A Kent developer that was prosecuted in the first ever trial under the contaminated land regime has been awarded a retrial.
The High Court has allowed an appeal by Circular Facilities against a magistrates’ court decision that it must pay for emergency remedial works carried out by Sevenoaks District Council on a housing site near Tonbridge, Kent.
The site was a former brickworks that Circular had developed in partnership with the previous owner in the 1980s. It was contaminated with methane and carbon monoxide gases that were seeping from clay pits that had been infilled with organic matter more than a decade earlier.
According to the council, Circular had been aware of a soil investigation report submitted to the council in 1980. The report detailed the contents of the pits and pointed to potential contamination.
The council claimed that, although Circular had not polluted the site, it had “knowingly permitted” the contamination by allowing the continued presence of the organic material, in breach of section 78 of the Environmental Protection Act 1990.
However, Newman J today ruled that, in holding Circular responsible for the remedial costs, the trial judge had failed to make a “clear finding” as to whether the previous owner’s knowledge of the contents of the report could be imputed to Circular.
“It is not clear in whom the judge concluded the requisite knowledge was reposed,” he said.
The judge ordered a retrial, although he acknowledged that a trial on “matters as historic as this, without reference to adequate documentation, giving rise to complex principles of law” will present a “demanding set of proceedings for a district judge to resolve”.
Sevenoaks council’s legal adviser Valerie Fogleman, who joined the environmental team at City firm Lovells this month, said that the ruling illustrated both the complex nature of the contaminated land legislation and the difficulties in enforcement faced by local authorities.
She said: “The decision does not mean that companies that caused or knowingly permitted contamination due to past pollution incidents, or that own or occupy contaminated land, will not be required to remediate it. Rather, it shows the detailed investigations that may have to take place to establish the requisite knowledge linking companies and other persons to the contaminating substances.
“What has also been made clear is that a person need only have knowledge of a substance; he does not have to know that it could cause harm.”
Infilling, largely with organic matter from a nearby lake, began at the site in the 1960s and continued until around 1970.
The previous owners bought the land in 1978 with the benefit of planning consent for eight houses. In November 1978, they sold the site in a joint venture with Circular Facilities, which immediately started began to build the development. The last house was sold in 1985.
In 1991, Sevenoaks and Kent councils discovered that the land was emitting significant concentrations of methane and carbon monoxide gases, and continued to monitor the levels. In 2000, after determining an imminent danger of serious harm to local residents, the council undertook remedial works.
Circular Facilities (London) Ltd v Sevenoaks District Council Administrative Court (Newman J) 10 May 2005.
Howard Smith (instructed by Benson Mazure & Co) appeared for the appellant; Meyric Lewis (instructed by the legal department for Sevenoaks District Council) appeared for the respondents.
References: EGi Legal News 10/05/05
