Contamination in UK Law

He was entitled to take the view that the outstanding details of the remediation works and the elements of uncertainty were not such as to affect that judgment or to create a likelihood of significant effects. In other words this was a case where the Secretary of State was reasonably satisfied that the boundary would not be crossed.

On that basis the Secretary of State's decision in the present case suffered from a similar flaw. I have already indicated that it must have been based in part on an assessment that the proposed remediation measures would be effective to prevent the significant environmental effects that were otherwise likely to arise.

In some cases the remedial measures will be modest in scope, or so plainly and easily achievable, that the Secretary of State can properly hold that the development project would not be likely to have significant effects on the environment even though, in the absence of the proposed remedial measures, it would be likely to have such effects.

When making the screening decision, these contingencies must be considered and it cannot be assumed that at each stage a favourable and satisfactory result will be achieved. There will be cases in which the uncertainties are such that, on the material available, a decision that a project is unlikely to have significant effects on the environment could not properly be reached.

Where the Secretary of State is contemplating an application for planning permission for development which, but for remedial measures, may or will have significant environmental effects, I do not say that he must inevitably cause an EIA to be conducted. But if prospective remedial measures are not plainly established and not plainly uncontroversial, then as it seems to me the case calls for an EIA.

But I find it quite impossible to say that this was a liability which existed, even as a contingency, "immediately before" the transfers of 1948, 1972 or 1986. It is true that the legislation was retrospective in the sense that it created a potential present liability for acts done in the past. But that is not the same as creating a deemed past liability for those acts. There is nothing in the Act to create retrospectivity in this sense.

The fact of the matter is that there are no "precise provisions" governing the management of waste which escapes unintentionally from the sewerage system. Accordingly they are not "covered by other legislation" in the sense explained by the ECJ. That may not be surprising, since the escapes are by definition unplanned, and therefore outside the scope of the ordinary management regime.