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| Issue | ELD
| UK Law | Comment
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| Water damage | | Water Resources Act 1991
| |
| Strict liability | Yes, but only in relation to Annex III activities, but subject to permit and state of the art defences; and no liability in relation to other activities.
| All activities caught—criminal offence, unless permit to discharge.
| UK law is stricter. |
| Potential liable parties | Only operators of Annex III activities.
| Any person. | UK law is stricter.
|
| Remediation requirements | Primary, complementary and compensatory.
| Only "primary" in certain cases. Restoration limited in practice to restocking salmon or trout.
| ELD is stricter. |
| What is "water" | Potentially excludes small, but environmentally significant water bodies, eg ponds.
| "Controlled waters" include ponds etc.
| UK law is stricter. |
| What is "water damage" | Significant adverse effect of water "status" under Water Framework Directive, includes physical/morphological damage.
| Entry into water of "poisonous, noxious or polluting matter or other solid waste matter—includes substances that may stain or dirty water—very low threshold.
| UK law is stricter, except in relation to physical/morphological damage.
|
| Temporal limitation | ELD only applies to damage caused after 30 May 2007.
| No such limitation. | UK Law is stricter.
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| | |
Danger that ELD may weaken application of Water Resources Act 1991.
|
| Biodiversity damage |
| Wildlife and Countryside Act 1981
Habitats Regulations 1994, Environmental Impact Assessment Regulations 1999
| |
| Strict liability | Yes, for Annex III activities. Fault-based liability for non-Annex III activities.
| SSSIs: No strict or fault-based liability. Test of intention/recklessness under Wildlife and Countryside Act.
Preventive planning legislation (environmental assessments) not about liability anyway.
BAP habitats and species: no liability.
| ELD is stricter. |
| Potentially liable parties | All "operators" (businesses and undertakings, could include public authorities, as long as "undertakings").
| SSSIs: People committing wildlife crimes, developers only in relation to planning, persons who enter into management agreements etc in relation SSSIs.
BAP habitats and species: n/a.
| ELD is stricter. |
| Remediation requirements | Primary, complementary, compensatory.
| Mitigation in exceptional circumstances in planning laws, restoration in very exceptional circumstances under Wildlife and Countryside Act (hardly even used).
| ELD is stricter. |
| Biodiversity covered | Most habitats and species protected/listed in the Habitats and Wild Birds Directive on and outside Natura 2000 sites.
| Natura 2000 sites if they are SSSIs under Wildlife and Countryside Act.
Only Natura 2000 sites under Habitats Regulations. The environment under the environmental assessment rules.
[BAP habitats and species—but no liability provisions.]
| Mixed, but net effect because of previous points and lack of liability rules re UK wildlife: ELD stricter.
|
| Type of damage covered | Significant adverse effects on reaching or maintaining favourable conservation status.
| Significant effects and adverse effects in relation to planning legislation, criminal destruction and disturbance under wildlife crimes and intentional/reckless damage of SSSIs etc. [BAP habitats and species—no liability provisions.]
| Mixed, but net effect because of previous points and lack of liability rules re UK wildlife: ELD stricter.
|
| | |
The ELD will improve wildlife protection laws, but it would make sense to include nationally protected wildlife as well—for the sake of wildlife protection, legal certainty, and practical effectiveness and predictability.
|
| Land damage | | Part, IIA, Environmental Protection Act 1990
| |
| Strict liability | Yes, in relation to Annex III activities, and subject to permits and state of the art "defences"; and no liability in relation to other activities.
| Yes, any person (Parliament rejected permit and state of the art defences).
| UK law stricter. |
| Potentially liable parties | Operator of Annex III activities.
| Knowing permitters, owner/occupier and others (eg developer).
| UK law broader. |
| Remediation requirements | Remove risk to health, restore to suitable for use standard.
| Restore to suitable for use standard. |
Broadly equivalent, subject to restriction to human health.
|
| Type of damage covered | Damage which has significant risk of human health being adversely affected, includes damage from micro-organisms.
| Significant possibility of significant harm, but not limited to human health, can include damage to protected biodiversity, but no damage from micro-organisms.
| Mixed, but overall EU law stricter. |
| Temporal application | No retroactive application (only damage which happens after 30 April 2007).
| Retroactive application. | UK law stricter.
|
| Extent of "land" | Limited to land with human health connection.
| Includes certain types of property (buildings, crops, certain animals).
| Both exclude wider "environment".
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| | |
Here both laws are stricter in some aspects and less strict in others. Care needs to be taken not to weaken either law by creating a confusing and uncertain system full of over-lapping and conflicting provisions.
|
| General | 30 year long stop limitation period for claims.
| No limitation in UK law. | UK law stricter
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| June 2007 | |
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