Who pays for the cost of cleaning up contaminated land?

Posted On: 04 July 2007

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The decision of the House of Lords in R (National Grid Gas plc) v Environment Agency, [2007] UKHL 30, (27 June 2007) will have significant implications in determining liability for clean up cost for historic environmental contamination.  In a case which leap-frogged the Court of Appeal (see R v Environment Agency ex p. National Grid Gas plc, [2006] 1 WLR 3041) the House of Lords has reversed the original decision and issued a judgement which potentially means that hard pressed public authorities may face the bill for expensive remediation works if no other appropriate person can be found.  The decision also has implications when considering the re-development of brown field sites.

The facts of the case illustrate the nature of the problem.  Residue from the production of coal gas created a residue which was buried on land that was later re-developed as residential properties and gardens.  Section 78E of the Environmental Protection Act 1990 sets out provisions concerning the remediation of contaminated land by an appropriate person.  Section 78F sets out provisions for determining the appropriate person to bear responsibility for the remediation.  The appropriate person in the first instance shall be "any person or persons who caused or knowingly permitted" the land to become contaminated land.  If no such person can be found after reasonable enquiry then the owner or occupier for the time being is an appropriate person.  Where there is an "appropriate person" then that person can be served with a notice requiring them to carry out remediation works.  Alternatively the enforcing authority (which in Scotland may either be the local authority or SEPA, depending on how serious the pollution may be) can carry out the remediation works and recover its costs from the appropriate person.  The enforcing authority has discretion not to recover the whole or any part of the costs of remediation from the appropriate person where this may cause hardship.

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