Contaminated land regime

Professor Robert Lee | 12 years ago

It is important to distinguish the formal service of a remediation notice from the initial designation that the land is contaminated(see s78B (3) and s78E (1)).This initial notification is likely to be forwarded to the Agency, to the owner and occupier of the land and to any person who appears at that stage to be an appropriate person.  In addition to the requirements of s.78E requiring a statement of the reasons for believing that the land may be contaminated and explaining why the persons have been notified, a notice must contain the particulars set out in the Contaminated Land (England) Regulations 2006. The notice must provide a procedural statement of the steps that will follow including the right of appeal.  Under s 78H(3) of the Act, there must, however, be at least a three-month gap between the initial notification and the formal service of remediation notice. In fact the period is generally much longer and is rarely less than a year.  The intervening period will be used for consultation, but at this stage much fact-finding will still be going on.  Many local authorities will wish to resolve any disputes that may arise in relation to potential liability and in relation to the technical nature of the contamination before the formal notice is served.

Many entities targeted as appropriate persons will wish to avoid the formal service of a remediation notice by seeking to satisfy the local authority that appropriate things are planned by way of remediation such that the service of a remediation notice is unnecessary. Section 78H(5) of the Act allows for this; where the local authority is so satisfied, it can demand from a responsible party the preparation and publication of a remediation statement. This will detail what has been or is to be done in relation to remediation, the names of the parties carrying out the work and the period over which the work will extend.

The content of a remediation statement will be a matter for negotiation.  Doubtless before entering into this negotiation, an appropriate person will wish to undertake assessment of the land, and probably employ the services of an environmental consultant.  In practice it is likely that that an appropriate person would prefer the remediation statement route, since it places them more in control of the clean up. Doubtless, if the local authorities are to allow this, they will require a negotiated agreement, which will probably be far more detailed than any remediation notice.  A remediation notice will have to be sufficiently precise in order to allow the appropriate person to know what is to be done by way of remediation. It is likely that the burden of providing a detailed programme of works will then pass over to the appropriate person as part and parcel of the process of remediation.  Implicitly, any schedule of works will have to be agreed by the local authority.It should be noted that a remediation notice is personal to the particular appropriate person; different remediation notices in respect of the same parcel of land can be served upon different persons in relation to their respective responsibilities.

Rather than, or in addition to a remediation notice, the local authority may need to serve aremediation declaration.  It will do so in instances where it is not possible to find an appropriate person on whom it would be reasonable to serve a remediation notice in the light of either the cost involved or the application of the guidance.  A remediation declaration records why the local authority would have served a notice on the land, and also the grounds on which it feels precluded from specifying works within such a notice.  Note also that an authority will be prevented from the service of a remediation notice where other available enforcement powers exist.

Remediation notices will not be served in relation to land that is the subject of a site waste management licence where harm or pollution of controlled waters emanates from the breach of conditions of that licence or the manner of carrying on the activity authorised by the licence.  However, it is possible that a site which is subject to a licence can nonetheless be contaminated land within the meaning of the 1995 Act because of other historic contamination and subject therefore to remediation.  As is mentioned above, the powers available under section 59 of the EPA 1990 should be used in preference to a remediation notice, where it appears to the Environment Agency that waste powers can be exercised in relation to the waste deposited.

It is an offence to fail to comply with a remediation notice without reasonable excuse.  This will give rise to a fine, the maximum penalty on summary conviction is set at level 5 on the standard scale and together with a continuing fine for each day of failure. In the case of industrial, trade or business premises the level 5 fine (£5,000) is raised to £20,000 and daily fines can go up to one-tenth of the maximum figure. In addition, it is also possible to take High Court proceedings to secure compliance with the remediation notice.  Since this will effectively render persons liable to contempt if they fail to abide by an order of the High Court, this is a highly effective enforcement mechanism.  Where a person fails to comply with the requirements for a remediation notice, or in the event of imminent danger, or where a party has breached an agreement with the authority, the authority may itself remediate the land.  In such cases it will be able to recover the costs of their work.  Most importantly, in order to allow this they can charge the land and, in doing so, acquire the powers and remedies which would be available to a mortgagee under the Law of Property Act 1925 (including powers of sale, and the appointment of a receiver).  Such a charge, being a statutory charge, is likely to take priority over that of other mortgagees.  This is a significant provision, since in the past remediation powers have been rarely applied because of the expense of so doing.  This cost recovery mechanism may make it more realistically possible for local authorities to engage in land remediation.

As things stand while it is possible to appeal to the Secretary of State against a remediation notice, there is no right of appeal against a decision of an authority to enter land, clean it up and seek cost recovery. Initially stipendiary magistrates were be asked to deal with remediation notice appeals. Such appeals are now a matter for the Secretary of State. Remediation notices will be suspended pending appeals. There are some 20 grounds of appeal, since an appeal may not simply involve arguments about the extent of accommodation, but a wide range of other issues such as whether a party is an appropriate person or whether remediation requirements are appropriately demanded. A person receiving a remediation notice has 21 days within which to appeal.

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About the author

Professor Robert Lee

ERIC Director and Head of Birmingham Law School, Professor Robert Lee was co-director of the publicly funded Centre for Business Relationships, Accountability, Sustainability and Society at Cardiff University (BRASS). He is an expert on regulation, including environmental regulation and regulation of biotechnology and biomedicine. He previously worked for two top 10 UK law firms, and remains a professional-development consultant to one of the largest law firms in Europe, working on pan-European delivery of legal services.