onto his land.”that the necessary remediation work couldbe dealt with by attaching appropriateconditions to the permission. This decisionwas challenged under section 288 of theTown and Country Planning Act 1990 by alocal resident who was concerned aboutthe land contamination and the lack of anEIA. He argued that the Secretary of Statehad misdirected himself in law by havingregard to potential remediation measureswhereas The Town and Country Planning(Assessment of Environmental Effects)Regulations 1988 suggested that the focusought to be on likely significant environmentalimpact. The application was allowedby the High Court which held that an EIAshould have been conducted before thegrant of planning permission. The site inquestion required extensive remediationwithout which there would be likely to besignificant environmental effects. The 1988Regulations required the provision of separateinformation on likely environmentaleffects and measures to reduce or remedythose effects. The Secretary of State hadbeen wrong to take the remediationproposals into account when decidingwhether the development was likely tohave significant environmental effects andtherefore require EIA. Instead, he shouldhave first decided that there were significantenvironmental effects and that an EIAwas necessary and then determined thesuitability and effectiveness of the remediationmeasures as part of the EIA procedure.The decision was quashed.(Gillespie v First Secretary of State and Another, [2003]EWHC 08 Admin, 20 January 2003)NuisanceThe claimant’s marshland was floodedwhen, after a period of heavy rainfall,water flowed from an adjoining marshand lake owned by the defendants. Theclaimant brought a claim in nuisance fordamage caused to his land by the floodand sought a declaration that the defendantshad no right to discharge wateronto his land. The High Court dismissedthe claim: there was no nuisance liabilityand the duty of care identified in Leakey vNational Trust for Places of HistoricInterest or Natural Beauty [1980] 1 All ER17 did not arise in relation to naturallyflowing water. The claimant appealed. TheCourt of Appeal concluded that there wasno authority for this proposition. TheLeakey duty that an occupier of land owesa general duty of care to a neighbouringoccupier in relation to a hazard occurringon his land did apply with respect tofloodwater. ‘Naturally flowing water’ wasan expression that could bear more thanone meaning and in the context of theEnglish landscape, a distinction betweennatural and artificial features was aninherently uncertain foundation on whichto rest a decision as to the existence ofliability in nuisance. It had therefore beenincorrect for the High Court judge toEnvironment Law BulletinApril 200350