Redland Minerals Ltd and Another (R) v Secretary of State for the Environment Food & Rural Affairs
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SALES |
| Judgment Date | 04 February 2010 |
| Neutral Citation | [2010] EWHC 913 (Admin),[2010] EWHC 561 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 February 2010 |
| Docket Number | CO/12147/2009,CO/12147/2009-CO/12111/2009 |
[2010] EWHC 561 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand
London WC2A 2LL
Before: Mr Justice Sales
CO/12147/2009
CO/12111/2009
Mr David Hart QC and Mr Joliffe (instructed by Norton Rose of London) appeared on behalf of the Claimant
Mr Maurici and Mr Lewis (instructed by Treasury Solicitor) appeared on behalf of the Defendant
Mr Harrison QC appeared on behalf of the First Interested Party
Mr Reed appeared on behalf of the Second Interested Party
Mr Jones and Mr Ormondroyd appeared on behalf of the Third Interested Party
Mr Hill QC appeared on behalf of the Fourth Interested Party
This is an oral hearing for the Claimant (“Crest”) to apply for permission to bring judicial review proceedings to challenge a remediation notice made under Section 78E of the Environment Protection Act 1990 (as amended) (“the 1990 Act”) issued against Crest in a revised form dated 22 July 2009 by the Secretary of State.
The remediation notice relates to land at St Leonard's Court, Sandridge, Hertfordshire (“the Site”). The Site is contaminated by bromide and bromate in the soil which is entering the local water course. The notice identifies Crest as an “appropriate person” within the meaning of the 1990 Act and as liable to meet certain remedial costs -
“by reason of having caused or knowingly permitted [bromide and bromate] by reason of which the contaminated land to which this notice relates is contaminated land, to be in, on or under that land.”
The notice requires Crest to undertake certain assessment actions and certain interim remedial treatment actions. The assessment actions relate to monitoring the impact of bromide and bromate in local water supplies. The interim remedial actions relate to contributions Crest is required to make to the cost of pumping and treatment of contaminated ground water by Veolia Water Central Ltd(“Veolia”, the local water supply company) and to the cost of disposing of such water by Thames Water Utilities Ltd(“Thames Water”, the local sewage company).
The background to the application was helpfully summarised by Mr Hart QC, for Crest, in his opening. From the 1950s to about 1980 undertakings, which have now become part of the undertaking of Redland Minerals Ltd (“Redland”), carried on chemical production on the Site. The work was carried on in buildings erected on hardstanding on the Site. In the buildings there were sump holes used to collect the waste bromide and bromate generated by the chemical processes carried on there. All the bromide and bromate now at the Site derived from that period. There was an element of leakage into the soil at the Site during that period. The chemical works then ceased to operate.
In due course Crest, a developer of residential properties, identified the Site as a potential development site. Crest carried out some testing of the Site and then acquired it from Redland in September 1983.
In early 1984 Crest carried out some preliminary preparatory work on the Site. It demolished the existing buildings and broke up the hardstanding. However, no construction works were carried out for a period of two-and-a-half years after that, until the residential development was carried out in 1986 and 1987.
In that two-and-a-half year period the Site was left exposed to the elements. The removal of buildings and hardstanding meant that rain had a greater effect in washing bromide and bromate down into the soil than would otherwise have been the case. This effect occurred across the Site, including in relation to the sumps, which leaked.
Before Crest commenced development works in 1986 it excavated and disposed of a shallow layer of soil of between 1 to 1.5 metres depth across the Site and dug out the sumps. This was done in the hope of removing any soil contaminated with bromide. (At the time, as the inspector subsequently found, Crest did not appreciate that bromate might also be present in the soil and create problems.) Unfortunately, the excavations by Crest were too shallow and failed to remove all the contaminants in the soil at the Site. They had by then penetrated farther into the ground, in part because of the accelerated infiltration into the lower part of the ground at the Site caused by the greater exposure of the Site to rain as a result of the demolition of the buildings and hardstanding by Crest.
Gradually, over time, the bromide and bromate which remained in the ground at the Site has worked its way down into the local water course and created a contamination effect in the water supplies drawn from that source.
In about 1987 Crest sold off the land.
The 1990 Act was amended by the Environment Act 1995 to introduce a regime (contained in Section 78A and following of the 1990 Act, as amended) requiring remedial works to be carried out in relation to contaminated land. The provisions came into effect on 1 April 2000.
Section 78A(2) provides:
“(2) ‘Contaminated land’ is 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) pollution of controlled waters is being, or is likely to be, caused;
…”
Section 78A(7) provides:
“(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 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 the land or waters;
and cognate expressions shall be construed accordingly.”
Section 78E of the 1990 Act (as amended) imposes a duty on an enforcing authority to require remediation works in respect of contaminated land. In this case, St Albans District Council made a decision dated 12 June 2002 that the site was contaminated land and referred the case to the Environment Agency to take enforcement action. It was then the responsibility of the Environment Agency, in the first instance, to issue a notice requiring appropriate persons to assume liability to carry out remedial works and to specify what those works should be.
Section 78F of the 1990 Act (as amended) provides in relevant part as follows:
“(1) This section has effect for the purpose of determining who is the appropriate person to bear responsibility for any particular thing which the enforcing authority determines is to be done by way of remediation in any particular case.
(2) Subject to the following provisions of this section, 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.
(3) A person shall only be an appropriate person by virtue of sub-section (2) above in relation to things which are to be done by way of remediation which are to any extent referable to substances which he caused or knowingly permitted to be present in, on or under the contaminated land in question.
…..
(10) A thing which is to be done by way of remediation may be regarded for the purposes of this Part as referable to the presence of any substance notwithstanding that the thing in question would not have to be done —
(a) in consequence only of the presence of that substance in any quantity; or
(b) in consequence only of the quantity of that substance which any particular person caused or knowingly permitted to be present.”
It is clear from these statutory provisions that “contaminated land” is only such if contaminated at the date it is determined to be such land – in this case, in 2002. It is also clear from Section 78F(2) that an appropriate person is someone who has caused or knowingly permitted the relevant substances which make that land at the time of the relevant determination “such land” (that is to say, contaminated land) to be in, on or under that land. Other parts of Section 78F make provision for a division of responsibility amongst multiple appropriate persons.
In this case, the Environment Agency issued a remediation notice identifying both Redland and Crest as appropriate persons in respect of the site. They both appealed to the Secretary of State, who referred the appeal to an inspector to hold an inquiry and report. For present purposes, I focus on Crest's appeal in respect of its liability under the remediation notice.
At the inquiry it was common ground on all sides that the particular relevant question in issue on this application was whether Crest had caused the bromide and bromate to be present in, on or under the land comprising the Site so as in fact to render that land “contaminated land” as at the date of the determination...
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