DEFENDING 'FUNDAMENTAL' COMMON LAW RIPARIAN RIGHTS FROM PROPOSED REGULATORY LAW LIMITATIONS: LESSONS FROM PARLIAMENTARY HISTORY

摘要

The appropriate relationship between private rights enforceable within the framework of the common law and regulatory controls handed down through statute is today among the most contentious issues within environmental law. This article explores the history of this issue from the perspective of developments since the industrial revolution in the field of rivers pollution law. Prior to the pioneering regulatory controls introduced under the Rivers Pollution Prevention Act 1876, such legal protection of the water environment as existed rested on the foundations of riparian rights as embodied in the common law of nuisance. Unlike some other well remarked areas of nuisance law during industrialisation, the protection of riparian rights continued to embody strict standards of purity associated with feudal times, and this resulted in a conflict with emergent urban and industrial interests which is somewhat overlooked in the literature. This article examines the limitations on nuisance remedies arising out of this conflict which were contained in section 16 of the 1876 Act, and the subsequent reinstatement of full common law protection during the refinement of regulatory controls in the post-war period. The aim in so doing is to clarify some important legal uncertainties in this area, and more broadly, to contribute to what is a growing appreciation of the modern relevance of environmental law's rich historical heritage.