Interpreting the Contaminated Land Regime: Should the ‘Polluter’ Pay?

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Keywords: contaminated land, 'polluter pays' principle, stewardship

Abstract: The contaminated land regime is not as effective as it could be. It is suggested that part of the reason for this is that enforcing authorities cannot afford to clean up land at a faster rate. Yet they are reluctant to recover their costs from Class B persons. There is evidence that local authorities believe that 'innocent' homeowners ought not to face the cost of remediation. This is, at least in part, because of a focus on the 'polluter pays' principle. There seems to be a belief that, as they are not polluters, homeowners should not have to pay. Unfortunately this conclusion does not follow, leading to a misinterpretation of the 'hardship test' in section 78P of the Environmental Protection Act 1990. Instead, there should be a more explicit recognition that there are other principles in the background framework to the regime. In particular, the principle of stewardship provides a justification for homeowners to pay to remediate their land. If this is recognised, it is hoped that both local authorities and the Environment Agency will be encouraged to recover at least some of their costs from Class B persons which should free up funds to survey more land to determine levels of contamination, and to allow a clean-up of truly orphan sites.

THE REGIME IN OUTLINE

The contaminated land regime was introduced in the Environment Act 1995 and forms Part IIA of the Environmental Protection Act 1990 (EPA 1990). Its general approach is to place a statutory duty on local authorities to survey their land to assess which land is contaminated' and then to impose a duty on the authority to ensure that the land is remediated.2 In order to make the initial determination, the local authority must have regard both to the definition of contaminated land as found in EPA 1990 section 78A(2) and to the additional information provided in DEFRA Circular 01/2006.i The local authority must also determine whether the site is a special site,4 for example, if the site was a nuclear site or was owned by the Ministry of Defence,3 in which case responsibility for the remediation transfers to the Environment Agency.

Once this initial stage is over, the enforcing agency (i.e. the local authority or the Environment Agency in the case of special sites) must tackle the contamination. In doing so it can require that an appropriate person either carries out the remediation works, or meets the cost of the remediation. 'Appropriate person' is defined in EPA 1990, section 78F. There are two classes of appropriate person. The first, 'Class A persons', are those who caused or knowingly permitted the contaminating substance to be on or under the land.6 These people have some causal link with the pollution and could be termed 'polluters'. The second, 'Class B persons', are the current owners or occupiers of the land. These people did not cause the substance to be in or on the land, but are instead in a proprietary relationship with the land.7

This proprietary relationship can take different forms. Holding ownership interests in the land, be it as freeholder or leaseholder, implies considerably different powers over the land from a mere occupation right derived from a personal interest. Whilst the regime does at points treat these different categories of owner differently,8 they can all be Class B persons where there is no Class A person. The arguments relating to the interpretation presented here can apply to all those who fall under the Class B definition, but the argument focuses on owner-occupiers (i.e. those who both own and occupy domestic premises). Certainly local authorities seem most concerned to avoid liability for domestic owner-occupiers as can be seen below. The potential arguments against requiring a domestic owner-occupier to remediate the land also differ from the arguments relating to commercial owners or occupiers, not least when the practicalities of housing shortages are considered. The term 'homeowner' will be used here to refer to such domestic owner-occupiers. The reason why the role of such homeowners is so crucial is that, so far, most land determined as contaminated land is in domestic ownership - over 90 per cent of contaminated sites have homes on them.9

The actual process for determining what steps will be taken to remediate the land is complex and depends largely on whether the appropriate person decides to voluntarily remediate the land under the guidance of the local authority,10 or whether the enforcing authority serves a remediation notice on the appropriate person outlining the steps required.11 Normally the aim of the remediation will be to remove the contaminating substance and/or to break up the pathway between that substance and the receptor being harmed or potentially harmed, by the contaminating substance. The land must become 'suitable for use'12 so that it is no longer contaminated under its current use.13 The method used to achieve this should reach at least the same standard of clean-up as would be achieved by using the 'best practicable technique'14 (BPT) which is determined using a cost-benefit analysis.

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