The case concerned an appeal to the High Court following an earlier decision by the Magistrates Court that Circular Facilities was the responsible person for the purposes of section 78F of the Environmental Protection Act 1990 (EPA 1990).

The case was the first of its kind to reach the High Court following the service of a remediation notice by a local authority in respect of an area of contaminated land.

A challenge to the service of a remediation notice on Circular Facilities (London) Limited (CFL) by Sevenoaks District Council on 5 November 2002, was rejected by the Magistrates Court.

The issues coming before the High Court were therefore whether the Council was correct in its finding that CFL was the “appropriate person” on whom to serve the remediation notice, and whether the District Judge was correct in law in upholding the Council’s allocation of responsibility.

The issue before the court centred around whether CFL had known that there had been organic material buried on the site over a period of 6 years, and if the answer to this was in the affirmative, whether this was enough to find that CFL has “knowingly permitted” the substance to be in or under the land.

The High Court held that it was unclear from the District Judge’s decision how the court had come to the decision that CFL had knowledge of the contents of a site investigation report, and therefore knowledge of the presence of the substances, in this case vegetation and other plant matter.

The Court therefore held that it was not enough to infer knowledge of the site investigation report from the fact that the report appeared on the planning register, thereby focusing on actual knowledge, rather than purely deemed knowledge. The appeal was allowed and the High court held that the matter should be remitted to a different district judge for re-trial.

While not having to deal with the remaining issues brought before the court of whether knowledge of the report was enough to find that CFL had “knowingly permitted”, the court did comment on this aspect of the case.

In this regard it was pointed out that the “knowledge” in question relates simply to the substances and not of the potential harm to which the presence of such substances in the soil could give rise, and there was no reason to “exclude responsibility to those who do not know of the potentiality for the chemical reaction or biological process which can affect a substance”.


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