Courts pass landmark judgements on contaminated land

Recent judgements in both the European Court of Justice and in English courts have considerable significance, as Alan Fieldsend of Clarks, a full service law firm based in London and Reading whose specialist arms include a Waste Projects Group, part of a wider Environmental & Projects Group, explains in this special two-part contribution. The first article reports on recent case law and the second part deals with the need for due diligence for local authorities ahead of taking action under Part IIA of the EPA.

The last few months has seen two landmark judgments on contaminated land. In the Texaco case, the European Court of Justice (ECJ) has confirmed that contaminated land is waste.

Background

The ECJ made its judgement of 7 September 2004 in the European Court of Justice case of Vandewalle, Laurent, Mersh and Texaco Belgium SA (case C-1/03, 7 September 2004).

The case involved land pollution caused by leaking underground petrol tanks at a filling station in Brussels owned by Texaco. Texaco, once it found out about the spillage, terminated the operating licence and carried out a partial decontamination. The Belgian authorities wanted to see a full decontamination of the site and claimed that Texaco was responsible for disposing of all the contaminated earth in accordance with strict EU strict waste disposal rules. The Court agreed and found that hydrocarbons which are unintentionally spilled and cause soil and ground contamination are to be considered as discarded and as a result must be classified as waste.

The Court further held that the fact that soil is not excavated has no bearing on its classification as waste.

In addition, Texaco were held responsible for the cost of disposing of the waste as they come within the definition of holder in Directive 75/442 being "the producer of the waste or the natural or legal person who is in possession of it".

Impact of case

Following the Court finding that land should be defined as waste even before it has been dug up, thousands of polluted areas in the UK could now be dealt with under waste legislation rather than the contaminated land regime under Part IIA of the Environmental Protection Act 1990.

This would mean that a local authority, rather than using its powers to identify land as contaminated under Part IIA could ask the Environment Agency to deal with a contaminated site as part of its waste management licensing duties (under section 59 of the same Act), thus passing the cost burden of dealing with pollution to the Agency.

Part IIA case

The second case is Circular Facilities (London) Limited v Sevenoaks District Council that was heard in the Sevenoaks Magistrates Court on 15 June 2004. This is the first case relating to Part IIA to be heard in the English courts and arose from an appeal by a developer/landowner that had been served with a remediation notice by the Council.

Burnt organic material had rotted leading to emissions of carbon dioxide and methane giving rise to a significant risk of asphyxiation and combustion for residents of houses built on the land by the developer, Circular Facilities. The Council spent £46,000 decontaminating the site.

A report, that identified the land as potentially contaminated, was in existence at the time the present owners acquired the property, although there was no evidence that it had been brought to their attention. The Court found that the building development created the pollution linkage and that as the Report was available to Circular then knowledge of its contents could be imputed to them. The subsequent failure of Circular to deal with the escape of gas was the same as permitting its presence.

The Judge consequently held Sevenoaks responsible to reimburse the Council for the remediation costs.

Impact of case

Authorities should take heart from the fact that the Court in this case was readily prepared to accept that Circular was the polluter (as knowing permitter) despite the fact that they had not brought the substances causing the pollution to the site in the first place.

The absence of the person responsible for bringing the substances on to the land meant that the primary responsibility to remediate lay with Circular. Future cases may be more complicated where there are several polluters and the courts are asked to decide how to apportion liability amongst several people. The case demonstrates the importance of an Authority following the procedures set out in the 1990 Act and the Statutory Guidance.

The practical issues of using Part IIA to call for remediation of land are set out in the next article.


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