Overview
Landmark barristers act for central government, local authorities, the Office of Environmental Protection, the Environment Agency, Marine Management Organisation, other public bodies, private companies and objectors. Barristers with experience in water matters span a broad range of seniority. Landmark’s practice managers will be happy to assist in providing a recommendation of appropriate counsel.
Landmark’s barristers have acted in significant litigation across this field including in relation to water abstraction, flood prevention, water quality, water supply (and water company regulation), private rights in water, and pollution issues.
Key recent cases include three recent Supreme Court cases concerning the Manchester Ship Canal
- Manchester Ship Canal Co Ltd v United Utilities Water Plc [2014] 1 WLR 2576 – decision of the Supreme Court concerning the right of utility companies to discharge into private water courses
- Manchester Ship Canal Co Ltd v Vauxhall Motors Ltd (formerly General Motors UK Ltd) [2019] UKSC 46 – decision of the Supreme Court as to whether private right of drainage took effect as a contractual licence and, if so, whether the licensee was entitled to relief from forfeiture following termination for breach
- Manchester Ship Canal Company Ltd v United Utilities Water Ltd [2022] EWCA Civ 852 (currently on appeal to the Supreme Court) – acting for United Utilities in arguing that proposed private law claims raised by MSCC in respect of unauthorised discharges of untreated foul water were ousted by the Water Industry Act 1991.
Members are also involved across many aspects of the regulation of the water industry including:
- Case C 279/12 Fish Legal v Information Commissioner - acting for UK Government on whether privatised water companies are public authorities for the purposes of Directive 2003/4
- Advising and acting for water companies, regulators and water users in relation to Combined Sewage Discharge Outflows, including acting for the claimant in R(WildFish) v SSEFRA
(CO/4438/2022), a challenge to DEFRA’s plan for reducing but not eliminating unlawful discharges
- Advising and acting for water companies, regulators and water users in relation to emergency drought orders and powers.
They also have a depth of experience in relation to rights in water, including key cases such as:
- Barton v Church Commissioners for England
[2008] EWHC 3091 (Ch) – establishment of a highly unusual fishing right (a right of piscary in gross) pursuant to a lost modern grant, deemed to have occurred in the early 18th Century
- Bernel Ltd v Canal and River Trust [2021] EWHC 16 (Ch) - in which the court accepted that riparian rights can derive from artificially piped water and considered whether a claimed culverted natural watercourse was a land drain or sewer. The court also considered the acquisition of prescriptive rights to drain land by way of easement
- Port of London Authority v Mendoza [2017] UKUT 146 (TCC) – whether the act of mooring a boat was insufficient, by itself, to evidence an intention by the boat owner to take adverse possession of the river bed beneath the boat and whether it was possible to acquire title through adverse possession to the bed of a river that was subject to public navigation rights.
Members of chambers also have particular expertise when dealing with habitats and water quality issues, key recent cases include
- R (WWF-UK and Ors) v Secretary of State for Environment Food and Rural Affairs [2021] EWHC 1870 (Admin) – acting for DEFRA and the Environment Agency in a case concerning compliance with obligations to implement measures required under Water Framework Directive
- R(Harris) v Environment Agency [2022] EWHC 2264 (Admin) | [2022] P.T.S.R. 1751 – acting for the Environment Agency in relation to a challenge to the scope of its ongoing investigation of the impact of water abstraction licences on sites within the Norfolk Broads SAC
- R (Seiont, Gyrfai and Llyfni Anglers Society) v Natural Resources Wales [2016] EWCA Civ 797; [2018] 1 WLR 228 – acting for Natural Resources Wales in relation to a challenge to a decision that no environmental damage was being caused to the features of a SSSI by sewerage discharge
- Greenpeace v Department for Environment, Food and Rural Affairs and the Marine Management Organisation [2016] EWHC 55 (Admin) – challenge brought by Greenpeace to the Secretary of State’s allocation of fishing rights under the EU Common Fisheries Policy.
Specific areas of expertise include:
- Discharges and environmental liability
- Judicial reviews into water abstraction licensing decisions
- Judicial review concerning wastewater treatment
- Advice in relation to implementation and national compliance with the Water Framework Directive
- Advice on implications of Water Resource Management Plans and Drought Management Plans
- Flooding and development (the approach to mitigation)
- Private law rights of drainage and discharge, including remedies for intensification of use and nuisance claims.
- Water company obligations
- Legal implications of groundwater contamination
- Rights and liabilities of sewerage undertakers under the Water Industry Act 1991
- Advising on fisheries disputes including private rights and profits- à-prendre.
