UK: High Court orders re-trial of the first appeal against a remediation notice

Last Updated: 24 May 2005
Article by Daniel Chappell and Paul Sheridan

In the first case of its kind, the High Court has overturned an appeal heard in the Magistrates' Court against the service of a remediation notice under the contaminated land regime of Part IIA Environmental Protection Act 1990. The original appeal was itself the first to be made under Part IIA.

The original case, heard in June 2004 involved an appeal against the service of a Part IIA remediation notice by Sevenoaks District Council upon developers, Circular Facilities (London) Limited. The notice concerned a former landfill upon which Circular Facilities had built a number of houses. The appeal turned primarily upon whether Circular Facilities had the requisite knowledge of contamination at the site to be classed as an "appropriate person" to meet the costs of remediation.

The appeal to the High Court questioned the validity of the Magistrates' Court's original decision that Circular Facilities had sufficient knowledge of the contamination. In ordering a retrial, Mr Justice Newman held that the basis upon which knowledge was imputed upon Circular Facilities was not fully considered in the Magistrates' Court.

The issue of knowledge can be crucial in determining liability for contaminated land. The current judgment and the ensuing retrial will be of significance in relation to Part IIA and also potentially other legislation dealing with environment liability where knowledge is a critical factor.

To view the article in full please see below:

Full Article

First court decision on contaminated land legislation

On the 14 and 15 of June 2004 Sevenoaks Magistrates Court heard the first appeal against a remediation notice under Part IIA Environmental Protection Act 1990 on contaminated land.

In the short term it is unlikely that this will signify the start of a flood of cases. This is due to the relatively low number of sites identified as contaminated land and the fact that many will be dealt with through voluntary remediation. Nevertheless pressure for greater enforcement action is building. The Environment Agency has announced that it has set itself a target of securing remediation of 80 Special Sites (generally the higher risk sites) by 2006/7 and DEFRA is examining ways to give the contaminated land regime greater impetus.

For a number of reasons it is not surprising that this first court case on the contaminated land regime involved a relatively low key site and parties. Nevertheless, the court's decision is helpful. It addresses a couple of the many difficult issues in the contaminated land regime and endorses the approach to interpretation of the legislation and guidance being taken by many lawyers.

The outcome of this case and the pressure for increased enforcement activity under the contaminated land regime underlines the need to analyse and apply the legislation and guidance systematically and in detail. This is the case whether allocating risk for contamination in a transaction or responding to regulatory action.


Part IIA Environmental Protection Act 1990 was inserted into the Environmental Protection Act 1990 by the Environment Act 1995. It introduced retrospective liability for contaminated land and has become an important risk allocation issue in a great many transactions involving property. However, due to the time it took to develop the detailed supporting statutory guidance the legislation only came into force in the year 2000 in England and Scotland and in 2001 in Wales.

For a number of reasons relatively few sites have been identified as contaminated land under (75 by June 2004) and proportionately few remediation notices have been served (3 by June 2004).

A lack of local authority resources and motivation and the fact that the legislation was designed to apply mainly to sites that are giving rise to significant risks are contributing factors in the number of sites identified. The requirement for the enforcing authorities to pursue voluntary remediation where possible, problems in finding existing "appropriate persons" to carry out remediation and the generally cautious approach of the enforcing authorities have contributed to the low number of remediation notices.

Facts Surrounding the Appeal

The case before Sevenoaks Magistrates' court concerned a former brickworks which closed early in the 20th century. During the 1960s and 1970s while Mr Kinchen-Goldsmith and then Mr and Mrs Scott owned the land the clay pits were landfilled with a variety of wastes including putrescible matter.

Working with the architect employed by Circular Facilities (London) Limited and under an informal arrangement with Circular Facilities, Mr Scott obtained planning permission on behalf of Circular Facilities to build eight houses. Mr and Mrs Scott sold the land to Circular Facilities which developed and sold the houses in the 1980s.

A geotechnical report dated 12 July 1978 on the condition of the site was provided to Sevenoaks District Council in March 1980 in support of the planning application. It was put on the planning register and was therefore available to Circular Facilities and its advisers.

Sevenoaks District Council became so concerned that the former clay pits were emitting significant quantities of carbon dioxide and methane that it installed gas protection measures in the houses during the 1990s. Nevertheless its concern over the risk continued and it appointed an environmental consultancy to advise on the issue once Part IIA Environmental Protection Act 1990 came into force in England. The environmental consultancy advised that the carbon dioxide and methane from the former clay pits was still giving rise to a "significant possibility of significant harm" to the health of residents. The court noted that the gas was causing a real risk of combustion and asphyxiation.

Sevenoaks District Council formally identified the site as contaminated land on this basis and served a remediation notice on Circular Facilities in November 2002. Circular Facilities appealed against the remediation notice. While the remediation notice was suspended pending the appeal, Sevenoaks used its powers to take emergency remediation action where there is an imminent danger of serious harm. It intended to then use its power to recover its costs from the appropriate person.

The Issues and Decision

The first argument raised by Circular Facilities was that the court could not affirm the remediation notice because it had been made redundant by virtue of the fact that Sevenoaks District Council had already carried out the work under its emergency powers. The court dismissed this argument pointing out that the legislation and guidance contemplate this situation and that determining the appeal on the remediation notice would establish liability for costs incurred by SDC.

Circular Facilities' second ground of appeal was that it had been unreasonably determined as an "appropriate person". The question was whether Circular Facilities knowingly permitted the contaminants to be in, on or under the land.

Although "knowingly permitted" is a common phrase in environment law very little case law is available on its meaning. The court therefore applied the government's guidance in Circular 02/2000 which broadly states that to knowingly permit substances to be in, on or under land a person must have knowledge of their presence, power to prevent them from being there and the ability and reasonable opportunity to prevent their presence or remove them. Circular Facilities argued that it did not have the requisite knowledge but the court did not accept the argument because the geotechnical report submitted on behalf of Circular Facilities had identified organic matter in the ground and gas bubbles rising through water in the trial pits. The court took the view that the Circular Facilities must have considered the report and therefore must have had knowledge of its contents. The court went on to state that Circular Facilities could have investigated the risk and could have taken measures to remove the risk. It considered that Circular Facilities' failure to deal with the gas meant that it had permitted its presence.

Under Part IIA the enforcing authorities must identify anyone who has caused or knowingly permitted the contamination in question to be in, on or under the land. Those persons are known as "Class A" appropriate persons. If no such persons can be found then the enforcing authority must look to the current owner and occupier of the contaminated land. Those persons are known as "Class B" appropriate persons. In this case Sevenoaks District Council did identify Class A appropriate persons, namely Mr Kirchen-Goldsmith, Mr Scott and Circular Facilities.

Where more than one Class A appropriate person is identified the enforcing authority must apply a series of exclusion 6 tests in strict order to see if any of the Class A appropriate persons must be excluded from liability.

The Severnoaks case turned on the 6th and final exclusion test. That test excludes from liability any Class A appropriate persons who have caused or knowingly permitted the presence of the contaminants (this might include the original polluter) where another Class A appropriate person has subsequently introduced a pathway or receptor which created the risk in question. The court accepted that the intention behind the contaminated land regime is to make a developer of land that creates the risk of harm from contaminants on a site responsible for removing or preventing that risk.

Applying the 6th exclusion test the court held that Circular Facilities had introduced the pathways (the housing development) and the receptors (the householders) thereby creating the risk from the carbon dioxide and methane. It therefore decided that both Mr Scott and Mr Kinchen-Goldsmith should be excluded from liability. It dismissed Circular Facilities' appeal and held that Sevenoaks District Council had been correct in serving the remediation notice on Circular Facilities alone.


Apart from representing a milestone in the development of the contaminated land regime this case does provide some useful indications on the approach of the courts. It confirms (i) that the courts are likely to follow the guidance in Circular 02/2000 and give the term "knowingly permitted" a relatively broad meaning and (ii) that the courts are likely to apply the exclusion tests in the statutory guidance strictly. It also serves as a useful reminder of the need to apply Part IIA Environmental Protection Act 1990 and the supporting statutory guidance systematically and to consider the outcome of all the exclusions tests when analysing contaminated land risks.

At a broader level the contaminated land regime was always intended to address the more serious cases of contamination that are giving rise to real risks. It was also intended to fit into a wider regulatory system including the planning controls. Nevertheless the DEFRA and the Environment Agency clearly see the need to increase action under the contaminated land regime. In particular, sites that have been investigated but have not yet been subjected to active enforcement are likely to be targeted in the near future.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 23/05/2005.

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
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.