Land of our sons
It is the bright dawn of a new era. Following a number of false starts, Contaminated Land Statutory Guidance is now in force in England, providing, for the first time, specific legislation on historical pollution incidents. John Waters, director, Environmental Resources Management (ERM) and chair of the Environment Industries Commission (EIC) Contaminated Land Working Group, emerges, blinking, to gauge the landscape.
Local authorities will also be required to establish and maintain a public remediation register. This should contain not only information on the current use of the land and the identified contamination, but also the potential effects of the contamination and the measures to control and minimise the impact. In fact, this disclosure element may be a more important driver to encourage remedial action than the threat of prosecution and fines. In cases where the enforcing authority believes there is imminent danger of significant harm they can require urgent remediation to be conducted, either through serving a remediation notice or even conducting the works themselves.
Recover the cost
In the latter case the authority can then apply to recover the cost from the appropriate person. However, the Government's stated objective is to achieve voluntary remediation and resort to the enforcement powers only in cases where agreement cannot be reached.
The Government has confirmed the principle of polluter pays, although purchasers of land also need to be mindful of the caveat emptor (buyer beware) principle as well. Under the new regime, companies may be responsible for long-forgotten pollution incidents which preceded their ownership, and it defines in some detail who is responsible for paying for any investigation and remediation works ("the appropriate person(s)"). Class A persons are those who caused or knowingly permitted the significant pollution to be in, on or under the contaminated land. Class B persons are those who become liable by virtue of their ownership or occupation of the land. The financial liabilities of the Class B person are likely to be limited to the unimpaired value of the land. If the viability of SMEs is threatened by the remediation costs, potentially the local authority will become financially liable. The guidance also states that banks or lending institutions who were either unaware of the impact or had no ability to mitigate its effects should not be considered liable.
Some commentators are concerned that this process of identification of the appropriate persons will result in protracted legal battles which will severely delay the development of contaminated sites. In my view, while there may be a limited number of such cases, the benefits of both a contamination definition and the allocation of responsibility will bring a measure of clarity to the current haphazard system. However, despite some additional money provided by Government, one of the factors that will be critical in the success of this regime will be the availability and competence of local authority resources. Already there are signs that planning authorities and Environmental Health Officers may view remediation strategies differently from the Environment Agency as shown by a number of high profile cases concerning residential development. Local authorities are under pressure to deliver more new homes and meet the Government's desire for 60% of new residential developments to be on brownfield sites, yet the new legislation will promote the development of robust, technically sound and defensible remedial approaches. More than the scope and quality of the actual guidance, balancing these competing agendas may be the primary issue on which the new contaminated land regime will be judged.