Contaminated land regime

Professor Robert Lee | 13 years ago

Where a local authority itself carries out remediation of land, it can recover its reasonable costs from the appropriate person(s).  In deciding whether to seek recovery of costs the authority must have regard to hardship caused to that appropriate person and also to any guidance issued by the Secretary of State.  The guidance in relation to hardship is not particularly helpful offering no real definition of the concept. It is said that it might be appropriate to take into account any element of injustice, and that authorities can look beyond severe financial detriment and consider such issues as suffering and anxiety. It is for a party wishing reduction or waiver of recovery to make out its case. The authority is told to be fair and equitable to all including the taxpayer.

The guidance goes on to state that authorities should look to recover primarily from Class A persons and especially those who caused or knowingly permitted the presence of pollutants in the course of a business. However, authorities are asked to give sympathetic consideration in cases where the party might have had the benefit of an exclusion that could not be applied in this particular case. Records of compliance with regulatory consents are said to be relevant.  In relation to Class B person’s authorities should have regard to whether the owner/occupier could be reasonably expected to be alert to the presence of pollution. Under the guidance, authorities will treat businesses differently from private individuals, though no distinction is to be made between different types of business.  Authorities are however told to take into account threats to businesses solvency and its effect. In certain (but not all) cases, the authorities have been sympathetic to owners purchasing property which has been developed on contaminated land. In the Bawtry case, where the developers had long ago wound up their companies and in which the argument was about the liabilities of National Grid Gas for former gas works’operations on the site, the Environment Agency made it known at the outset that, if National Grid Gas turned out not to be appropriate persons (which was indeed the finding of the House of Lords) there was no question of seeking any contribution from the house holders to pay for the remediation.

Where liability falls upon an owner or occupier, the authorities are allowed to take into account the steps taken prior to purchase to discover whether or not land was contaminated.  This is so that those who knowingly purchase contaminated land can be expected to pay a greater proportion of the remediation costs than innocent purchasers.  Authorities, in dealing with such parties, are told to take into account the land value of the site following remediation.  This may be particularly important, since if remediation is carried out at public cost, the owner may gain a windfall as a result of public money being expended.  Trustees ought not to be held liable for sums in excess of available trust funds.  Throughout, local authorities are instructed not to waive remediation costs in any way that will alter the balance of liabilities as between multiple parties who may be appropriate persons.  Indeed, the guidance makes it clear that where enforcing authorities waive even part of the cost of remediation, then the authority itself becomes responsible for such costs, which cannot be reallocated to other appropriate persons.  This may make waiver of costs on hardship grounds a somewhat rare event.

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.