Environmental Law 1 CONTAMINATED LAND ENVIRONMENTAL PROTECTION ACT

Environmental Law 1 CONTAMINATED LAND ENVIRONMENTAL PROTECTION ACT 1990 PART IIA (INTRODUCED BY ENVIRONMENT ACT 1995)

Contaminated Land 2 Statutory regime defines contaminated land regulates allocation of liability/compensation/cleanup Part IIA Environmental Protection Act 1990 Contaminated Land (England) Regulations 2006 DEFRA Circular 01/2006 Contaminated Land DEFRA Guidance on legal definition of CL, 2008 Radioactive Contaminated Land (Modification of Enactments) (England) Regulations 2006

Contaminated Land 3 Difficulties in regulating contaminated land: 1. Uses of land are diverse and diffuse, eg agriculture Savage v Fairclough [2000] Env. LR 183 CA 2. Potential consequences: Harm to human health Hancock and Margereson v JW Roberts [1996] Env. LR 304 CA Environmental harm Cambridge Water [1993] 3. Nature of contamination

Contaminated Land 4 4. Stigma/blight Blue Circle v Min. of Defence [1999] 5. Clean-up standards ‘Suitable for Use’ 6. Strict liability 7. Retrospective liability/historic contamination 8. Ascertaining who is/who are liable and how to apportion liability

Definition of Contaminated Land 5 S 78 A(2) EPA 1990 Any land which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land, that: (a) significant harm is being caused or there is a significant possibility of such harm being caused; or (b) significant pollution of controlled waters is being caused or there is a significant possibility of such harm being caused

Contaminated Land EPA 1990 6 S 78 A(4) ‘Harm’ means harm to the health of living organisms or other interferences with the ecological systems of which they form part and, in the case of man, includes harm to his property. S 78 A(5)‘Significant’ harm or ‘significant possibility of such harm being caused: Statutory guidance issued by Secretary of State [in accordance with s 78 YA]

Contaminated Land 7 Local Authorities and Environment Agency = enforcing authorities in relation to land identified as contaminated land special sites (Reg 2), respectively Duty to act in accordance with guidance issued by SS (a) Significant pollutant linkage must exist between: (i) contaminant/pollutant and (ii) Receptor or target (humans/property) by a (iii) Pathway (iv) Significant

Contaminated Land 8 (b) Receptor/targets (c)Nature of harm (d) Significant possibility of significant harm (e) Pollution of controlled waters s 78 A(9) EPA 1990 Identification of contaminated land Duty to inspect s 78 B(1) EPA 1990 Local Authority Acting in accordance with statutory guidance (a) contaminated land LA (B) special sites s 78 C EA

Contaminated Land EPA 1990 9 Notice and Consultation s 78 B(3) s 78 H(1) Exceptions s 78 H(7) s 78 H(4) Remediation Statement s 78(H)7 Remediation Declaration s 78 H(6) Duty to serve Remediation Notice s 78 E(1) (4) Having regard to guidance Precluded from serving RN (a) other statutory provision

Contaminated Land EPA 1990 10 (b) unreasonable s 78 H (5)(a) Remediation Declaration s 78 H(6) (c) voluntary remediation (d) hardship s 78 N(3)(e) s 78(H) (5)(d) (e) enforcing authority is appropriate person s 78 H(5)(c) (f) imminent danger of serious harm or pollution s 78 N(3)(a) (g) pollution of controlled waters. Owners/occupiers s 78 J

Contaminated Land EPA 1990 11 (h) reasonable enquiry. No appropriate person s 78(3)(f) Under statutory regime enforcing authority may carry out clean-up works and seek to recover costs from appropriate person

Contaminated Land EPA 1990 12 s 78 A(7) ‘Remediation’ means: (a) the doing of anything for the purpose of assessing the condition of (i) the contaminated land in question; (ii) any controlled waters affected by that land; or (iii) any land adjoining or adjacent to that land; (b) the doing of any works, the carrying out of any operations or the taking of any steps in relation to any such land or waters for the purpose (i) of preventing or minimising, or remedying or mitigating the effects of, any significant harm, or any significant pollution of controlled waters, by reason of which the contaminated land is such land; or (ii) of restoring the land or waters to their former state; or (c) the making of subsequent inspections from time to time for the purpose of keeping under review the condition of land or waters

Contaminated Land EPA 1990 13 s 78 A(9)(b) ‘Appropriate person’ means any person who is an appropriate person, determined in accordance with s 78 F, to bear responsibility for any thing which is to be done by way of remediation in any particular case s 78 F(2). . . ‘any person, or any of the persons, who caused or knowingly permitted the substances, or any of the substances, by reason of which the contaminated land in question is such land to be in, or under that land is an appropriate person

Contaminated Land EPA 1990 14 Circular Facilities (London) Ltd v Sevenoaks District Council [2005] R (National Grid Gas PLC (formerly Transco) v Environment Agency [2007] HL

Contaminated Land EPA 1990 15 Class A Persons s 78 K Class B persons s 78 F(4) Allocating Liability (a) liability groups (b) exclusion tests Apportionment of liability Service of Remediation Notice s 78 E(1) and Regs 4&5 Appeal s 78 L(1) Regs 7 & 8 Non-compliance offence s 78 M Enforcement agency works s 78 N Cost recovery s 78 P Public Register s 78 R Reg 13