Contaminated Land

01 November 2002

Andrew Gough, partner at Canterbury based solicitors Furley Page, asks if the polluter really pays for the clean up of contaminated land.
The new statutory regime for the clean up of contaminated land was born on the 1 April 2000 some 5 years after the passage of the Environmental Protection Act 1995 which announced the conception of the regime. Local authorities are now charged with the duty to inspect land within their boundary in order to compile remediation strategies, which are likely to be completed by June 2001.

For the purposes of the Act not all land within which there are contaminants will be subject to clean up. In order for the land to be contaminated there has to be pollution and a route for pollution to pass so that it harms a particular target. The contamination must cause, or there must be a significant prospect of causing significant harm, which includes harm to humans, protected habitats, buildings and ecological systems/animals and crops. The threat of harm or of water pollution is sufficient grounds for seeking remediation. The land from which the pollution arises will be taken to be contaminated.

If land is shown to be contaminated the local authority has the power to prepare and serve a remediation notice setting out what needs to be done to clean up the site. The local authority must give prior notification to the parties likely to be affected by the legislation. It is therefore open to those parties to put forward a proposed remediation scheme before a formal notice is served. Particular sites (so called Special Sites) will be governed by statutory regulations and clean up will be supervised by the Environment Agency.

The remediation notice should prescribe the work to be undertaken. The statutory regulations set out up to twenty grounds of appeal including procedural issues, the content of the notice and whether the appropriate person has been served.

The regime acknowledges two classes of person who can be liable as an appropriate person to clean up the site. First are those persons who are primarily liable (the class A category). These persons have caused or knowingly permitted contaminants to be in, on or under the land. It is possible that an owner could become principally liable if he has knowledge of the pollution and the means to control it but does nothing about it. In the event that class A persons cannot be found, the liability can fall upon current owners and/or occupiers of the land (the class B category).

The statutory guidance supporting the regulators sets out various ways for sharing or passing on the risk. Appropriate persons can agree how to deal with the contamination between themselves and the local authority is obliged to have regard to such agreements. A purchaser may become responsible if the price has been reduced to cover the cost of contamination. In addition a sale with information may pass the risk from a vendor to purchaser. It is unclear what this means. Perhaps it is sufficient to point out the presence of the contamination. However, in transactions since 1990, made between large commercial organisations (undefined), merely offering the opportunity to survey may be sufficient to make the disposal a sale with information. This is retrospective legislation which could have significant implications.

If any party fails to comply with the remediation notice, a local authority can move on to the land and remedy the problems. It can recover costs by placing a charge on the land and even seek to repossess the land in the event of a default. In addition, failing to comply with a remediation notice is a criminal offence carrying a fine of up to £20,000 and a continual fine of up to £2,000 per day.

Owners of contaminated land will want to monitor the approach that the local authority takes towards these issues. Increasingly, local authorities will want to link contamination issues into the planning system and to ensure that remediation is part of the redevelopment strategy for brown-field sites. Given that central government is keen for the development of such land (in preference to green-field sites?) issues of contamination and remediation are now more likely to be vital when buying and selling land.

For more information please contact Andrew Gough, Partner.
 

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