Sustainability, in a broad sense, is the capacity to endure and has become a wide ranging term that can be applied to the environmental, sociological and economic dimensions of the way in which we live. Central and local government share both the ambition and the burden of creating genuinely sustainable communities. The development of sustainable communities through local operations and council services however brings with it a whole host of emerging risks which Local Authorities must be conscious of when devising and managing activities and operations being undertaken.   Langleys’ Public Sector Unit is already seeing Local Authorities having to consider new areas of insurance risks and liability in the face of the current changing climate, social and economic conditions. 

 

Environmental Risks  

 

The area which most people associate with the theme of sustainability is the environment and indeed it is the dramatic changes in the environment which has been the main trigger in raising the awareness of sustainability.

 

In Great Britain, the effect of climate change is manifesting itself most prominently in the increased flooding. Nobody can forget the events of June 2007 from which over 30,000 people across the country were left homeless. More recently, during November 2009, Cumbria in particular faced the worst of the weather. During both of these floods in 2007 and 2009, communities were made brutally aware of the increased risk and liabilities which they were facing in the extreme weather conditions with lives being lost. 

 

Michael Barnett was a young man who tragically died in June 2007 due to hypothermia after he became trapped as he attempted to clear a flooded Council drain in Hessle. In November 2009, PC Bill Barker was named a local hero when he lost his life as the bridge at Workington collapsed beneath him as he directed traffic away from the danger.

 

Whilst these events are extreme, they are prime examples of emerging risks for Local Authorities. A risk which has a low probability and which falls beyond your direct control to mitigate but has a high impact. When competing for budgets and attention, those risks with greater probability of occurrence tend to win. However a failure to understand, track and prepare for the lower but high impact risks can lead to a situation in which today’s afterthought can become tomorrow’s tragedy. Are all Local Authorities prepared if they were to be suddenly hit overnight by the level of flooding previously seen in East Yorkshire and Cumbria? Is the drainage infrastructure within the Local Authority area sustainable and resilient to the more weather conditions brought about by climate change?

 

Moving away from the changing weather conditions, one of the largest areas associated with environmental sustainability relates to the redevelopment of land. With restrictions on building within greenbelt areas, local authorities and their partners are increasingly redeveloping brown-field sites for the regeneration of urban areas. We already have a high profile example of a Local Authority being held liable for personal injury and damage being caused by toxic contaminants to which the Claimants were exposed to by the Local Authority’s reclamation works at a former steel works site.

 

The Group Litigation brought against Corby Council attracted much media attention during 2009 as the case involved eighteen Claimants all of whom had suffered birth defects in the form of missing and or reduced limbs which they alleged had been caused by their pregnant mothers' ingestion or inhalation of harmful toxins generated by the Council’s reclamation works at a former steelworks site during the 1980s.  It was claimed that very small particles from the waste material being moved from the steel works site had been allowed to become airborne over the town and inhaled by the mothers early in the pregnancy, at the time when the babies' limbs were developing.

 

Following a 3 month liability Trial in the High Court, the Local Authority was held liable. It was found that in their management and execution of the land reclamation which involved toxic waste management, the Council had owed a duty to take reasonable care to prevent the airborne exposure of any toxic waste. The High Court accepted the Claimants' argument that the Council had been in breach of that duty of care being described as having been "extensively negligent" in its control and management of the site.

 

Sustainability also includes economic and social dimensions, areas where local authorities are again at the forefront. For example, Local Authorities play a large part in planning and commissioning children’s services strategically and a key development, which is already being rolled out by Local Authorities within communities across the country is the Extended Schools and Sure Start Centres regime. Insurance for schools is currently provided based upon an assessment of risk of the normal educational activities of an individual school.  The range of activities that are now be offered through the Extended Schools Programme far exceeds the standard educational activities that traditionally schools offered however, which is likely to result in new risks arising for Schools. It is very important therefore that Local Authorities ensure that adequate and appropriate insurance is in place for all activities and services provided. 

 

Another key area for Local Authorities within the economic and social dimensions of sustainability is responsibility for highways and travel. The aim is to enable people to travel more sustainably between their homes, services and jobs. Cycle routes are a prime example. Local Authorities are being expected to design and install more cycle routes all across their areas extending and improving the greener travel infrastructure which again brings with it wider areas of potential risk and liability upon local authorities.

 

Cycle routes carry risks in themselves. A number of fatal accidents have already occurred at junctions between cycle paths and roads, raising debates over signage, barriers and sight-lines. The design and installation of certain types of cycle barriers have also proved to be problematic as a style which suits cyclists may present hazards and risks for others such as pedestrians or wheelchair users. Disputes are also increasing as to potential dangers from structures abutting cycle routes and the potential risks these present given the increased speed at which cyclists are travelling compared to pedestrians.

 

Control and responsibility for the design, installation, management and maintenance of cycle-routes tend to be complex involving numerous departments both within the Local Authority and with external partners and cycling organisation. With more and more of such cycle routes being created by nearly all Local Authorities, it is important that all risks associated with the routes are identified and controlled appropriately with a clearly defined allocation of responsibility.

 

Jo Hardcastle is a Legal Executive in the Public Sector Unit at Langleys