Contaminated Land: Who is liable to remediate?
JULY 2010
The recent case of Crest Nicholson Residential Limited –v- Secretary of the State for the Environment ([2010] EWHC 561 (Admin)) is one of the first cases to give some indication of how the Courts will approach allocating liability under the Environmental Protection Act 1990 (“the 1990 Act”).
A site in Hertfordshire had been used since the 1950s to 1980 for chemical production by Redland Minerals Limited (“Redland”). As a result the site was contaminated by both bromide and bromate in the soil. Crest Nicholson Residential Limited (“Crest”), the residential developer, identified the site as one for potential development and carried out some testing as well as receiving information from Redland that there were chemicals present. Crest acquired the site from Redland in 1983. After demolishing the buildings on the site as well as breaking up areas of hard standing the site was left undeveloped for two and half years until 1986/7 when Crest carried out their residential development.
In 2000 the Local Authority found that the water course was being contaminated by the bromide & bromate and referred the matter to the Environment Agency who served remediation notices upon both Redland and Crest.
Under the 1990 Act the liability for remediation rests with the person or persons “who caused or knowingly permitted” the substances that contaminated the land. Both Redland and Crest appealed to the High Court who refused both appeals and ruled that both were liable.
Redland had contended that they were not liable as they had sold the site to Crest “with information” pursuant to the Defra Guidance and thus should be relieved of liability. It was held that the information that Redland provided was not sufficient to enable Crest to be aware of the extent of the bromide contamination but was sufficient in relation to the bromate contamination. Hence the liability of Redland was only partially limited.
Crest contended that they had not caused the contamination to be on the site as required by the 1990 Act. Furthermore Crest pointed out that prior to carrying out their residential development that they had removed a layer of 1 to 1.5 metres of soil from across the site. The Court held that the excavations by Crest were too shallow and failed to remove all of the contaminates which had penetrated further into the ground, in large part because of the greater exposure of the site to rainfall following the demolition works carried out by Crest and then their leaving the site fallow for two and half years.
The case demonstrates the difficulties facing both sellers and buyers of contaminated land. Selling “with information” does not necessarily relieve a seller of all liability. Buyers may well be liable for historic contamination even though they had carried out detailed due diligence investigations and the identity of the original polluter is known.
If you would like any further information about the issues raised in this article or any other aspect of property law please contact Simon Catt or any other member of Goodman Derrick LLP’s property department on 0207 404 0606.
This guide is for general information and interest only and should nit be relied upon as providing specific legal advice. |
