Contaminated land – Remediation – Appropriate person – Statutory predecessor of appellant responsible for contaminating land – Whether appellant “appropriate person” to pay for remediation – Section 78F of Environment Act 1990 – Whether section 78F imposing liability on successors of actual polluter – Appeal allowed
The respondent carried out remediation works to remove contaminating residues from beneath 11 residential properties that were built in the 1960s on land that was formerly used as a gasworks for the production of coal gas. It then sought to recover the cost of those works from the appellant company as an “appropriate person” within section 78F in Part IIA of the Environmental Protection Act 1990, as inserted by the Environment Act 1995. It relied upon the appellant’s status as a statutory successor to British Gas plc, which was itself a successor to the earlier gas undertakings that were responsible for the contamination, and to which had been transferred, by section 49(1) of the Gas Act 1986, all liabilities to which its predecessor was subject “immediately before” the transfer date. The appellant had never owned the site in question and was not responsible for any pollution there.
The appellant brought an action to challenge the respondent’s right to recover from it. Dismissing the claim in the court below, the judge held that the reference in section 78F to the “person… who caused or knowingly permitted” the pollution should be construed to include every person who became the statutory successor to the liabilities of the actual polluters: see [2006] EWHC 1083 (Admin); [2006] PLSCS 118. The appellant appealed.
Held: The appeal was allowed.
The language of section 78F did not support the construction placed upon it by the judge. The emphasis in section 78F was upon the actual polluter as the person who had caused or knowingly permitted the substances in question to be in, on or under the land. Nothing in the Act suggested that an “appropriate person” should be deemed to include some other person. The respondent had not caused or knowingly permitted any substances to be in, on or under the land in question. Furthermore, the transfer of liabilities under the 1986 Act was expressly limited to liabilities existing “immediately before” the transfer date and could not encompass liabilities that had not existed at that date but had come into existence, some nine years later, under the 1995 Act amendment to the 1990 Act. Although the legislation introduced by the 1995 Act was retrospective in that it created a present liability for acts done in the past, it did not create a deemed past liability for those acts.
Richard Gordon QC, Richard MacRory and Martin Chamberlain (instructed by Pinsent Masons) appeared for the appellant; Nigel Pleming QC, Stephen Tromans and Rory Dunlop (instructed by the legal department of the Environment Agency) appeared for the respondent.
Sally Dobson, barrister
