Contaminated land — Remediation — Appropriate person — Claimant’s statutory predecessor responsible for contaminating land — Environment Agency finding claimant “appropriate person” within Environment Protection Act 1990 — Claimant applying for judicial review — Whether claimant liable for proportion of cost of remediation — Application dismissed
The claimant company applied for judicial review of a decision, by the defendant agency, that it was an “appropriate person” within Part IIA of the Environment Protection Act 1990 in respect of contaminated land upon which a gasworks had formerly stood. The site had been developed for housing and consisted of 11 privately owned residential properties. The defendant’s decision meant that the claimant was liable for a proportion of the costs of remedying the contamination.
The decision was made on the basis that the contamination had been caused by one or more of the claimant’s predecessor gas companies, which had operated at the site until it was sold for development.
The claimant contended that the defendant’s decision was wrong in law since: (i) it had not caused or knowingly permitted the contamination in question and so could not be an “appropriate person” within section 78F(2) of the Act; (ii) the conditions for liability under the then applicable legislation had not been satisfied when the predecessors’ responsibilities were transferred to it; and (iii) even if they had been, that could not operate to transfer any liability under the Act, which imposed a new liability and had not been in force at the time of the relevant transfers.
Held: The application was dismissed.
(1) Section 78F made it clear that primary responsibility for the remediation of contaminated land should rest with the original polluter, in preference to innocent owners or occupiers, unless the original polluter could not be found. However, where the contamination had been caused or knowingly permitted by a body such as British Gas or British Coal, or any of its statutory predecessors, the responsibility and thus the statutory liability for that pollution passed to, and was borne by, that body’s successors in title.
(2) It was also clear from section 79(1A), which disapplied statutory nuisance as a remedy for contaminated land, that Part IIA superseded statutory nuisance as a means of securing the remediation of contaminated land. The wording of the statutory nuisance provisions and Part IIA was different, both in the definition of “statutory nuisance” and “contaminated land” and in the terminology giving rise to primary liability. The two regimes could give rise to different results on the facts of a specific case.
(3) Irrespective of the position under the prior statutory nuisance regime, the entry into force of Part IIA meant that contaminated land would be identified and that the person responsible would be liable to clean up the land or pay for the cost of doing so. Such liability could relate to acts undertaken on land that the relevant person had disposed of long before the advent of Part IIA; and it was consistent with parliament’s intention in enacting the Gas Acts transfer provisions that the transferee should step into the shoes of the transferor in respect of future liabilities in connection with past activities of the transferor.
Richard Gordon QC, Richard MacRory and Martin Chamberlain (instructed by Pinsent Masons) appeared for the claimant; Nigel Pleming QC and Stephen Tromans (instructed by the legal department of the Environment Agency) appeared for the defendant.
Eileen O’Grady, barrister
