Land of our sons

Announced by the Government on 20 March, there exists now, for the first

time, specific contaminated land legislation on historical pollution

incidents. The guidance is to support the implementation of Part IIA of the

Environment Protection Act 1990, which was amended by Section 57 of the

Environment Act 1995. The main objective of the new regime is to provide an

improved system for the identification and remediation of land where

contamination is causing unacceptable risks to human health or the wider

environment, assessed in the context of the current use and circumstances of

the land.

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.

Competing agendas

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.