The Contaminated Land Regime (“Regime“) governs the remediation of contaminated land in England and Wales and came into force on 1 April 2000. Over twenty years later, the Environment Act 1995 and the Environmental Protection Act 1990 (“EPA“) remain the key pieces of legislation.
What is contaminated land?
Under the EPA, land is ‘contaminated land’ if it appears to the local authority to be in a contaminated condition because there is:
- significant (or a significant possibility of) harm being caused; or
- pollution (or a significant possibility) of controlled waters).
If a local authority suspects that there is contaminated land within its boundaries, it must establish a ‘significant pollution linkage’ by identifying all of the following:
- Contaminant – the most common; contaminants are arsenic, lead and benzo(a)pyrene, but contaminants can also include oil, pesticides and asbestos;
- Pathway – this can include, air, earth, soil and running water; and
- Receptor – this is typically humans.
Remediation
If there is a risk of significant harm, and a significant pollution linkage, the local authority has a duty to require remediation of the site.
Some contaminated land can be considered a ‘special site’, which means that the responsibility for remediation of the contamination will be passed from the local authority to the Environment Agency. Special sites can include land within a nuclear site, land involving the manufacture of explosives and land owned or occupied by the Ministry of Defence.
All ‘interested persons’ must be notified of the contamination, which usually includes the owner and any occupiers of the contaminated land. A ‘remediation notice’ will be served on every ‘appropriate person’, specifying what they must do within a set timeframe. The ‘appropriate person’ can be either a Class A person (meaning the original polluter), or a Class B person (meaning the current owner or occupier of the land even if they didn’t cause the pollution) if the original polluter cannot be found or identified.
Liability
The general principle is ‘polluter pays’ and so a Class A person(s) would have the primary responsibility for remediation.
Liability will be apportioned between all ‘appropriate persons’ if there is more than one person in the polluting class. For Class A persons, the authority will consider the area, length of time in ownership or occupation, and whether there was a reasonable opportunity to remedy the contamination. For Class B persons, their interest in the capital value of the land will be considered.
However, DEFRA’s Contaminated Land Statutory Guidance outlines a number of exclusions for both Class A and Class B persons. For example, a Class A person can transfer its liability under the Regime to another person if the Class A person provides sufficient information about the contamination. This is how a seller often seeks to transfer liability to a buyer in a sale contract .
Sanctions
Failure to comply with a remediation notice is an offence resulting in a fine (in addition to the expensive clean-up cost) and the relevant authority may seek an injunction to force compliance with the notice. Company directors also can be held personally liable for environmental contamination.
Key points
- Prior to acquiring a property it is important to consider whether contamination may be present by instructing an environmental survey.
- An owner or occupier can be liable for remediation works even if they did not cause the contamination.
- The level of environmental survey required will depend on the type, location and current or former use of the land.
- Express contractual provisions can be used to transfer liabilities from one party to another and/or specifically require one party to carry out remediation works.