Contaminated Land
17th Jun 2007
Contaminated Land
The framework for environmental liability at national, European and international levels is based on the principle that the “polluter pays”. It is the person who caused the pollution who should bear the cost of any works required to alleviate the damage caused, not the tax-payer.
However, land owners should be aware that under the contaminated land regime established by Part IIA of the Environmental Protection Act 1990 (the EPA) a polluter is not just a person who causes pollution but also someone who “knowingly permits” environmental damage.
If the polluter cannot be identified or found, the owner or occupier of the land may find themselves responsible for the costs of the clean-up.
The first case to be heard under the contaminated land regime illustrates the circumstances under which someone who has not caused the pollution can be treated as a polluter.
The defendant in Circular Facilities (London) Ltd v Sevenoaks District Council acquired a site for residential development where fly-tipping had taken place in the past.
Prior to work starting, clay pits on the site were infilled with inert matter in accordance with planning permission.
Years later when the houses had been sold, the council investigated the site and discovered significant emissions of methane and carbon monoxide caused by decomposing organic matter in the land which posed a significant risk to the health of people in the houses.
The council carried out remediation work, then served notice on the defendant to recover the cost.
The council determined that Circular Facilities bore responsibility for the contamination as they had knowingly permitted the environmental harm to occur.
Prior to Circular Facilities’ purchase of the site, the previous owner had commissioned a soil investigation report which revealed the presence of black organic matter and gases bubbling through the groundwater. The report was submitted to the council and placed on the planning register.
The defendant stated that they were not aware of the contents of the report. But in upholding the validity of the council’s notice, District Judge Kelly held that Circular Facilities must have been aware of the report and of the risks posed by former landfill sites.
The case was appealed and a retrial has been ordered on the grounds that the district judge had not sufficiently explained his reasoning for determining that the defendant had knowledge of the contamination.
This case demonstrates the risks which arise where information is available but not acted upon.
When selling land it is important to disclose any information relating to potential or actual contamination in order to shift liability to the buyer.
Buyers, meanwhile, need to ensure that all information received is thoroughly reviewed and acted upon.
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