UK: Contaminated Land – The UK Regime is Getting Ready to Bite

Last Updated: 6 January 2003
Article by Aidan Thomson

The contaminated land regime, set out in Part IIA of the Environmental Protection Act 1990, came into force in England in April 2000. Those in the UK aviation industry – in particular manufacturers and airports – should note the provisions of this regime which are summarised here by Aidan Thomson from BLG’s Environmental Group.

Whilst the enforcing authorities have been slow to use their new powers to date, it is widely acknowledged that this will not always be the case. Any company, including those in the aviation industry, that has polluted a property in the course of its activities or that currently owns or occupies historically contaminated property is at risk of liability under the new regime.

The Purpose of the Regime: The purpose of the regime is to identify and remediate unacceptable risks from contaminated land to specified "receptors". Broadly speaking, receptors are people, animals, designated ecological systems, buildings, commercial and domestic crops, and "controlled waters" (surface water, coastal water and groundwater). A risk is considered unacceptable if contamination results in significant harm or a significant possibility of significant harm.

Who is responsible for identifying contaminated land and enforcing the regime? Local authorities have the primary responsibility for the identification of contaminated land. They have prepared strategies for identification that they are now implementing. In addition, local authorities together with the Environment Agency (and the Scottish Environment Protection Agency ("SEPA")) are identifying a subset of contaminated properties with special characteristics. These are known as "special sites". In particular, a contaminated site that puts an aquifer at risk is a special site. Local authorities enforce the remediation of contaminated land and the Environment Agency (and SEPA) enforce the remediation of special sites.

Who is liable? Persons who "caused or knowingly permitted" the presence of the contaminants on the property are primarily liable for its remediation.

  • A person is considered to have "caused" contamination if its acts resulted in the contamination of the property in question. The person does not need to have been negligent. Nor does the person need to have owned or occupied the land in question.
  • A person is considered to have "knowingly permitted" contamination if it did not cause the contamination at a property but knew (or, perhaps, should have known) about the contamination and failed to remediate having had a reasonable opportunity to do so.

For any given contaminated site, there may be a number of persons who caused or knowing permitted the contamination in question and who are therefore liable for its remediation. However, if the enforcing authority cannot find a single causer or knowing permitter after a reasonable inquiry, liability defaults to the current owner or occupier of the property.

How is the regime enforced? The enforcing bodies have the power to serve remediation notices on the persons they consider to be liable for the contamination, as indicated above. Remediation involves the removal of unacceptable risks from contamination, either by removing the contaminants entirely or by breaking the link between the contamination and the receptor. Failure to comply with a remediation notice without reasonable excuse is a criminal offence and a fine of up to Ł20,000 may be imposed together with an additional fine of up to Ł2,000 for every additional day that the notice is not complied with. Enforcing authorities can remediate contamination themselves and claim their costs from liable parties. In issuing a remediation notice and claiming their costs, they must consider hardship to any person responsible. Enforcing authorities can, if they wish, put a charge on the property in respect of the remediation work which they have paid for if the causer or knowing permitter owns the property.

Is there any way to avoid liability? There are a number of factors that may operate.Aidan is a member of BLG’s Environment Group, which advises on environmental liability and compliance issues (including atmospheric emissions, noise and contaminated land) and environmental insurance in a full range of contentious and non contentious situations. It has been named as one of the top environmental practices in Chambers and the Legal 500 for a number of years and is acknowledged to be top environmental insurance practice. For further information on the Group’s work, visit our web site or call Aidan or Group head Valerie Fogleman in our London office. In our next issue, the Environment Group will consider aspects of the impact of the Kyoto Protocol on the aviation industry. to exclude a causer or knowing permitter from liability. For example, if it:

  • accepts less money for the sale of the site on condition that the purchaser remediates; or
  • sells the site or grants a long lease of it with information of its contaminated condition

the causer or knowing permitter may be excluded from liability at the expense of the purchaser. The exclusion only applies, however, if the purchaser is able to be found when the enforcing authority requires the site to be remediated and the purchaser fulfils specified conditions.

Managing liability going forward: If they are not already doing so, companies in the aviation sector would be advised to manage their potential contamination liabilities as the regime takes hold by:

  • making sure pollution is not being caused at their properties on an ongoing basis;
  • avoiding being cast as knowing permitters by taking steps to remediate contamination at their properties that they did not cause but that nevertheless might present an unacceptable risk; and
  • ensuring that when property interests are created, bought and sold, careful thought is given to the allocation of contaminated land liabilities and in particular to the application of the various exclusions from liability.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

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