Unit 4:  Current Legislation Affecting UK Industry: Land

4.4.1.3  The Contaminated Land Regime Introduced By The Environment Act 1995

The passing of the EA 1995 brings together all of the legislation within the UK that relates to contaminated land.

Part II of EA 1995 amends the EPA 1990 through the insertion of the new part- IIA that covers the identification and remediation of contaminated land. The new provisions were adapted from a government policy review referring to two consultation papers:

  • Paying for our past (DoE paper; March 1991);
  • Framework for contaminated Land (DoE paper; November 1994).
The new regime has been delayed in its implementation in order for the burdens, such as financial on the local authorities can be studied. The main reasons for the delay are:
  • Costs of running the regime (a conservative estimate was £12 million per annum).
  • Necessity to define areas of the legislation, particularly to focus upon:
    1. Conservation and protection of wildlife and habitats.
    2. Environmental costs.
    3. Remediation Notice appeals.
    4. Non compliance through lack of money.
    5. Reduction of land values and blight of property.
Under Part IIA, local authorities must inspect their areas for signs of contaminated land. Statutory guidance will be issued by government detailing how this will be done. Where contaminated land has been identified, a Remediation Notice to clean up the site is issued by the local authority to the appropriate person. The Appropriate Person is anyone who caused or knowingly permitted any contaminants reaching the ground. If this person cannot be identified, the current occupier or owner of the land becomes liable for it's clean up. Causing or knowingly permitting are common concepts within environmental law and have been devised by the courts to be wide in scope and hence it lacks clarity. This situation can be summarised as:
  • CAUSING: this incorporates a positive action leading to pollution. Knowingly permitted indicates a failure to prevent pollution with knowledge present.

  • PERMITTING: a certain amount of control should be present here in order for pollution to be permitted or prevented. This includes contamination that is deep underground- as remediation techniques can now remove deep-seated contamination.
The owners and occupiers of the site are found liable for clean up. Should clean up be partly the responsibility of the party that has caused or knowingly permitted the contamination, the owner or occupier of the land may be liable for the rest of the clean up.

OWNER: this is the person who individually or who acts as a trustee for another person, receives the rack (open market) rent of the land, or should the land not be let at a rack rent, that person who would receive the rack rent if the land were let in this way. EA 1995 does not give a definition of the occupier. A likely definition is that person controlling a site, even though may not occupy the site.

In some situations two or more appropriate persons may be liable for contaminated land remediation. Such a situation may arise because of two or more persons have caused or knowingly permitted the presence of the polluting substances or that a person who has knowingly permitted has been identified and the owner and occupier are two different people. It is not possible to impose liability for clean up of the same pollutants upon both a person who has caused or knowingly permitted and an owner or occupier. In the case of two or more appropriate persons being present, the local authority must act along the Secretary of State's guidelines in order to identify which person(s) should be responsible for clean up and how the responsibilities should be shared out.

The guidance given by the Secretary of State gives a set of exclusionary tests, which help identify and order those liable for clean-up action and costs. The tests differ from those who caused or knowingly permitted (class A persons in the guidance) and owner/occupiers (class B persons). Class A tests are more wide ranging. For example, they do not make those persons which give financial assistance to another appropriate person, those giving advice to another appropriate person during the period of sale to aid them in the identification of contaminants being present or those who paid another person for site clean up, liable. Class B tests do not include those persons occupying under a license or those that pay a rack rent for the land. The results of the tests may make less people liable, and should more than one person remain as liable, there are other rules which local authorities may look to for further assistance.

It is always useful to consult an environmental lawyer for further advice on contaminated land issues, which are beyond the scope of this module.