CONTAMINATED LANDENVIRONMENTAL PROTECTION ACT 1990 PART IIA

(INTRODUCED BY ENVIRONMENT ACT 1995)

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Environmental Law

Contaminated Land2

Statutory regime defines contaminated land andregulates allocation of liability/compensation/clean-up

Part IIA Environmental Protection Act 1990 Contaminated Land (England) Regulations 2006DEFRA Circular 01/2006 Contaminated LandDEFRA Guidance on legal definition of CL, 2008Radioactive Contaminated Land (Modification of

Enactments) (England) Regulations 2006

Contaminated Land3

Difficulties in regulating contaminated land:1. Uses of land are diverse and diffuse, eg

agriculture

Savage v Fairclough [2000] EnvLR 183 CA 2. Potential consequences:Harm to human health Hancock and

Margereson vJW Roberts [1996] EnvLR 304 CAEnvironmental harm Cambridge Water [1993]3. Nature of contamination

Contaminated Land4

4. Stigma/blight Blue Circle v Min. of Defence [1999]

5. Clean-up standards ‘Suitable for Use’6. Strict liability7. Retrospective liability/historic

contamination8. Ascertaining who is/who are liable and

how to apportion liability

Definition of Contaminated Land5

S78A(2) EPA 1990 Any land which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land, that: (a) significant harm is being caused or there is a significant possibility of such harm being caused; or(b) significant pollution of controlled waters is being caused or there is a significant possibility of such harmbeing caused

Contaminated Land EPA 19906

S 78A(4) ‘Harm’ means harm to the health of living organisms or other interferences with the ecological systems of which they form part and, in the case of man, includes harm to his property.

S78A(5)‘Significant’ harm or ‘significant possibility of such harm being caused: Statutory guidance issued by Secretary of State [in accordance with s78YA]

Contaminated Land7

Local Authorities and Environment Agency = enforcing authorities in relation to land identified as contaminated land and special sites (Reg 2), respectivelyDuty to act in accordance with guidance issued by

SS(a)Significant pollutant linkage must exist between:(i)contaminant/pollutant and(ii)Receptor or target (humans/property) by a(iii)Pathway(iv)Significant

Contaminated Land8

(b) Receptor/targets(c)Nature of harm(d) Significant possibility of significant harm(e) Pollution of controlled waters s 78A(9) EPA

1990

Identification of contaminated landDuty to inspect s78B(1) EPA 1990 Local AuthorityActing in accordance with statutory guidance(a) contaminated land LA (B) special sites s78C EA

Contaminated Land EPA 19909

Notice and Consultations78B(3)s78H(1) Exceptions s78H(7) s78H(4)Remediation Statement s78(H)7 Remediation

Declaration s 78H(6)Duty to serve Remediation Notices78E(1) (4) Having regard to guidancePrecluded from serving RN(a) other statutory provision

Contaminated Land EPA 199010

(b) unreasonable s78H (5)(a) Remediation Declaration s78H(6)

(c) voluntary remediation(d) hardship s78N(3)(e) s78(H) (5)(d)(e) enforcing authority is appropriate person

s78H(5)(c)(f) imminent danger of serious harm or

pollution s 78N(3)(a)

(g) pollution of controlled waters. Owners/occupiers s 78J

Contaminated Land EPA 1990 11

(h) reasonable enquiry. No appropriate person s 78(3)(f)

Under statutory regime enforcing authority may carry out clean-up works and seek to recover costs from appropriate person

Contaminated Land EPA 199012

s78A(7) ‘Remediation’ means:(a)the doing of anything for the purpose of assessing the

condition of (i) the contaminated land in question; (ii) any controlled waters affected by that land; or (iii) any land adjoining or adjacent to that land;

(b)the doing of any works, the carrying out of any operations or the taking of any steps in relation to any such land or waters for the purpose (i) of preventing or minimising, or remedying or mitigating the effects of, any significant harm, or any significant pollution of controlled waters, by reason of which the contaminated land is such land; or (ii) of restoring the land or waters to their former state; or

(c)the making of subsequent inspections from time to time for the purpose of keeping under review the condition of land or waters

Contaminated Land EPA 199013

s78A(9)(b) ‘Appropriate person’ means any person who is an appropriate person, determined in accordance with s78F, to bear responsibility for any thing which is to be done by way of remediation in any particular case

s78F(2) ... ‘any person, or any of the persons, who caused or knowingly permitted the substances, or any of the substances, by reason of which the contaminated land in question is such land to be in, on, or under that land is an appropriate person

Contaminated Land EPA 199014

Circular Facilities (London) Ltd v Sevenoaks District Council [2005]

R (National Grid Gas PLC (formerly Transco) v Environment Agency [2007] HL

Contaminated Land EPA 199015

Class A Persons s 78K Class B persons s78F(4)Allocating Liability (a) liability groups (b) exclusion

testsApportionment of liabilityService of Remediation Notice s78E(1) and Regs

4&5Appeal s78L(1) Regs 7 & 8Non-compliance offence s78M Enforcement agency works s78N Cost recovery

s78PPublic Register s78R Reg 13