Michael Barlow
Michael leads the environment team and the cross-firm water sector team. Michael covers contentious and non-contentious business for a range of clients from a variety of sectors.
He has substantial experience of running cases in criminal courts, tribunals and civil courts to the Supreme Court as well as other methods of dispute resolution including arbitration and mediation.
On the non-contentious side, Michael has particular expertise in energy efficiency, contaminated land and environmental permitting but has advised on a broad range of topics over the last 15 years.
Michael is a former editor of the Environmental Law Review, regularly lectures on environmental law and contributes articles to environmental journals.
Practice Area
Panel
- Contributing Author
Qualified Year
- 1996
Education
- Bristol University ' Classics (2:1)
- University of West of England - PGDL and PGLPC (Merit)
8 Contributions by Michael Barlow
PRACTICE NOTES
Flood and coastal erosion risk management and drainage: statutory duties and powers of responsible bodies in England and Wales
Responsibility for flood management and drainage in England and Wales has evolved through a tangled past. In 1927, a Royal Commission on land drainage observed that arterial drainage was overseen by a bewildering patchwork of authorities created by five centuries of piecemeal law, with liabilities governed by no consistent scheme and often out of date or unclear.
That inheritance persists, though reforms over the last 25 years have helped to rationalise the regime. Historically, individual landowners held primary duties, and some still apply; see Practice Note: Flood management and drainage—landowner rights and responsibilities. Today, public bodies play leading roles in protecting communities from flooding.
Key legislation
The responsibilities of public bodies for flood management and drainage in England and Wales are outlined in separate Practice Notes:
Flooding—UK policy and legislative framework
Land Drainage Act 1991—snapshot
For EU flood risk management, see Practice Note: Floods Directive 2007/60/EC—snapshot.
Central government
In England, the Department for Environment and Rural Affairs (Defra) has overall responsibility for devising...
Environment
PRACTICE NOTES
Flood and drainage liability, duties and claims: private and statutory nuisance, covenants, leases, planning enforcement, and public authority powers, duties and compensation (England and Wales)
Liability for flood management and drainage
Traditionally, individual landowners bore primary responsibility for flood defences. It has, however, long been recognised that drainage works serve the wider public interest. Public authorities therefore have a crucial function in preventing and managing flooding for the benefit of communities. For any claim arising from a flooding incident, the first task is to identify the party or parties with duties relevant to the prevention of flooding. Potential liabilities and claims may arise across both private law and public law. This note addresses both areas.
At the outset of any flooding event, the availability of insurance must also be considered. See Practice Notes: Flood insurance—overview of the market and Flood reinsurance—the Flood Re scheme.
Potential responsible parties include:
landowners
riparian landowners
public bodies
Landowners
Landowners may owe obligations concerning flooding and drainage arising as matters of title, under statute, and under the common law of nuisance or the rule in Rylands v Fletcher. Details of these obligations are set out in the Practice Note: Flood management and drainage—landowner rights and responsibilities. That note should be treated as the starting point when considering potential claims...
Environment
PRACTICE NOTES
Flood risk activities under the Environmental Permitting Regulations 2016: scope, exclusions and exemptions, standard/bespoke permits, compliance and enforcement (England and Wales)
History of flood defence consents
The previous flood defence consent regime, in place until 6 April 2016—the commencement date of the Environmental Permitting (England and Wales) (Amendment) (No. 2) Regulations 2016, SI 2016/475—governed activities on or close to a main watercourse or sea defence by reference to Part IV of the Water Resources Act 1991 (WRA 1991), regional byelaws, and the Highways Act 1980 (HiA 1980). Consent was needed to ensure proposed works did not raise flood risk, impair flood defences, or adversely affect the environment, fisheries, or wildlife. A defence applied where works were carried out in an emergency, and there was also an exception to the need for flood defence consent where the works comprised a licensable marine activity and specified circumstances prevailed. The prior framework was widely regarded as unduly complicated and burdensome. For background on the earlier flood defence consent system, see Practice Note: Flood defence consents [Archived]. From 1 January 2017, the Environmental Permitting (England and Wales) Regulations 2016 (EPR 2016), SI 2016/1154 took effect. EPR 2016 consolidated, and revoked, the Environmental Permitting (England and Wales) Regulations 2010 (EPR 2010), SI 2010/675, which had been amended many times. EPR 2016 now forms the principal legislation in this regulatory area...
Environment
PRACTICE NOTES
Flood risk in private M&A transactions involving land: due diligence, environmental permitting, liabilities, warranties, insurance and risk allocation
Flooding—issues in corporate (private M&A) transactions
Introduction
Flood-related considerations can emerge in private company merger and acquisition (M&A) deals that involve acquiring land. It is prudent to determine at an early stage whether flooding is relevant and, if so, to appoint suitable environmental and hydrology experts to identify, evaluate, assess and quantify the attendant risks. Those risks should be expressly allocated and controlled in the deal documentation, ensuring the client clearly grasps both their scope and magnitude, together with the possible effect on valuation, liabilities and activities after completion.
Potential risks for buyers
Share and asset purchase
Flood matters may affect whether the deal proceeds as a share purchase or an asset purchase. On a share purchase, the buyer inherits all liabilities (including environmental or regulatory) of the target company. Examples of liabilities that might arise include:
Regulatory investigations and prosecutions where the target has undertaken works without necessary flood risk permits, or where water pollution has occurred because of flooding (see Practice Note: Environmental Permitting—flood risk activities)
Liability under the contaminated land regime due to the spread of pollution through flooding (see Practice Note: Land contamination—potential liabilities)
Flooding can dictate share or asset deal structure decisions.
In a share...
Environment
PRACTICE NOTES
Flood risk in property transactions: searches and enquiries, contractual allocation, lease issues and insurance (including Flood Re), guidance for England and Wales
Introduction
This Practice Note sets out an overview of flooding matters that can arise in property transactions. It is intended to equip clients to check flood risk at a property and to weigh the key points when buying or selling. For material on heightened flood risk, climate change and the solicitors’ duty to warn clients about climate-related risks, see News Analysis: The legal duty to advise and warn about climate risk—developments for property lawyers. The Law Society of England and Wales has issued an updated practice note entitled ‘Climate Change and Property’. That guidance expresses the Law Society’s view of sound professional practice on climate-related risks in property work, highlighting physical, transition and liability risks as potentially relevant. It recommends that solicitors, acting within the scope of their instructions and competence, consider whether to bring such risks to clients’ attention and suggest climate-risk searches where appropriate...
Impacts of flooding risk on properties
Cost and disruption of flooding
Flooding can generate significant expense for both individuals and businesses. Outgoings may arise from:
moving to another property/renting alternative premises
repairing damage to the property (including structural)...
Environment
PRACTICE NOTES
Flooding and Secured Lending: Valuation, Planning, Insurance (Flood Re), Due Diligence, Defaults and Lender Protections
Effects of flooding on underlying assets
Flood events raise a range of considerations for banking and finance deals. This Practice Note flags the following areas:
individual risks
planning policy
availability of insurance
borrower default
It also outlines how a lender may reduce exposure to these risks.
Individual risks
Floodwater can inflict serious harm on people, property and businesses. It may influence whether someone chooses to purchase or lease a home, and it can impact the valuation of real estate.
In ‘Deep Water Horizon’, 2018, the Royal Institution of Chartered Surveyors (RICS) considers the rising incidence of floods and how the surveying profession might respond and manage the issue.
The price of residential or commercial premises can fall owing to flood risk, not only due to potential physical damage but also because of the expense of flood insurance. Flooding also bears upon liquidity, market perception and mortgage-ability. Although the flood insurance market is changing, with risk cover becoming more accessible and cost-effective, higher excesses or the...
Environment
PRACTICE NOTES
Land Drainage Act 1991: Practitioner’s snapshot of internal drainage boards’ functions, enforcement powers, rates and governance in England and Wales
Land Drainage Act 1991
In force 1 December 1991; transposition deadline N/A.
Amendments
Environment (Wales) Act 2016
Deregulation Act 2015
Water Act 2014
Transfer of Tribunal Functions Order 2013, SI 2013/1036
Natural Resources Body for Wales (Functions) Order 2013, SI 2013/755
Local Government Byelaws (Wales) Act 2012
Flood and Water Management Act 2010
Transfer of Tribunal Functions (Lands Tribunal and Miscellaneous Amendments) Order 2009, SI 2009/1307
Tribunals, Courts and Enforcement Act 2007
Local Government and Public Involvement in Health Act 2007
Natural Environment and Rural Communities Act 2006
Constitutional Reform Act 2005
Communications Act 2003
Water Act 2003
Enterprise Act 2002 (Disqualification from Office: General) Order 2006, SI 2006/1722
Transfer of Functions (Transport, Local Government and the Regions) Order 2002, SI 2002/2626
Local Government and the Regions and for Environment, Food and Rural Affairs Order 2001, SI 2001/2568
Postal Services Act 2000 (Consequential Modifications No. 1) Order 2001, SI 2001/1149
Countryside and Rights of Way Act 2000
Transport Act 2000
National Assembly for Wales (Transfer of Functions) Order 1999, SI 1999/672
Development Commission (Transfer of Functions and Miscellaneous Provisions) Order 1999, SI 1999/416
Secretary of State for the Environment, Transport and the Regions Order 1997, SI 1997/2971
...
Environment
PRACTICE NOTES
Landowner flood and drainage rights, duties and liabilities in England and Wales: covenants, easements, riparian, statute, nuisance/Rylands, measured duty, culverts, and public authority enforcement
Sources of rights and responsibilities for flood management and drainage
The legal framework governing flood management and drainage originated in the nineteenth century within land law. Back then, these issues were treated as private matters to be resolved between neighbouring owners. Over time, policy shifted to acknowledge flooding as a collective challenge, with public bodies now central to preventing and managing floods for communities. Even so, many core rights and obligations concerning flooding and drainage still attach to, and pass with, ownership of land. Landowners therefore need a clear grasp of their rights and duties in this area. Indeed, when a flooding dispute emerges, landowner rights and responsibilities are often the first point to consider. This Practice Note sets out the principal sources of those rights and responsibilities for flood management and drainage, together with the key considerations for landowners.
Restrictive and positive covenants
When considering the rights and responsibilities of landowners for flood management and drainage, the starting point is the title register or other title documents...
Environment
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