Permitting Uncertainty: Owners, Occupiers And Responsibility For Remediation
| Date | 01 March 2003 |
| Published date | 01 March 2003 |
| DOI | http://doi.org/10.1111/1468-2230.6602005 |
Permitting Uncertainty: Owners, Occupiers and
Responsibility for Remediation
Daniel Lawrence
n
and Robert Lee
nn
Introduction
In an effort to protect the green belt, the Government has set a target for
60 per cent of all new housing development to take place on ‘brown land’.
1
While
this may seem an ambitious target, the Environment Agency estimates that
there are around 300,000 hectares of land affected by contamination, which is
usually industrial in origin.
2
Although the Government has focussed upon the
regeneration of this land to support development needs, there are many other
environmental, health and social gains that can attach to its remediation.
However, there are significant financial disincentives for developers to remediate
former industrial sites,
3
and the legislation has now adopted a ‘polluter pays’
approach to place the burden of remediation on those responsible for the
problem. Legislative moves in this direction have been slow in coming. Notions
of registers of potentially contaminated land suggested in the Environ-
mental Protection Act 1990 were abandoned,
4
but, given the pressing need to
deal with historic pollution, the Environment Act 1995 which repealed this
provision introduced a far more strict and wide-ranging approach to the
problem.
Part IIA of the Environmental Protection Act 1990 imposes a duty upon local
authorities to inspect and identify contaminated land in their area. Once located,
the local authority, or in certain situations the Environment Agency, must take
action to ensure the remediation of the site, by the service of a formal remediation
notice if necessary. On any analysis Part IIA is harsh in its effect, imposing
liability for historic pollution that is both strict and retroactive.
5
There is no
n
Freshfields Bruckhaus Deringer, London.
nn
Cardiff Law School, Co-Director of the ESRC Research Centre for Business Relationships,
Accountability, Sustainability and Society. We are grateful for the comments of colleagues at
Freshfields and at Cardiff on drafts of this paper.
1 See DETR, Planning for the Communities of the Future: A White Paper 23 February 1998, and
Planing Policy Guidance Note 3 (PPG 3) Housing (revised 7 March 2000) para. 23. This sets a
target that, by 2008, 60 per cent of all new housing should be built on brown land.
2 Annex 1A ‘A Statement of Government Policy’ of DETR Circular 02/2000 Environmental
Protection Act: Part IIA Contaminated Land (20 March 2000) para. 5.
3 The margin for house builders is 15 per cent on greenfield sites as opposed to 6% on brown land;
see C. Clover, ‘Home is where the harvesters used to be’ Daily Telegraph 18 July 2002.
4 Section 143 Environmental Protection Act 1990, the implementation of which was ‘postponed’ in
March 1992 prior to its repeal (without ever being brought into force) by the Environment Act
1995.
5 As introduced by section 57 of the Environment Act 1995. This legislation came into effect in
April 2000 in England (see the Contaminated Land (England) Regulations 2000 (S.I. 2000/227)),
14 July 2000 in Scotland (Contaminated Land (Scotland) Regulations 2000 (S.I. 2000/178)) and
14 September 2001 in Wales (Environment Protection Act 1995 (Commencement No. 20 and
Saving Provision (Wales) Order 2001 (S.I. 2001/3211) to be read in conjunction with the
Contaminated Land (Wales) Regulations 2001 (S.I. 2001/2197 (W157)). However, since local
authorities were allowed a fifteen-month period within which to draft inspection strategies, even in
England, regulatory activity under the new regime is only just beginning.
rThe Modern Law Review Limited 2003 (MLR 66:2, March). Published by Blackwell Publishing Ltd., 2619600 Garsington Road, Oxford OX4 2DQ, UK, and 350 Main Street, Malden, MA 02148, USA.
requirement on the Environment Agency or a local authority acting as
regulator to show that a person fixed with a remediation notice (‘an appro-
priate person’) demanding the restoration of the site in some way fell below
the industrial standard at the time of the contamination. It is clear that, if
that contamination now threatens significant harm or water pollution, then it is
the duty of the regulator
6
to demand that the site be cleaned up. Doubtless,
the threat of the harm or pollution is taken to justify the strict nature of the
regime, and the ‘polluter pays’ principle dictates that the original polluter
rather than the present owner or occupier should bear responsibility. Yet,
as we shall see, in some ways the harshest form of liability may fall,
potentially, not upon the person who caused the substances to be present
on the land but upon the person who knowingly permitted the substances to
be there.
Because the regime is new and complex there is a range of issues open to
doubt, and this note addresses some of these, but, most particularly, it considers
the liability of appropriate persons. Primarily liability falls upon those who have
caused or knowingly permitted the polluting substances to be in, on or under
the land (‘Class A appropriate persons’). However, if no Class A persons
can be found, then the present owners or occupiers (‘Class B appropriate persons’)
will be liable in default. This note examines Class A liability. It focuses upon how
one might have ‘knowingly permitted’ substances to be in, on or under the land. It
asks what separates this person from a Class B person and on what conceptual
basis a person who has knowingly permitted substances to be on the land should
be grouped together with the persons responsible for their introduction.
7
One reason why this question is significant is that Class B parties face a lesser
degree of liability for they cannot be fixed with remediation liabilities where
the contamination in question involves the pollution of controlled waters
(beyond those which they already face under the Water Resources Act 1991).
8
The two classes are therefore mutually exclusive, and the extent to which innocent
owners or occupiers can constitute persons who have knowing permitted will
directly affect the width of Class B. The terms ‘caused’ and ‘knowingly permitted’
are thus key triggers under the contaminated land provisions
of the EPA‘90 in determining the parties upon whom liability should fall.
There is considerable confusion, however, as to the precise meaning of the
legal concept of ‘knowingly permitted’. It is clear and this note explains that
certain parties will be fixed with responsibility to deal with substances in
on or under the land by the working of the Statutory Guidance, so that to fail
to act will mean that that party has ‘knowingly permitted’ for the purpose
of the formulation set out above. On the other hand, it also argues that parties
coming to the land to discover pollution, or affected by the migration of
contaminants onto their land, will not necessarily become knowing permitters by a
mere failure to act.
6 The legislation charges local authorities with duties to cause land within their areas to be inspected
(s78B (1)). It also charges local authorities and the Environment Agency to follow the
requirements of the statutory guidance (s78B (2)), and to serve notice on all appropriate persons
where contaminated land is identified (s78E (1)). In the right circumstances, failure to act on these
duties may be subject to judicial review (RvCarrick D.C. ex p Shelley [1996] Env L.R. 273).
7 see ss. 78F(2) and (4) of the Act – liability falls upon owners or occupiers where upon ‘reasonable
enquiry’ no other appropriate person may be found.
8 By virtue of ss 161, 161A – D, Water Resources Act 1991.
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