Lord Hoffmann’s address to a public meeting called by the Heath & Hampstead Society
in connection with the Hampstead Heath Dams project
November 25th 2013
Most people here tonight will know the story of how the Heath and Hampstead Society came into existence. In the 1860s there had been proposals by the freeholders of the Heath and other open spaces in London like Wimbledon Common to enclose and build upon them. There was a great deal of protest by Londoners who regarded these spaces as common land where they could take air and exercise. As a result, acts of Parliament were passed to protect them. One of these was the Hampstead Heath Act 1871, which began with a recital that “it would be of great advantage to the inhabitants of the Metropolis if the Heath were always kept unenclosed and unbuilt on its natural aspect and state being as far as may be preserved.” The Act vested the land in the Metropolitan Board of Works and said that the Board was to “protect the Heath and preserve it as an open space”. In 1890 the Heath was transferred to the newly created London County Council, which had plans to turn it into a municipal park. It was to resist the introduction of bandstands and beds of salvias that this Society was formed in 1897. As you can see, it has been remarkably successful in ensuring that the Heath is kept “in its natural aspect and state.” In 1989 the City of London took over the management of the Heath and has so far proved an excellent custodian: indeed, lovers of the Heath owe a great deal to the City and its excellent Superintendent of the Heath, Simon Lee, for the work they have done over the last 14 years.
The problem which has arisen over the ponds is not of the City’s making. Most people who walk over the Heath and see the ponds probably think that they are natural ponds, especially since they have featured in paintings of the Heath by Constable and others for centuries. However, they are not. They were originally dug in the 17th century as reservoirs filled from the springs which fed the Fleet River and for a long time supplied water for parts of London. You might well ask, what is the significance of this curious bit of history? Why does this matter today? The answer is that because the ponds were artificially created, even if it was more than 300 years ago, the three largest ones count as reservoirs for the purposes of the safety provisions of the Reservoirs Act 1975. On the other hand, no safety provisions would apply to them if they were natural ponds. However, there is no doubt they are reservoirs for the purposes of the Act. So, to understand the problem, we need to look at what the Act says about them. It has safety provisions which date back to the second half of the nineteenth century, when two or three industrial reservoirs in Yorkshire had collapsed and caused considerable loss of life. The scheme of the Act is that a reservoir must be inspected at least once every ten years by a specialist engineer, who may recommend “measures that should be taken in the interests of safety”. Those are the key words: “measures that should be taken in the interests of safety.” If the engineer makes such a recommendation, the owner of the reservoir, in our case the City, is obliged to carry them out.
The City has been advised by its engineer that the dams need to be strengthened by very considerable works, raising the walls of one of them by nearly 3 meters, building large spillways and changing the levels. The cost is estimated at £15 million pounds. No doubt it would all be landscaped and grassed over, but the general effect will be to change the atmosphere of the ponds from the rural scene which Constable would have recognised to something like a nice grassed and landscaped municipal water works. And the City has been advised by a very eminent QC that it is obliged as a matter of law to carry out these works: indeed, that there is a risk of a criminal prosecution if they do not. So you can see that the City is in a very difficult position.
We have also taken legal advice and we have been told that there is a reasonable chance of persuading a court that the engineer’s recommendations are not in accordance with the requirements of the Act. There are two prongs to this argument. The first is that the risk assumed by the engineers is grossly exaggerated. You might feel intuitively that there is something odd about reaching the conclusion that ponds which have been there for over 300 years and never done anyone the slightest harm, actually pose a serious risk which requires £15 million of expenditure and works which disfigure the Heath. And we think that this intuitive feeling is right. The engineers say they have approached the matter according to various guidelines which have been laid down by their professional body and, however counterintuitive, that is the conclusion they have reached. The guidelines are extremely technical, and I am not competent to explain the details to you, but in rough summary what the engineers say is this. There are people who live downstream of the ponds and there is a risk that if large quantities of water flowed downhill out of the ponds, some people would be drowned. Therefore it is necessary to take steps which altogether eliminate the possibility of that happening. For this purpose, they have calculated what would happen if there was a cloudburst over the Heath of such ferocity that it would be expected to happen only once in 400,000 years. We know of course that the climate changes, indeed, is changing. But the extreme case assumed by the engineers is unlikely by any standard. The purpose of the recommendation is to ensure that even in such circumstances, the dams would not cause a risk to anyone.
We think that this kind of approach involves a number of illogicalities and anomalies. For example, the risk is calculated without any regard to the fact that there might be warning of a spectacular storm, as there was a few weeks ago, or even that people living in basements in Gospel Oak might notice that it was raining and move to an upper floor. Boroughs like Camden are obliged by law to have a flood warning system in operation but that has not been taken in to account. Likewise, it is agreed that long before any dam is likely to collapse, floods of water will have poured off the Heath and down the streets, creating an earlier and greater risk than any collapse of the dams. The engineers say that does not matter. If there is a flood such as they assume, warnings may reduce the risk of people being drowned by the dams; people may be drowned for reasons that have nothing to do with the dams, but there is still a risk that the dams may cause someone to drown and that risk must be eliminated.
We think that is not a rational approach and we don’t believe that is what Parliament meant to happen when it passed the Reservoirs Act. But there is a second, and in my opinion, more important prong to the argument and that is that is that the engineers have misunderstood what it means to say that something should be done in the interests of safety. The engineers have treated it as a purely professional question. They say: “let’s assume the worst possible scenario and then work out what works are needed to eliminate any risk of someone being drowned. That is something within our professional expertise and with which we feel comfortable.”
This may be the right approach for industrial reservoirs, which serve no purpose except for the profit of the owners. In such a case it may be right that risk should be eliminated risk altogether. It is quite irrational to apply it in cases in which the reservoir serves other purposes in the public interest, like forming part of a historic environment. That is quite at odds with how we normally deal with risk. Usually we try to strike a balance between the seriousness of the risk and the cost to the community of reducing or eliminating it. For example, in July 2005 bombers killed 52 people and injured about 700 on London transport. TfL could have considerably reduced the risk of it happening again by having security inspections at Underground stations like they have at airports, or prohibiting people from taking luggage on the buses or underground. But they didn’t do so, because in terms of inconvenience to the public, the cost would have been too high. It would have been quite irrational to consider only what was needed to eliminate the risk and disregard the cost, even though the risk was a very clear risk to human life, much greater than the risk of a storm which might happen once every 400,000 years. Likewise when you are dealing with the risk of flooding on Hampstead Heath. The engineers say they have taken no account whatever of the environmental damage which their works would cause to the Heath, made no attempt to balance it against the elimination of an extremely remote chance of the flood on which they have based their calculations. Nor have they taken any account of the City’s statutory obligation to keep the Heath “in its natural aspect.” We think, and we have been advised by counsel, that this is wrong: that to say that in such circumstances the works are measures which should be taken in the interests of safety is irrational. The Act does not say that all risk must be eliminated. It asks the engineers to recommend what measures should be taken, and the word “should” implies a standard by which you decide what should be done. The Act does not spell out what that standard is, but it must mean a standard of rationality: what measures should reasonably be taken. And that requires all the circumstances to be taken into account. When the Act asks the engineers to consider what measures should be taken, we therefore think that they should take everything into account and not make a lopsided calculation which ignores the environmental importance of the ponds, particularly when it has statutory backing in the 1871 Act.
Now the City, as I have told you, have been advised by their counsel that the engineers are right and that our interpretation of the Act is wrong. And that may be true: sometimes the law produces very perverse results. But we think, and we have been advised, that our case is clearly arguable. What we cannot understand is why the City will not join with us in trying to get a ruling from the Court that we are right. It would be very much in the interests of the City to do so. It would save them £15 million pounds and the unpopularity of having been the authority which disfigured Hampstead Heath. If we and the City are unsuccessful in getting such a ruling, they will being no worse position than they are now and everyone will feel that they have at least done their best. But they don’t seem able to see where their best interests lie.
So the reason why we have called this meeting is to ask you to make it clear to the City that they will be extremely unpopular with everyone who loves Hampstead Heath if they do not make every effort, including joining forces with the Heath and Hampstead Society, to find a way of lawfully avoiding or reducing damage to the Heath. We do not ask the City to break the law. And we greatly regret that we seem now to be at loggerheads. We have greatly admired what the City has done for the Heath in the past. But the primary duty of this Society is to protect the Heath, and if the City will not help us, we shall try to do so alone. And for that we require the support of our members and the public at large. That is what I ask you to demonstrate tonight and in the months ahead.