Contaminated Land - The UK Regime is Getting Ready to Bite

Author:Mr Aidan Thomson
Profession:Barlow Lyde & Gilbert

The contaminated land regime, set out in Part IIA of the Environmental Protection Act 1990, came into force in England in April 2000. Those in the UK aviation industry - in particular manufacturers and airports - should note the provisions of this regime which are summarised here by Aidan Thomson from BLG's Environmental Group.

Whilst the enforcing authorities have been slow to use their new powers to date, it is widely acknowledged that this will not always be the case. Any company, including those in the aviation industry, that has polluted a property in the course of its activities or that currently owns or occupies historically contaminated property is at risk of liability under the new regime.

The Purpose of the Regime: The purpose of the regime is to identify and remediate unacceptable risks from contaminated land to specified "receptors". Broadly speaking, receptors are people, animals, designated ecological systems, buildings, commercial and domestic crops, and "controlled waters" (surface water, coastal water and groundwater). A risk is considered unacceptable if contamination results in significant harm or a significant possibility of significant harm.

Who is responsible for identifying contaminated land and enforcing the regime? Local authorities have the primary responsibility for the identification of contaminated land. They have prepared strategies for identification that they are now implementing. In addition, local authorities together with the Environment Agency (and the Scottish Environment Protection Agency ("SEPA")) are identifying a subset of contaminated properties with special characteristics. These are known as "special sites". In particular, a contaminated site that puts an aquifer at risk is a special site. Local authorities enforce the remediation of contaminated land and the Environment Agency (and SEPA) enforce the remediation of special sites.

Who is liable? Persons who "caused or knowingly permitted" the presence of the contaminants on the property are primarily liable for its remediation.

A person is considered to have "caused" contamination if its acts resulted in the contamination of the property in question. The person does not need to have been negligent. Nor does the person need to have owned or occupied the land in question.

A person is considered to have "knowingly permitted" contamination if it did not cause the contamination at a property but knew (or, perhaps, should have known) about the...

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