Contamination of land

The English countryside is scattered with landfill sites. These represent an important facility for householders and Councils to dispose of waste products ? but liability for land contamination and clear up can be a serious burden.

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The English countryside is scattered with landfill sites. These represent an important facility for householders and Councils to dispose of waste products – but liability for land contamination and clear up can be a serious burden.

A recent case has highlighted the risks in this area.

The Environmental Protection Act 1990 introduced the contaminated land regime which sets out the legal framework for identifying contaminated land and allocating responsibility for clean-up. Those who have caused or knowingly permitted the contamination carry the primary responsibility for clean-up. However, where they cannot be identified or no longer exist, then the responsibility falls on the current owner / occupier of the land.

The facts of the case in brief are that a Council in Wales ran a landfill site on a farm from the 1960's to 1993. Following a local government re-organisation, Powys County Council took over responsibility for the site in 1996. The Council assumed it has taken over liability for the site and became concerned about leakage of pollution into the nearly river. It entered into a lease with the landowners in August 2001 for the installation of a treatment plant. The Council carried on monitoring activity until 2015.

The landowners brought a case seeking a declaration that the contaminated land liability had transferred to Powys County Council. The Court of Appeal held that Powys could not be responsible for liability that may have arisen before the liabilities crated by the Environmental Protection Act 1990 came into existence. The Act did not operate retrospectively.

This is not good news for landowners whose land has at any time been used by a local authority as a landfill site. Landowners may have assumed that the local authorities retain responsibility for these sites – but this will not necessarily be the case.

The implications may be wider as contamination can affect neighbouring land.

If you have been affected by this or any similar issue, contact us.

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