Landmark case questions ‘polluter pays’ principle

An ongoing court case to determine responsibilty for the clean up of contamination on developed land has called into question the traditional 'polluter pays' principle.

The Circular Facilities (London) Ltd v Sevenoaks District Council stems from work carried out by the local authority to prevent methane and carbon dioxide seeping from the soil through the floors of homes built on a former landfill site.

A complex legal battle followed as the council tried to pin the £46,000 bill on someone, serving a remediation notice on Circular Facilities, the company that developed the site back in the early ’80s.

While not the polluter, as the site had been under different ownership when used for landfill, the council argued that Circular was aware of the contamination when it built on the land and thus was now responsible for the current problems.

In the past courts have traditionally found that those who owned a site when it was contaminated, or in the case of accidental spills owned the pollutants, were responsible for the clean up.

In this case council lawyers have argued that Circular had ‘knowingly permitted’ the contaminants to be left in the land.

The main cut and thrust of prosecution and defense argument has been whether Circular knew the substances were in the land during its ownership of the site.

Council lawyers argue the company was in informal partnership with the site’s previous owner, who was well aware of its history, and therefore must have known.

The Magistrates Court found in favour of the council, but at appeal the High Court judge Mr Justice Newman ordered a re-trial, saying it was unclear how the magistrates had concluded the developer knew of the gas building up beneath the surface.

Sevenoaks District Council is now appealing against High Court decision, and the case continues.

Regardless of the outcome, the case will serve as a cautionary tale to developers, highlighting the need to ensure they have taken adequate steps to make themselves aware of the state of the land they are building upon – else their past could come back to haunt them many years down the line.

By Sam Bond

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