UK: Brownfield Land In The UK: Directors’ And Officers’ Liability


In this first in a series of briefings on topics relevant to those involved in brownfield land, we look at the issue of directors' and officers' personal liability.

We are often asked to advise on the potential personal liability of a company's directors and officers where contamination emanates from or has been identified at company land or where other potential environmental problems are identified.

The risk

As a general rule, the risk of directors and officers incurring personal liability for offences committed by their company is relatively low in the UK (in contrast with the position in many civil law countries).

However, of course every rule has its exceptions and the trend in director prosecutions is upwards, so the risk should not be ignored.

Derivative (or so-called "parasitic") liability

It is important for all company directors and officers to be aware that, although such liability does not exist as a matter of more general company law, as a matter of environmental law there are provisions in most of the key UK environmental statutes1 that expressly provide for the parallel personal liability of directors and similar senior officers where the company is found guilty of an environmental offence.

The kind of corporate offences that have the potential to create directors' personal liability include:

  • Failure to comply with clean-up notices
  • Pollution of water courses
  • Carrying out regulated operations without the appropriate environmental permit
  • Acting in breach of permit conditions

Such liability, where it arises, is criminal in nature; although insurance can be purchased in respect of directors' defence costs.

However, it is fair to say that, at least in the case of all but the smallest companies (where risks are higher due to the degree of directors' day-to-day control over and hands on involvement with physical operations), directors' personal liability for corporate environmental offences is very much the exception, not the rule.

The need for personal fault

In all cases, the mere fact that a company is liable for an environmental offence will not of itself trigger parallel personal liability. A degree of individual culpability is also required.

The general rule is that a director (or similar officer of the company) will only be liable where the relevant offence is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director or other similar officer of the company or any person purporting to act in such capacity (which would, for example, include shadow directors).

According to relevant case law in this area, "consent" exists where a director/officer is well aware of what is going on and agrees to it, and "connivance" where the director/officer is equally aware of what is going on but his/her agreement is tacit (i.e., not actively encouragingwhat happens but letting it continue and saying nothing about it).

What is sufficient to make an offence "attributable to [the director's/officer's] neglect" is less certain; although it does seem clear that personal liability for neglect will only arise where a director/officer has failed in his/her own duties (as opposed to failing to prevent the company at large committing an offence) or failed to see that the law was observed once aware of a problem.

In practice, it is a question of fact and degree in each case whether the individual in question is in a sufficient position of control and guidance.

Direct personal liability

Obviously, if a director or officer of a company personally tips a drum of chemicals into a river or otherwise personally causes an environmental problem, he or she will be liable to be prosecuted for their own offences in their own right, just as any other member of the public would be, irrespective of their employment position.

However, such an extreme scenario is unlikely for most company officers, the more likely culprit being a less senior employee.

Duties to carry out remedial action

There is a theoretical risk that directors could be liable in their personal capacities to clean up contamination (or pay the regulator's costs of clean-up).

It is a common misconception that the UK's contaminated land regime makes it an offence to cause or knowingly permit contamination or own/occupy contaminated land. That is not the case.

Instead, the contaminated land regime sets out the circumstances in which the regulatory authorities can require clean-up of land by (or recover their own costs of doing so from) those who "cause" or "knowingly permit" contamination or occupy the contaminated land. Only if a regulatory clean-up requirement arises, does it then become an offence not to carry out the necessary remediation or otherwise cooperate.2

In the context of contaminated land liability in the UK, in principle, there is no technical legal reason why a director/officer of a company cannot personally be responsible for clean-up under contaminated land (or water pollution) legislation as a "Class A" (primarily liable) person in his or her own right.

This could occur if the relevant director/officer could be shown to have "caused" or "knowingly permitted" the contamination in question through his or her decision making or other actions/inactions. The smaller the company, the more likely this is in practice.

Theoretically, the existence of directors of a company that has ceased to exist (and cannot therefore be a target itself) but that caused historic contamination of a site, might serve as a defence to the current corporate owner/occupier being liable as a "Class B" person (even if the relevant director/officer of the predecessor company is also ultimately able to avoid liability on the grounds of financial hardship).

It should not be forgotten in this context that, subject to certain specific exceptions, the mere fact that contamination exists at or under a site in the UK will, generally, not automatically trigger regulatory action (or, obviously, third-party claims).


Broadly speaking, UK environmental laws do not impose clean-up obligations on a company (or, therefore, its directors) merely because a site is or becomes contaminated, unless the pollution is also actively causing harm (or clean-up is triggered in some other way such as on permit surrender).

Indeed, the best environmental option can be to leave contamination in situ if it is not causing or likely to cause a problem.

Our Environmental Law team has recent experience of representing individual directors facing prosecution by the Environment Agency. Such cases can be enormously stressful for the individual concerned (and their families).

Regulatory investigations and prosecutions can be long, drawn-out affairs, increasing the impact on the director/officer concerned. All too often, the limits of indemnity for defence costs in companies' directors' and officers' (D&O) policy limits prove to be wholly inadequate, adding an extra degree of pressure and stress. These indemnity limits should always be checked. Ultimately, a conviction may result in loss of employment and even disqualification from acting as a director.

Directors and officers of companies whose activities have the potential to impact on the environment should be aware of the scope of their individual role, particularly in relation to known or suspected contamination problems, and continue to take environmental risks seriously.

Despite dwindling central government funding for contaminated land enforcement, the trend is towards more rather than less environmental law enforcement action against individual directors. However, in most cases, the application of common sense, careful due diligence in an M&A context and a watchful eye thereafter will avoid the pitfalls described above.


1. Such provisions are, for example, to be found in key UK statutes such as the Environmental Protection Act 1990, the Water Resources Act 1991 and the Environmental Permitting Regulations 2010.

2. Offences may, however, also be committed as a result of the same pollution under other legislation such as that of protecting the aquatic environment, certain waste laws and/or certain environmental permits. There is also more recent legislation (implementing the EU Environmental Liability Directive) that imposes so-called self-executing duties on certain companies to carry out remedial action and notify the regulator of contamination problems without waiting for regulatory intervention. Not to do so is an offence, and this legislation (the Environmental Damage (Prevention and Remediation) Regulations 2009, as amended (the "EDR")), also includes provision for parallel personal liability of company officers who are proved to have consented to or connived in the commission of the offence, or neglect or where it is attributable to their neglect. However, although the trigger conditions for such liability are complex, broadly speaking duties under the EDR only apply to more severe pollution incidents and only to new pollution caused after 1 March 2009.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.