Esso Petroleum Company Limited Against Scottish Ministers And Others
| Jurisdiction | Scotland |
| Judge | Lord Tyre |
| Neutral Citation | [2016] CSOH 15 |
| Court | Court of Session |
| Docket Number | CA103/14 |
| Published date | 21 January 2016 |
| Date | 21 January 2016 |
| Year | 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 15
CA103/14
OPINION OF LORD TYRE
In the cause
ESSO PETROLEUM COMPANY LTD
Pursuer;
against
SCOTTISH MINISTERS and OTHERS
Defenders:
Pursuer: Martin QC, Burnet; Maclay Murray & Spens LLP
First Defenders: Sheldon QC; Anderson Strathern LLP
Third to Seventh Defenders: Jones (solicitor advocate), McPherson; bto
21 January 2016
Introduction
[1] In 2005 the Scottish Ministers, who are the first defenders in this action, resolved to construct the section of motorway near Glasgow city centre known as the M74 Completion, linking the end of the existing M74 motorway at Cambuslang with the M8 motorway west of the Kingston Bridge. Through their agency Transport Scotland, the first defenders appointed Glasgow City Council as managing agent with responsibility inter alia for the procurement process and the land purchase and business relocation process. Land along the motorway route was acquired by agreement or by compulsory purchase. Following a competitive dialogue procedure, the main contract for construction of the motorway was awarded on 4 March 2008 to Interlink M74 JV, the third defender in this action. As its name suggests, the third defender is an unincorporated joint venture created for the purposes of this project. Its partners are the fourth to seventh defenders, respectively Galliford Try Infrastructure Limited, Balfour Beatty Civil Engineering Limited, Morgan Sindall (Infrastructure) plc and Sir Robert McAlpine Limited. By agreement dated 26 October and 6 November 2007, the third defender engaged Jacobs UK Limited and Atkins Limited (“Jacobs & Atkins”) as specialist design consultants. Work to construct the motorway began in about May 2008. Handover to Transport Scotland was achieved on 26 June 2011 and the motorway was opened for public use. A Certificate of Completion was issued by Glasgow City Council on 7 July 2011.
[2] The land upon which the motorway has been constructed included sites formerly used for a variety of industrial purposes. One of those sites, lying generally between Paterson Street to the west, Gloucester Street to the north, and West Street to the east, had been used since 1841 for the manufacture, bulk storage and distribution of liquid chemicals. I shall refer to it as the Albion site. By 2001 the Albion site was in the ownership of Albion Chemicals, whose business was subsequently acquired by Brenntag Inorganic Chemicals Limited which was the second defender in this action. By missives of sale concluded voluntarily on 30 June 2004, the Albion site was acquired by the first defenders. An elevated section of the new motorway, with grass embankments, has now been built upon the Albion site.
[3] In preparation for the M74 Completion project, and prior to entering into the construction contract, Glasgow City Council as agent for the first defenders instructed the preparation of a series of reports by the Babtie Group (who subsequently became Jacobs UK Limited) with a view to mitigating environmental risks associated with contaminated land. In September 2003, Babtie produced a “Stage 3” report identifying appropriate remediation options for land along the proposed route. A section of this report dealt with the Albion site. The report noted the presence of a number of contaminants associated with current and previous land use, including heavy metals, asbestos and hydrocarbons (fuel, oil, phenol, solvents and polycyclic aromatic hydrocarbons). It made no specific mention of chlorinated hydrocarbons. It noted a number of pathways for risk of contamination to groundwater and surface water, including vertical migration to both shallow and deep groundwater and lateral off-site migration of contaminants in groundwater. The risk of such migration occurring was assessed as high, and the report recommended further assessment and modelling of groundwater to assess impacts.
[4] Part 6 of the Employer’s Requirements in the Final Tender issued by the first defenders and accepted by the third defender was entitled “Contaminated Land Pollution Mitigation”. Under the heading “General Requirements”, the tender document provided inter alia as follows:
“1.1 Introduction
1.1.1 The Design, construction, completion and maintenance of the Works shall take into account the presence of contaminated land and groundwater.
1.1.2 The Contractor shall be responsible for the implementation of any supplementary ground investigation he requires to provide information for Design and monitoring purposes.
1.1.3 The Design shall take account of the fact that there may be isolated pockets of previously unidentified contamination. Construction and remediation activities shall take into account the potential for the existence of variable conditions not reported in the findings of the ground investigations or assessments completed to date. For this reason, the Contractor shall operate strict environmental management procedures to ensure tight control of construction activities.
1.2 Objectives
1.2.1 The Design, construction, completion and maintenance of the contaminated land pollution mitigation Works shall achieve the following objectives:
(i) The protection of all environmental receptors including humans, controlled waters, ecology and built structures, both during construction and post construction. This will be achieved by the Design and implementation of appropriate mitigation and monitoring procedures…
…
1.5 Qualified Professional Assistance
1.5.1 The Contractor shall appoint for the Design, construction completion and maintenance of all contaminated land pollution mitigation Works a specialist team of environmental consultants. The specialist team shall be appropriately qualified and experienced in the assessment and remediation of contaminated land and brownfield sites…
1.5.2 The Contractor shall employ the environmental consultants throughout the duration of the Contract. The roles and responsibilities of the environmental consultants shall include, but shall not be limited to:
(i) the Design of contamination mitigation Works, including conducting treatabilility studies, where applicable, during the Design stage in order to verify the efficacy of the proposed Design…”
[5] At the corner of Gloucester Street (to the north) and West Street (to the east), there is a roughly square area of land owned by the pursuer, to which I shall refer as the Esso site. It is bounded to the south and west by the Albion site. Historically, the Esso site had been used as a public house until it was acquired by the pursuer in about the 1950s for redevelopment as a petrol filling station. It continued to be operated, latterly by a wholly‑owned subsidiary of the pursuer, as a petrol filling station and shop until about March 2013. It is currently in a derelict condition.
[6] Demolition of buildings, tanks and other structures on the Albion site commenced in May 2007, in terms of a contract entered into between Glasgow City Council as agent for the first defenders and CEP Demolitions Limited. The floor slabs and concrete hard standing covering the site were removed in 2008. Other works included demolition and removal of the drainage system and below-ground tanks and pipes. In 2008, after demolition had taken place but before construction of the motorway on the site had begun, investigations carried out by Jacobs & Atkins on behalf of the third defender disclosed the presence of halogenated chlorinated hydrocarbons in groundwater beneath the Albion site. The compounds identified included Tetrachloroethene (PCE), Trichloroethene (TCE), 1,2 Dichloroethene (DCE) and Vinyl Chloride (VC). The latter two compounds are degradation products of PCE and TCE. It is known that PCE and TCE were among the chemicals stored from time to time on the Albion site. All of these compounds pose risks to human health: all are toxic and some are known or suspected carcinogens. Boreholes and trial pits were dug at locations across the Albion site; some of these were close to the Esso site boundary. The pursuer carried out its own investigations. The results obtained from the various parties’ investigations indicated that there were concentrations of PCE, TCE and degradation products including VC present in soil and water in made ground within the Albion site at levels in excess of the designers’ calculated remedial targets.
[7] It was concluded that further action was needed to mitigate the risks of off-site migration of contaminants and associated risks to human health. Particular attention was paid to the elimination of any risk to the health of the occupants of residential properties on the east side of West Street. Various remedial options were considered. The option selected was a “funnel and gate” system, whereby potentially contaminated groundwater would be contained within the Albion site and funnelled towards an exit “gate” for collection and disposal to sewage. Jacobs & Atkins’ investigations indicated that the direction of flow of groundwater within the Albion site was generally in a southerly direction, although a possible divide in groundwater direction was noted in the northern part of the site. It was proposed that the groundwater be funnelled towards a “gate” in the south-eastern corner of the site.
[8] Containment and funnelling of contaminated groundwater within the site required the construction of an impermeable cement/bentonite barrier around the boundaries of the site. A difficulty was, however, identified with regard to the Esso site. If an impermeable barrier were constructed along the boundary between the Albion and Esso sites, Jacobs & Atkins considered that water levels would build up outside the barrier, within the Esso site, to an extent likely to cause surface flooding. Accordingly, in order to avoid long term risk of flooding of land perceived to be upstream of the Albion site, especially within the Esso site, Jacobs & Atkins recommended that the northern boundary of the...
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