Landmark contaminated land cases

[2005] EWHC 865 (Admin)

Since the implementation of the contaminated land regime there has been much uncertainty over how regulators and the courts would apply its provisions. Some clarity has been provided in a landmark case decided in mid-June 2004, when the first appeal against a remediation notice under the contaminated land regime was heard at Sevenoaks Magistrates' Court.

The case concerns a former brick works. Clay pits at the site were filled during the 1960s and 1970s with water and miscellaneous waste. A Mr Scott ('Scott') purchased this land from a Mr Kirchen-Goldsmith ('Kirchen-Goldsmith') in 1978, shortly after obtaining planning permission to build residential properties. In 1979, the site was sold to Circular Facilities (London) Limited ('Circular Facilities'), who entered into an informal partnership under which Scott was responsible for developing the site.

In 1980 Scott submitted a geotechnical report to Sevenoaks District Council prepared on behalf of Circular Facilities for the residential development of the site, which was subsequently placed on the planning register. The report indicated the presence of black organic matter on the site and gases bubbling through water in trial pits. In April 2000 the Local Authority identified significant quantities of methane and carbon dioxide being generated in the former clay pits. To reduce the associated risks of asphyxiation and explosion, the Local Authority constructed ground gas protection measures at the houses at its own cost.

In 1991, the Council appointed a team of Environmental Consultants to investigate the site. They concluded that as methane and ground gas was still actively being produced this met the criteria for designation as 'contaminated land' under the Environmental Protection Act 1990.

The Council officially designated the land as contaminated in November 2002, and served a remediation notice on Circular Facilities requiring them to vent the landfill gases and increase aeration of the soil. Circular Facilities promptly appealed to the Magistrates' Court on the grounds that the persons who had allowed the tipping should have been designated the appropriate person. They claimed that they were not aware of the presence of the organic waste and that they had relied on Mr Scott to develop the site.

The judge found Circular Facilities to have 'knowingly permitted' the contamination to be present because the geotechnical report originally submitted in 1980 must have been available to the company as it was on the planning register and submitted on their behalf. Furthermore, the judge reasoned that they must have considered the risks of investing in development land that had been used as clay pits. The judge stated that Circular Facilities could have commissioned its own report on the risk posed by landfill gas, and the failure to deal with the problem posed by the landfill gas meant Circular Facilities had knowingly permitted its presence and was thus an appropriate person.

Under Part IIA the enforcing authorities must identify anyone who has caused or knowingly permitted the contamination to occur. When more than one person is identified, the enforcing authority must apply a series of 6 exclusion tests to see if any of the persons can be excluded from the liability group. In this case, the 6th of these exclusion tests was most relevant. The test excludes from liability any persons who have caused or knowingly permitted the presence of the contaminants (e.g. the original polluter) where another person has subsequently introduced a pathway or receptor. This test only applies where development or change of use has occurred on the land.

Applying the 6th exclusion test, Circular Facilities was found solely liable as the appropriate person because they had introduced the pathway (service entry points, cracks or fissures in the concrete slab floors of the houses) by which the contaminant (landfill gas) could reach the receptors (the householders) that completed the pollutant linkage and resulted in the determination of the land as contaminated.

This case is important as it indicates that developers must take steps to verify that all necessary remediation has taken place prior to redevelopment. This should also remind us that the 'polluter pays' principle will not always apply under the regime and the risk of liability, as a 'knowing permitter', of contamination is a real one.

Broad assumptions should not be made as to whether sites are likely to be contaminated, and redevelopment under the planning system may not necessarily offer immunity from designation under the regime, particularly where the redevelopment took place some time ago when remediation standards were not perhaps as stringent.

Finally, this case shows that as polluted land is not necessarily considered to be contaminated (in terms of the Environmental Protection Act 1990) if it is not harming anyone, the very act of development may be the trigger to render the land as contaminated, by providing a pathway by which contamination may reach an environmentally sensitive receptor.