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Contaminated land update

There have been two recent developments in the area of contaminated land. This is something of a “first” for this area of law bearing in mind that only a small number of sites have been formally designated as “contaminated” under Part IIA EPA 1990 and only a very few Remediation Notices have in fact been served.

The first development concerns the decision of the parties in the case of Circular Facilities (London) Limited -v- Sevenoaks District Council to settle out of Court. In that case the High Court dealt last year with the meaning of “knowingly permitted” under the contaminated land regime - at least to the extent of ordering a re-trial because the Magistrates’ Court below had not set out properly their reasoning for deciding that Circular Facilities were imputed with the relevant knowledge. The settlement, which
involves the withdrawal by Sevenoaks of its Remediation Notice, is said to be principally a financial decision, although it is not unreasonable to assume that Sevenoaks were somewhat uncertain about their prospects of success on the law. It is often difficult to ascertain what caused or knowingly permitted contamination, particularly when this occurred decades ago.

The second development is the High Court’s Judgment in the case of R (on the application of National Grid Gas Plc) -v- Environment Agency [2006] EWHC 1083. In that case, National Grid Gas Plc (formerly Transco Plc) applied unsuccessfully for judicial review of the Environment Agency’s decision that it was an “appropriate person” under Part IIA in respect of contaminated land upon which a gasworks had formerly stood. The site had been developed for housing and the Environment Agency’s decision meant that National Grid Gas Plc were liable for a proportion of the remediation costs. In interpreting the expression “appropriate person” the Court looked at the statutory framework for privatisation of the gas industry and at the intention behind Part IIA. It concluded that where there was a transfer scheme designed to pass liabilities seamlessly from the nationalised industry to the private sector and an intention to make the original polluter rather than subsequent innocent owners or the public at large pay for the clean up of pollution, where possible, that is the way the legislation should be interpreted. It was entirely consistent with the intention of Parliament that National Grid Gas Plc was capable of assuming a future liability for past activities of its statutory predecessors, even if no equivalent liability in statutory nuisance existed at the time of the transfer.

For further enquiries please contact Nick Horton (view full profile) on 01892 701313 or email nhorton@ts-p.co.uk.

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